Douds, Kenneth Lee

PD-0857-14
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
March 16, 2015 Transmitted 3/16/2015 9:00:06 AM
Accepted 3/16/2015 9:26:10 AM
ABEL ACOSTA
No. PD-0857-14 CLERK
IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
_____________________________________________________________

NO. 14-12-00642-CR
IN THE COURT OF APPEALS
FOURTEENTH JUDICIAL DISTRICT OF TEXAS
HOUSTON, TEXAS
_____________________________________________________________

THE STATE OF TEXAS
Appellant

vs.

KENNETH LEE DOUDS
Appellee
_____________________________________________________________

NOTICE OF ADDITIONAL AUTHORITY

TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:

COMES NOW, THE STATE OF TEXAS, Appellant in the above cause, and
files this Notice of Additional Authorities. This notice is to inform the Court of
Criminal Appeals of the following cases for their consideration in the above cause
set for submission on Oral Argument on March 18, 2015 at 9:00 A.M. Both of these
cases held that the defendant failed to preserve error under circumstances similar
to the instant case:
Cases:
Lyssy v. State, 01-12-00898-CR, 2014 WL 714924 (Tex. App. – Houston [1st

Dist.] Feb 6, 2014, no pet.)(not designated for publication);

1
 Kay v. State, 01-13-00595-CR, 2014 WL 3697917 (Tex. App. – Houston [1st

Dist.] July 24, 2014, no pet.)(not designated for publication).

Respectfully submitted,

/S/ DAVID BOSSERMAN
David Bosserman
Assistant Criminal District Attorney
SBN 0267520
111 East Locust, Suite 408A
Angleton, Texas 77515
(979) 864-1232
Fax (979) 864-1525

CERTIFICATE OF SERVICE

I hereby certify that a true copy of this State’s Notice of Additional
Authority was served by E-service on Charles D. Adams, attorney for Appellee, in
compliance with Rule 9.5 of the Rules of Appellate Procedure. A copy was also
served by E-service on the State Prosecuting Attorney in compliance with Rule
68.11 of the Rules of Appellate Procedure. E-service was completed on this the
16th day of March, 2015.

Charles D. Adams Lisa C. McMinn
Attorney for Appellee-Defendant State Prosecuting Attorney
7930 Broadway, Suite 106 P.O. Box 13046
Pearland, Texas 77581 Austin, Texas 78711
Bar No. 24026760 Bar No. 13803300
Email: cda@cdadamslaw.com Email: Lisa.McMinn@spa.texas.gov

2
Lyssy v. State, 429 S.W.3d 37 (2014)
2014 WL 714924

take breath or blood samples from a suspect
arrested for driving while intoxicated (DWI)
429 S.W.3d 37
when the officer has reliable information from
Court of Appeals of Texas,
a credible source that the suspect has two prior
Houston [1st Dist.].
DWI convictions, where defendant's motion
Michael Joe LYSSY, Appellant to suppress, as it developed at the hearing,
v. demonstrated that his challenge at trial was based
The STATE of Texas, Appellee. solely on a failure to observe the statute's terms,
not an attack on the constitutionality of what
No. 01–12–00898–CR. | Feb. 6, 2014. it authorized. Rules App.Proc., Rule 33.1(a);
V.T.C.A., Transportation Code § 724.012(b).
Synopsis
Background: After his motion to suppress evidence was 2 Cases that cite this headnote
denied, defendant entered nolo contendere plea in the County
Court at Law No. 2, Galveston County, Barbara Roberts, J., [2] Criminal Law
to driving while intoxicated (DWI). Defendant appealed. Adding to or changing grounds of objection
110 Criminal Law
110XXIV Review
Holdings: The Court of Appeals, Michael Massengale, J., 110XXIV(E) Presentation and Reservation in
held that: Lower Court of Grounds of Review
110XXIV(E)1 In General
110k1043 Scope and Effect of Objection
[1] defendant waived for appellate review issue as to
110k1043(3) Adding to or changing grounds of
constitutionality of taking blood under DWI statute, and
objection
To preserve the issue for appellate review,
[2] dispatcher's notice of two prior DWI convictions was
the appellant's issue must correspond with the
reliable so as to require taking of breath or blood sample.
objection he made at trial. Rules App.Proc., Rule
33.1(a).
Affirmed.
1 Cases that cite this headnote

Evelyn V. Keyes, J., issued dissenting opinion.
[3] Criminal Law
Adding to or changing grounds of objection
110 Criminal Law
West Headnotes (11)
110XXIV Review
110XXIV(E) Presentation and Reservation in
[1] Criminal Law Lower Court of Grounds of Review
Sufficiency and Scope of Motion 110XXIV(E)1 In General
110k1043 Scope and Effect of Objection
110 Criminal Law
110k1043(3) Adding to or changing grounds of
110XXIV Review
objection
110XXIV(E) Presentation and Reservation in
An objection stating one legal theory may not be
Lower Court of Grounds of Review
used to support a different legal theory on appeal;
110XXIV(E)1 In General
110k1044 Motion Presenting Objection
this is true even if the alleged error implicates
110k1044.2 Sufficiency and Scope of Motion constitutional guaranties. Rules App.Proc., Rule
110k1044.2(1) In general 33.1(a).
Defendant waived for appellate review issue
1 Cases that cite this headnote
as to constitutionality of taking blood under
statute requiring law enforcement officers to

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
Lyssy v. State, 429 S.W.3d 37 (2014)
2014 WL 714924

[4] Criminal Law Cases that cite this headnote
Necessity of specific objection
110 Criminal Law [7] Criminal Law
110XXIV Review
Necessity of specific objection
110XXIV(E) Presentation and Reservation in
110 Criminal Law
Lower Court of Grounds of Review
110XXIV Review
110XXIV(E)1 In General
110k1043 Scope and Effect of Objection 110XXIV(E) Presentation and Reservation in
110k1043(2) Necessity of specific objection Lower Court of Grounds of Review
110XXIV(E)1 In General
The purpose of requiring a specific objection
110k1043 Scope and Effect of Objection
in the trial court is twofold: (1) to inform the
110k1043(2) Necessity of specific objection
trial judge of the basis of the objection and give
When the correct ground for exclusion was
him the opportunity to rule on it; (2) to give
obvious to the judge and opposing counsel, no
opposing counsel the opportunity to respond to
forfeiture results from a general or imprecise
the complaint. Rules App.Proc., Rule 33.1(a).
objection; on the other hand, when the
Cases that cite this headnote context shows that a party failed to effectively
communicate his argument, then the error will be
deemed forfeited on appeal.
[5] Criminal Law
Necessity of specific objection Cases that cite this headnote
110 Criminal Law
110XXIV Review
[8] Criminal Law
110XXIV(E) Presentation and Reservation in
Scope and Effect of Objection
Lower Court of Grounds of Review
110XXIV(E)1 In General 110 Criminal Law
110k1043 Scope and Effect of Objection 110XXIV Review
110k1043(2) Necessity of specific objection 110XXIV(E) Presentation and Reservation in
A party must be specific enough so as to let the Lower Court of Grounds of Review
110XXIV(E)1 In General
trial judge know what he wants, why he thinks
110k1043 Scope and Effect of Objection
himself entitled to it, and do so clearly enough for
110k1043(1) In general
the judge to understand him at a time when the
A complaint that could, in isolation, be read
trial court is in a proper position to do something
to express more than one legal argument will
about it. Rules App.Proc., Rule 33.1(a).
generally not preserve all potentially relevant
Cases that cite this headnote arguments for appeal. Rules App.Proc., Rule
33.1(a).

[6] Criminal Law Cases that cite this headnote
Scope and Effect of Objection
110 Criminal Law [9] Automobiles
110XXIV Review
Grounds or cause; necessity for arrest
110XXIV(E) Presentation and Reservation in
48A Automobiles
Lower Court of Grounds of Review
48AIX Evidence of Sobriety Tests
110XXIV(E)1 In General
48Ak417 Grounds for Test
110k1043 Scope and Effect of Objection
48Ak419 Grounds or cause; necessity for arrest
110k1043(1) In general
To decide whether a general complaint was When police officer heard from his dispatcher
sufficient to preserve error for appellate review, that defendant had been convicted of “DWI
context must be considered. Rules App.Proc., Second Conviction,” officer possessed reliable
Rule 33.1(a). information from a credible source that

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2
Lyssy v. State, 429 S.W.3d 37 (2014)
2014 WL 714924

defendant had been convicted twice of driving Ultimately, the appellate court will sustain the
while intoxicated (DWI), thus requiring officer trial court's ruling on a motion to suppress
to take breath or blood sample from defendant; evidence if its ruling is reasonably supported by
while the information communicated to officer the record and is correct on any theory of law
could have been characterized as being applicable to the case.
incomplete insofar as the dispatcher did not
also mention a first conviction for DWI, officer Cases that cite this headnote
was not required to further investigate the
information he received before being entitled to
rely on it in the field. V.T.C.A., Transportation
Code § 724.012(b). Attorneys and Law Firms

1 Cases that cite this headnote *38 Tad Nelson, Amber Spurlock, Tad Nelson &
Associates, League City, TX, for Appellant.

[10] Criminal Law Jack Roady, District Attorney, Rebecca Klaren, Assistant
Review De Novo District Attorney, Galveston County, Galveston, TX, for
Criminal Law Appellee.
Evidence wrongfully obtained
Panel consists of Justices KEYES, HIGLEY, and
110 Criminal Law
MASSENGALE.
110XXIV Review
110XXIV(L) Scope of Review in General
110XXIV(L)13 Review De Novo
110k1139 In general OPINION
110 Criminal Law
110XXIV Review MICHAEL MASSENGALE, Justice.
110XXIV(O) Questions of Fact and Findings
110k1158.8 Evidence **1 This appeal concerns a Texas statute which requires a
110k1158.12 Evidence wrongfully obtained law enforcement officer to take a blood sample from a suspect
A trial court's decision on a motion to suppress is arrested for driving while intoxicated when the officer has
reviewed using a bifurcated standard of review; reliable information from a credible source that the suspect
while the appellate court shows almost total has two prior convictions for driving while intoxicated.
deference to the trial court's determinations of SeeTEX. TRANSP. CODE ANN. § 724.012(b) (West 2011).
historical fact, the appellate court reviews the Appellant Michael Joe Lyssy was charged by information
trial court's application of the law of search with the misdemeanor offense of driving while intoxicated.
and seizure to the facts de novo. U.S.C.A. SeeTEX. PENAL CODE ANN. § 49.04 (West 2011). Lyssy
Const.Amend. 4. moved to suppress evidence of a blood draw taken the night of
his arrest. He argued that the report of his criminal history on
Cases that cite this headnote which the officer relied was not reliable or credible because
it listed a conviction for “driving while intoxicated 2nd”
[11] Criminal Law but no prior DWI conviction. The trial court denied this
Theory and Grounds of Decision in Lower motion. After the trial court denied his motion to suppress,
Court Lyssy entered a plea of nolo contendere and was convicted of
driving while intoxicated.
110 Criminal Law
110XXIV Review
In his sole appellate issue, Lyssy argues that the trial court
110XXIV(L) Scope of Review in General
110XXIV(L)5 Theory and Grounds of Decision erred by denying his motion to suppress. We affirm.
in Lower Court
110k1134.60 In general

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3
Lyssy v. State, 429 S.W.3d 37 (2014)
2014 WL 714924

It's ... the database of all criminal
Background histories, both within Texas and
nationally. It's administered by the
Officer Gavino Rivas of the League City Police Department
individual law enforcement agencies.
stopped Lyssy for failing to maintain a single lane of traffic.
For League City, we place everything
*39 Rivas performed a field sobriety test. He also asked
there, from stolen vehicles, missing
Lyssy to blow into a breathalyzer, but was refused. He then
children, warrants, things like that; and
arrested Lyssy.
we're responsible for administering
our portion of the database.
Rivas called League City dispatch and asked for a report
on Lyssy from two databases, the Texas Crime Information Rivas was asked how often he relies on information from
Center and the National Crime Information Center (TCIC/ TCIC/NCIC. He replied, “any incident, any contact with a
NCIC). Rivas provided Lyssy's license plate number and potential subject, we rely on the returns given by our dispatch
his driver's license number to query. The resulting report via TCIC/NCIC.” He testified that he has found information
listed multiple event cycles, including an arrest nearly seven from TCIC/NCIC to be credible and reliable in the past. When
years earlier, which the database reported resulted in a guilty questioned whether he had ever had a problems with the
plea and conviction for the class A misdemeanor offense of accuracy of information from the databases, he answered,
“driving while intoxicated 2nd.” No other DWI conviction “On a general basis, no, sir.” The trial court denied the motion
was included in the report. to suppress.

Dispatch orally reported its findings to Rivas over the radio. Pursuant to a plea bargain, Lyssy pleaded nolo contendere and
In Rivas's words, “The results came back that Mr. Lyssy's was sentenced by the trial court to 365 days in jail, in addition
license was suspended, that he had prior convictions for to a $300 fine. The court suspended this sentence and imposed
driving while license suspended, and he had ... a conviction a twenty-four month term of community supervision. The
for DWI second conviction.” Rivas testified that he did not trial court certified his right to appeal its decision on the
remember hearing anything about a first offense for DWI. motion to suppress.

Based upon this information and the mandatory blood-draw
statute (Transportation Code chapter 724), Rivas requested a
sample of Lyssy's blood without obtaining a warrant. Lyssy Analysis
refused. Rivas transported him to the hospital where one of
In his appellate brief, Lyssy offers two reasons why the blood
its employees extracted a blood specimen.
evidence should have been suppressed. His first reason is
that the statute relied upon by the State to justify the blood
At the subsequent hearing on Lyssy's motion to suppress
draw, TEX. TRANSP. *40 CODE ANN. § 724.012(b), is
the evidence resulting from the blood draw, Rivas testified,
no longer a legitimate basis for search in light of Missouri v.
“From the information I have now ... he did not have
McNeely, ––– U.S. ––––, 133 S.Ct. 1552, 185 L.Ed.2d 696
two convictions.” He also testified that on the night of the
(2013). His second reason is that the statute itself was not
arrest, he relied on the TCIC/NCIC report to conclude that
satisfied because the officer lacked reliable information that
Lyssy “did have two prior convictions for driving while
Lyssy had two prior convictions for driving while intoxicated,
intoxicated,” and at the time he had no reason to doubt that
as would require a blood draw under the statute.
information from the report.

The relevant portion of the Transportation Code reads as
**2 The TCIC database is maintained by the Texas
follows:
Department of Public Safety. Both TCIC and NCIC are
updated “24/7.” Each participating law enforcement agency (b) A peace officer shall require the taking of a specimen
inputs its own information on arrests. It is the responsibility of of the person's breath or blood under any of the following
each agency to check the information it inputs for accuracy. circumstances if the officer arrests the person for an offense
As Rivas described TCIC/NCIC: under Chapter 49, Penal Code, involving the operation of
a motor vehicle or a watercraft and the person refuses

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4
Lyssy v. State, 429 S.W.3d 37 (2014)
2014 WL 714924

the officer's request to submit to the taking of a specimen (Tex.Crim.App.1990)). This is true even if the alleged error
voluntarily: implicates constitutional guaranties. Id.

... [4] [5] “The purpose of requiring a specific objection in
the trial court is twofold: (1) to inform the trial judge of the
(3) at the time of the arrest, the officer possesses or
basis of the objection and give him the opportunity to rule
receives reliable information from a credible source
on it; (2) to give opposing counsel the opportunity to respond
that the person:
to the complaint.” Resendez v. State, 306 S.W.3d 308, 312
... (Tex.Crim.App.2009). “[A] party must be specific enough so
as to ‘let the trial judge know what he wants, why he thinks
(B) on two or more occasions, has been previously himself entitled to it, and do so *41 clearly enough for the
convicted of or placed on community supervision judge to understand him at a time when the trial court is in a
for an offense under Section 49.04 [Driving While proper position to do something about it.’ ” Id. at 313.
Intoxicated], 49.05, 49.06, or 49.065, Penal Code, or
an offense under the laws of another state containing [6] [7] To decide whether a general complaint was
elements substantially similar to the elements of an sufficient to preserve error, context must be considered.
offense under those sections. Id.“When the correct ground for exclusion was obvious to
the judge and opposing counsel, no forfeiture results from
**3 (c) The peace officer shall designate the type of a general or imprecise objection.” Id. On the other hand,
specimen to be taken. “when the context shows that a party failed to effectively
communicate his argument, then the error will be deemed
TEX. TRANSP. CODE ANN. § 724.012(b)(3)(B), (c). When
forfeited on appeal.” Id.
a person is arrested under the circumstances described in
section 724.012(b), that person's refusal to submit to the
The arguments and evidence at the hearing were narrowly
taking of the specimen does not suspend the officer's statutory
focused on whether the information requirements of section
duty to take it. Id. § 724.013.
724.012(b)(3) were satisfied. The constitutionality of a search
pursuant to the statute was not called into doubt. Looking
I. Waiver of constitutional challenge to section to Lyssy's written motion to suppress, he likewise did not
724.012(b) specifically challenge the constitutionality of blood draws
[1] In his brief, Lyssy asserts that extraction of blood made under the statute's authority. CR 17–20. Although he
pursuant to section 724.012(b) is unconstitutional given the did complain that the search was warrantless and conducted
Supreme Court's decision in McNeely. However, Lyssy did in the absence of exigent circumstances, he did so in a general
not argue before the trial court that blood extraction pursuant form:
to section 724.012(b) was unconstitutional. Lyssy's argument
**4 The warrantless stop and search
at the hearing on his motion to suppress was directed solely
of the Defendant and the automobile
at whether the statutory predicates for a blood draw were
and Defendants' personal property and
satisfied. RR 37–43. At no point during the hearing did he
the interrogation of Defendant by the
attack the legitimacy of the statute as a basis for taking blood
police were void and illegal because
in the absence of a warrant.
they were conducted in the absence
of exigent circumstances to stop the
[2] [3] In order for a defendant to preserve his complaint
vehicle which Defendant was driving
for appellate review, he must present to the trial court
and search him and the vehicle.
a timely objection, request, or motion stating the specific
grounds for the ruling he wishes. TEX.R.APP. P. 33.1(a). (Emphasis supplied.) Considered in context, we conclude that
An appellant's issue must correspond with the objection this language was not sufficient to inform the trial court and
he made at trial. Broxton v. State, 909 S.W.2d 912, 918 opposing counsel of a challenge to the validity of searches
(Tex.Crim.App.1995). “ ‘An objection stating one legal under section 724.012(b). See id. at 312; cf. Buchanan v.
theory may not be used to support a different legal theory on State, 207 S.W.3d 772, 777 (Tex.Crim.App.2006) ( “[T]rial
appeal.’ ” Id. (quoting Johnson v. State, 803 S.W.2d 272, 292 counsel's allusions to ‘consent’ and ‘exigent circumstances'

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 5
Lyssy v. State, 429 S.W.3d 37 (2014)
2014 WL 714924

do not necessarily or exclusively refer to Chapter 14, so as to court's ruling if its ruling is ‘reasonably supported by the
make it ‘obvious' that the appellant was raising it in addition record and is correct on any theory of law applicable to the
to his purely constitutional claims.”). case.’ ” Valtierra, at 447–48 (quoting State v. Dixon, 206
S.W.3d 587, 590 (Tex.Crim.App.2006)).
[8] It is true that Lyssy's appellate objection to the
constitutionality of the search hinges on his claim that exigent **5 The Transportation Code establishes that motor vehicle
circumstances were absent. Still, this is not sufficient to operators who are arrested for DWI offenses are deemed to
interpret Lyssy's written motion to suppress as a challenge have consented, subject to the remainder of the chapter, “to
to the constitutionality of searches pursuant to the statute. the taking of one or more specimens of the person's breath or
This is because “a complaint that could, in isolation, be blood for analysis to determine the alcohol concentration or
read to express more than one legal argument will generally the presence in the person's body of a controlled substance,
not preserve all potentially relevant arguments for appeal.” drug, dangerous drug, or other substance.” TEX. TRANSP.
Resendez, 306 S.W.3d at 314. As the Court of Criminal CODE ANN. § 724.011(a). 2 Separate from the concept of
Appeals has held, “Only when there are clear contextual clues implied consent by drivers arrested on suspicion of DWI,
indicating that the party was, in fact, making a particular the statute also requires an officer to take a breath or blood
argument will that argument be preserved.” Id. The context specimen when “at the time of the arrest, the officer possesses
of the motion to suppress, as it developed at the hearing, or receives reliable information from a credible source that
demonstrates that Lyssy's challenge was based solely on a the person ... on two or more occasions, has been previously
failure to observe the statute's terms, not an attack on the convicted of or placed on community supervision for [driving
constitutionality of what it authorizes. See id. We conclude
while intoxicated] ....”Id.§ 724.012(b)(3). 3
that Lyssy forfeited his objection to the constitutionality of
taking blood under section 724.012(b). See id. at 316–17. As
2 The dissent misreads the statute when it alleges that
such, we assume, without deciding, the constitutionality of
our holding “vitiates” the implied consent statute. As
section 724.012(b) for purposes of this appeal. 1
noted above, the consent that is “deemed” by the statute
is triggered by the arrest for the DWI offense, and
1 The dissent declares McNeely to be “inapplicable” on the that deemed consent is not conditioned on two prior
merits. This is an unresolved issue. See, e.g., Aviles v. DWI convictions. SeeTEX. TRANSP. CODE ANN. §
Texas, –––U.S. ––––, 134 S.Ct. 902, 187 L.Ed.2d 767 724.011(a) (West 2011). The statute anticipates that
(2014) (order vacating judgment and remanding case for despite this deemed consent, a person nevertheless may
reconsideration in light of McNeely ). refuse the request of a peace officer to submit to the
taking of a specimen. In that event, certain consequences
II. Reliability of information to justify blood draw result, including license suspension and confiscation.
[9] [10] [11] Lyssy's second argument is that even See, e.g., id. § 724.032.
if section 724.012(b) is a constitutional *42 basis for a 3 The officer's possession or receipt of “reliable
warrantless search, “the blood draw must still be excluded information from a credible source that the person ... on
because the information received by Officer Rivas had two or more occasions, has been previously convicted of
an error on its face making it internally inconsistent and or placed on community supervision for [driving while
unreliable.” We review a trial court's decision on a motion intoxicated],”id.§ 724.012(b)(3), is therefore significant
to suppress using a bifurcated standard of review. Valtierra not as a precondition for deemed consent, as suggested
v. State, 310 S.W.3d 442, 447 (Tex.Crim.App.2010). While by the dissent, but instead because it is one of the
we show “almost total deference” to the trial court's conditions under which a peace officer “shall require”
determinations of historical fact, we review its application of the taking of the specimen, even in the face of the
person's refusal to submit voluntarily. Id.§ 724.012(b).
the law of search and seizure to the facts de novo. Id. Since
Accordingly, the dissent's suggestion that the court
the trial judge in this case did not make express findings of
holds “that an officer's subjective belief that an implied
fact, we will imply “the necessary fact findings that would
consent statute has been satisfied is sufficient to imply
support the trial court's ruling if the evidence (viewed in the consent” completely misconstrues both the operation of
light most favorable to the trial court's ruling) supports these the statute and our application of it, and we disavow that
implied fact findings.” State v. Kelly, 204 S.W.3d 808, 819 mischaracterization of our holding.
(Tex.Crim.App.2006). Ultimately, “[w]e will sustain the trial

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 6
Lyssy v. State, 429 S.W.3d 37 (2014)
2014 WL 714924

Lyssy does not challenge the credibility of TCIC/NCIC as a
source of information or the credibility of the League City **6 In the present case, Rivas was told by the dispatcher that
Police Department dispatcher as a conduit of TCIC/NCIC Lyssy had a conviction for “DWI Second Conviction.” As
information to an officer in the field. What he does challenge in Comperry, this information implied multiple convictions
is the reliability of the information Rivas received from the for driving while intoxicated. See id. While the information
dispatcher: he asserts that it contained an error that made communicated to Rivas could be characterized as being
it internally inconsistent. Specifically, Rivas was told that incomplete insofar as the dispatcher did not also mention
Lyssy had a conviction for “DWI Second Conviction,” but a first conviction for DWI, Rivas did not have to further
he was not specifically informed of any other convictions investigate the information he received “before being entitled
*43 for driving while intoxicated. Lyssy thus argues that to rely on it” in the field. See id.; see also State v.
the information Rivas received was patently inconsistent and Terrazas, 406 S.W.3d 689, 694 (Tex.App.-El Paso 2013,
therefore unreliable. no pet.) (“[L]aw enforcement investigating or confirming
criminal history is not a requirement under [the blood draw
Rivas testified that he relies on TCIC/NCIC for “any contact statute].”). 4
with a potential subject,” that he has found information from
the database to be credible and reliable, and that “on a general 4 Like the court in State v. Flores, 392 S.W.3d 229
basis,” he has had no problems with the accuracy of the
(Tex.App.-San Antonio 2012, pet. ref'd), “we do not
database. Any discrepancy inferred from the bare fact that
mean to suggest that information contained in the NCIC/
Rivas was informed of a “DWI Second Conviction” but TCIC is per se reliable.” Id. at 237. Nothing in our
not a first conviction for driving while intoxicated did not opinion should be taken to suggest the impropriety of
necessarily render the information Rivas received from his a challenge to reliance on such information given an
dispatcher unreliable. appropriate record. See id. (“[A] trial court must make
the finding of reliability of the information based on the
In Comperry v. State, an officer arrested the defendant for specific evidence presented.”).
driving while intoxicated and took him to jail. 375 S.W.3d Later, with the benefit of additional information obtained by
508, 510 (Tex.App.-Houston [14th Dist.] 2012, no pet.). the time of the hearing on the motion to suppress, Rivas
Once there, the officer obtained a TCIC printout for the testified that the report contained an error. But nothing
defendant. Id. The report listed two convictions for driving contained in the information received from TCIC/NCIC or
while intoxicated, one in Harris County and one in Galveston in the information communicated by the dispatcher to Rivas
County. Id. In reality, the defendant had only been convicted rose to the level of a *44 glaring contradiction that would
once of DWI. Id. at 511. The event cycle for the Galveston undermine the general reliability of the information coming
County matter recited that the defendant had been arrested from a source that has not been challenged on the basis
for DWI. Id. at 510. It then listed two convictions—one for of its credibility. The trial court therefore reasonably could
obstructing a highway and one for DWI—but the defendant have concluded that the report's inclusion of a conviction
actually had been convicted only of obstructing a highway. Id. specifically identified as “driving while intoxicated 2nd” was
The defendant further argued that the information contained not rendered facially unreliable simply because the report did
in the TCIC report contained “facial irregularities” because not also separately identify the preceding DWI conviction.
the convictions were “the result of the same plea on the same
date, in the same court, and under the same cause number.” We conclude that the record supports the conclusion that
Id. at 516–17. The defendant argued that the irregularities when Rivas heard from his dispatcher that Lyssy had
should have alerted the officer and spurred an investigation been convicted of “DWI Second Conviction,” he possessed
of the underlying facts. Id. Despite the trial court's finding reliable information from a credible source that Lyssy had
that the information was “confusing and possibly incorrect in been convicted twice of driving while intoxicated. See
the way it [was] displayed,”id. at 511, the court of appeals Terrazas, 406 S.W.3d at 694; State v. Flores, 392 S.W.3d 229,
rejected the defendant's position. See id. at 517. It reasoned 238 (Tex.App.-San Antonio 2012, pet. ref'd); Comperry, 375
that the TCIC record “plainly reflected” multiple convictions S.W.3d at 518. We therefore overrule Lyssy's issue.
for driving while intoxicated and that an officer need not “so
closely examine a TCIC report before being entitled to rely
on it.” Id.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 7
Lyssy v. State, 429 S.W.3d 37 (2014)
2014 WL 714924

At the subsequent hearing on Lyssy's motion to suppress the
Conclusion
evidence resulting from the blood draw, it became clear that
We affirm the judgment of the trial court. Lyssy had only one previous DWI conviction and that the
TCIC/NCIC report had labeled his 2004 DWI conviction as
“driving while intoxicated 2nd.” Officer Rivas testified that,
although he relied on the TCIC/NCIC report to conclude
KEYES, J., dissenting. that Lyssy had two prior DWI convictions at the time *45
of his arrest for the current offense, he understood “[f]rom
EVELYN V. KEYES, Justice, dissenting.
the information [he has] now” that Lyssy did not have two
**6 I respectfully dissent. Appellant Michael Joe Lyssy
convictions.
pleaded nolo contendere to the misdemeanor offense of
driving while intoxicated (“DWI”) pursuant to a plea bargain
and the trial court sentenced him to 365 days in jail and
imposed a $300 fine. 1 The court suspended this sentence Analysis
and imposed a twenty-four month term of community
Lyssy argues that the blood evidence should have been
supervision. Lyssy appeals the trial court's denial of his
suppressed because (1) the statute relied upon by the State
motion to suppress evidence of a blood draw taken the night
to justify the blood draw, Texas Transportation Code section
of his arrest on the ground that he did not consent to the
724.012(b), is no longer a legitimate basis for search in
warrantless blood draw upon which he was convicted and
light of Missouri v. McNeely, ––– U.S. ––––, 133 S.Ct.
that his constitutional rights were thereby violated. I agree. I
1552, 185 L.Ed.2d 696 (2013) and (2) the conditions for
would reverse and remand for a new trial.
implying consent to draw blood without a warrant under
section 724.012(b) itself were not satisfied and, therefore,
1 SeeTEX. PENAL CODE ANN. § 49.04 (West the blood draw violated his constitutional rights. SeeTEX.
Supp.2011).
TRANSP. CODE ANN. § 724.012(b)(3) (West 2011).

The taking of a blood specimen is a search and seizure
Background
under the Fourth Amendment. Schmerber v. California,
Officer G. Rivas of the League City Police Department 384 U.S. 757, 767, 86 S.Ct. 1826, 1834, 16 L.Ed.2d 908
stopped Lyssy for failing to maintain a single lane of traffic. (1966). A warrantless search or seizure is per se unreasonable
Officer Rivas performed a field sobriety test. He also asked unless it falls under a recognized exception to a warrant.
Lyssy to blow into a breathalyzer, but Lyssy refused. Officer Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507,
Rivas then arrested Lyssy. Officer Rivas called League City 514, 19 L.Ed.2d 576 (1967); Walter v. State, 28 S.W.3d
dispatch and requested a report on Lyssy from two databases, 538, 541 (Tex.Crim.App.2000). One such exception is a
the Texas Crime Information Center and the National Crime search conducted pursuant to consent. See Schneckloth v.
Information Center (“TCIC/NCIC”). The resulting report Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043–44,
showed that Lyssy had been convicted in 2004 for the offense 36 L.Ed.2d 854 (1973). The Court of Criminal Appeals
of “driving while intoxicated 2nd.” No other DWI conviction has stated that “[t]he implied consent law does just that
was included in the report. —it implies a suspect's consent to a search in certain
instances. This is important when there is no search warrant,
**7 Officer Rivas testified that he understood from since it is another method of conducting a constitutionally
dispatch's oral report that Lyssy “had ... a conviction for valid search.” Beeman v. State, 86 S.W.3d 613, 615
DWI second conviction.” However, he also testified that he (Tex.Crim.App.2002). The court held,
did not remember hearing anything about a driving while
The implied consent law expands
intoxicated, first offense. Based on his understanding of the
on the State's search capabilities by
TCIC/NCIC report, he requested a sample of Lyssy's blood
providing a framework for drawing
without obtaining a warrant. Lyssy refused. Rivas transported
DWI suspects' blood in the absence
him to a hospital, and one of its employees extracted a blood
of a search warrant. It gives
specimen.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 8
Lyssy v. State, 429 S.W.3d 37 (2014)
2014 WL 714924

officers an additional weapon in their 49.06, or 49.065, Penal Code....”TEX. TRANSP. CODE
investigative arsenal, enabling them ANN. § 724.012(b)(3)(B) (emphasis added). Section 724.013
to draw blood in certain limited provides, “Except as provided by Section 724.012(b), a
circumstances even without a search specimen may not be taken if a person refuses to submit to
warrant. the taking of a specimen designated by a peace officer.” Id.
§ 724.013 (West 2011).
Id. at 616.
Here, Officer Rivas received information from a reliable
Both the United States Supreme Court and the Court of source relating Lyssy's prior DWI history, as required by
Criminal Appeals have recognized a two-part analysis for section 724.012(b)(3)(B)—but that dispatch report listed only
determining the legality of a blood draw: reviewing courts one prior DWI conviction. The officer's explanation for his
must determine (1) whether the police were justified in ordering the blood drawn—that he believed from the report
requiring the defendant to submit to a blood test and (2) that Lyssy actually had two previous DWI convictions—does
whether the means and procedures employed in taking the not alter the fact that the statutory conditions for implying
blood respected the relevant Fourth Amendment standards of Lyssy's consent to the blood draw were not met. Indeed,
reasonableness. See State v. Johnston, 336 S.W.3d 649, 658 the majority's holding—that an officer's subjective belief that
(Tex.Crim.App.2011) (citing Schmerber, 384 U.S. at 768, 86 an implied consent statute has been satisfied is sufficient to
S.Ct. at 1834). imply consent—vitiates both the implied consent statute and
the underlying constitutional concept of implied consent to a
**8 Appellant argues that the United States Supreme Court's warrantless search. Under the majority's reading of the statute,
recent holding in Missouri v. McNeely invalidates his blood consent to a warrantless search is implied whenever an officer
draw. I disagree. In McNeely, the Supreme Court clarified the believes in good faith that he has complied with the law in
meaning of “exigency” in the context of a warrantless blood ordering a search. Neither the implied consent statute nor
draw, holding that the natural metabolization of alcohol in the constitutional Fourth Amendment restrictions on searches
the bloodstream, without more, does not constitute exigent and seizures would have any meaning if the beliefs of police
circumstances; rather, “exigency” must be determined case- officers were their own warrant for the validity of a search of
by-case based on the totality of the circumstances. 133 a person or place or the seizure of a blood specimen regardless
S.Ct. at 1560, 1568. Nothing in that opinion invalidated of the facts.
Texas's implied consent statute. In fact, in Section III
of McNeely, Justice Sotomayor, writing for a four-justice **9 I would hold that the subjective beliefs of an officer
plurality, implicitly characterized implied consent statutes, do not satisfy the objective requirements of the implied
including a specific reference to section 724.012(b), as consent statute. The implied consent statute required that
collateral to the exigency concerns underlying the issue Officer Rivas have reliable information from a credible
before the Supreme Court. Id. at 1566–67 & n. 9. Thus, source that Lyssy had at least two prior DWI convictions,
I conclude that McNeely is inapplicable to the current but Lyssy had only one previous conviction—Officer Rivas's
case, which involved the application of Texas's implied misunderstanding of the report notwithstanding. The fact
*46 consent statute, and it does not render that statute that the report labeled Lyssy's single previous conviction as
unconstitutional. “driving while intoxicated 2nd” might make Officer Rivas's
belief at the time he subjected Lyssy to the blood draw
Texas's implied consent statute, Transportation Code section reasonable, but it does not alter the material facts—the report
724.012(b)(3)(B), provides that “[a] peace officer shall listed only one previous DWI conviction, and Lyssy, in fact,
require the taking of a specimen of the person's breath or had only one prior DWI conviction. Section 724.012(b)(3)
blood ... if the officer arrests the person for an offense under (B), by its plain language, does not imply consent when a
Chapter 49, Penal Code, involving the operation of a motor suspect has only one previous DWI conviction. Therefore, in
vehicle ... and the person refuses the officer's request to the absence of a search warrant or actual consent, the blood
submit to the taking of a specimen voluntarily” if, “at the evidence here is not admissible.
time of the arrest, the officer possesses or receives reliable
information from a credible source that the person ...on I would hold that because the statutory conditions for
two or more occasions, has been previously convicted of ... implying Lyssy's consent to the search were not satisfied,
an offense under Section 49.04 [the DWI statute], 49.05,

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 9
Lyssy v. State, 429 S.W.3d 37 (2014)
2014 WL 714924

the evidence of the warrantless blood draw should have been
I would therefore sustain Lyssy's point of error.
suppressed.

“If the appellate record in a criminal case reveals
constitutional error that is subject to harmless error review, Conclusion
the court of appeals must reverse a judgment of conviction or
punishment unless the court determines beyond a reasonable For the foregoing reasons, I would reverse the judgment of
doubt that the error did not contribute to the *47 conviction the trial court and remand for a new trial.
or punishment.” TEX.R.APP. P. 44.2. I cannot conclude
beyond a reasonable doubt that the results of a warrantless
Parallel Citations
blood test taken without consent—actual or implied—and
showing a blood alcohol level that supported a conviction for 2014 WL 714924 (Tex.App.-Hous. (1 Dist.))
DWI did not contribute to Lyssy's conviction.

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

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 10
Kay v. State, Not Reported in S.W.3d (2014)
2014 WL 3697917

A jury found Kay guilty and sentenced him to 19 years'
confinement in prison. In two issues, Kay (1) challenges
KeyCite Yellow Flag - Negative Treatment the constitutionality of section 724.012 of the Texas
Declined to Follow by Leal v. State, Tex.App.-Hous. (14 Dist.),
Transportation Code, which requires a law enforcement
November 13, 2014
officer to take a blood sample from a suspect arrested for
2014 WL 3697917 driving while intoxicated when the suspect has refused to
Only the Westlaw citation is currently available. submit to the blood draw voluntarily and the officer has
reliable information from a credible source that the suspect
SEE TX R RAP RULE 47.2 FOR has two prior convictions for driving while intoxicated, and
DESIGNATION AND SIGNING OF OPINIONS. (2) argues that he was denied effective assistance of counsel.
We affirm.
MEMORANDUM OPINION
Do Not Publish. TEX. R. APP. P. 47.2(b).
Court of Appeals of Texas,
Houston (1st Dist.). Background

Milton Wayne KAY, Appellant On June 3, 2012, Officer P. McDonald 1 of the Orange
v. Police Department stopped Kay for not wearing his seatbelt
The STATE of Texas, Appellee. and for having an expired vehicle registration sticker. While
conducting the traffic stop, Officer McDonald smelled
No. 01–13–00595–CR. | July 24, 2014. alcohol and observed Kay slurring his speech. Officer
McDonald conducted field sobriety tests, and indicated that
On Appeal from the 260th District Court, Orange County,
Kay was intoxicated, and then placed Kay under arrest and
Texas, Trial Court Case No. D–120519–R.
transported him to the Orange County Jail.
Attorneys and Law Firms
1 Officer McDonald testified at the hearing on Kay's
Charles Sexton, for Milton Wayne Kay. motion to suppress and at trial.

Cory Andrew Kneeland, for The State of Texas. At the jail, Kay refused to submit to a blood draw voluntarily.
However, when Officer McDonald had earlier placed Kay in
Panel consists of Chief Justice RADACK and Justices custody, dispatch had provided Kay's criminal history report
MASSENGALE and HUDDLE. to Officer McDonald. The report showed that Kay had two
prior DWI convictions. Relying on section 724.012(b) of the
Transportation Code, Officer McDonald directed a nurse at
MEMORANDUM OPINION the jail to perform a warrantless blood draw on Kay. The
results indicated that Kay had a blood alcohol concentration
REBECA HUDDLE, Justice. of .24 grams of ethanol per 100 milliliters of blood, which
was three times the legal limit.
*1 Appellant Milton Wayne Kay was charged by indictment
for felony driving while intoxicated (“DWI”).SeeTEX.
Kay moved to suppress the blood alcohol test's results because
PENAL CODE ANN. § 49.04 (West Supp.2013). The
the blood was taken without his consent and without a
indictment further alleged an enhancement for two prior
warrant. At the hearing on Kay's motion to suppress, Officer
driving while intoxicated convictions, in 1989 and 2000. Kay
McDonald testified that he ordered the blood draw because
moved to quash the indictment, arguing that his prior DWI
he had a good faith belief that Kay had two previous DWI
convictions could not be used to enhance his DWI charge
convictions. The basis for his belief was Kay's criminal
to a felony because they were over ten years old, and the
history report, given to him by dispatch, which indicated Kay
trial court denied his motion. Kay also moved to suppress the
had two prior DWI convictions. The trial court denied the
warrantless blood draw and video recording, both of which
motion, explaining: “[B]ased upon the fact that the statute in
were taken on the night of his arrest, and the trial court denied
the state of Texas does allow for the non-warrant blood draw
his motion.
if ... the defendant has two prior convictions for DWI, which

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
Kay v. State, Not Reported in S.W.3d (2014)
2014 WL 3697917

has been admitted and stipulated here, the Court is going to and the person refuses the officer's request to submit to the
deny the Motion to Suppress as to the blood draw without taking of a specimen voluntarily” if, “at the time of the arrest,
a warrant.”It later denied Kay's motion for new trial, which the officer possesses or receives reliable information from a
raised the same issue, along with two issues regarding jury credible source that the person ... on two or more occasions,
instructions. has been previously convicted of ... an offense under Section
49.04, 49.05, 49.06, or 49.065, Penal Code.”TEX. TRANSP.
*2 After Kay filed his notice of appeal, his trial counsel CODE ANN. § 724.012(b)(3)(B). Driving while intoxicated
moved to withdraw. The appeal was abated and the trial court is an offense under section 49.04 of the Penal Code. SeeTEX.
held a hearing at which it granted the request to withdraw and PENAL CODE ANN. § 49.04. When a person is arrested
appointed new appellate counsel. During the same hearing, under the circumstances described in section 724.012(b), that
the trial court also heard testimony from Kay and his trial person's refusal to submit to the taking of the specimen does
counsel regarding Kay's contention that trial counsel rendered not suspend the officer's statutory duty to take it. Id. § 724.013
ineffective assistance by failing to convey a plea offer to Kay. (West 2011).

B. Analysis
Transportation Code Section 724.012 Relying on McNeely, Kay contends that section 724.012
violates the Fourth Amendment. But Kay did not challenge
Citing Missouri v. McNeely, 133 S.Ct. 1552 (2013), Kay
the constitutionality of section 724.012 in the trial court.
contends that section 724.012 of the Texas Transportation
Rather, Kay's argument in his motion to suppress and at
Code is unconstitutional because it “impermissibly narrows
the hearing on that motion was that (1) the blood draw was
[Kay's] Constitutionally guaranteed right to be free from
warrantless and taken over his refusal to voluntarily provide
unreasonable searches of his person and seizure of his bodily
a blood sample and (2) Kay's two prior convictions were
fluids without a warrant and without any showing of exigent
too remote in time to serve as the two prior convictions
circumstances.”
required by section 724.012(b). At no point did Kay attack
the constitutionality of section 724.012(b).
A. Applicable Law
The taking of a blood specimen is a search and seizure *3 At the hearing on Kay's motion to suppress, Kay's
under the Fourth Amendment. Schmerber v. California, 384 counsel focused on the fact that Kay “did not agree for his
U.S. 757, 767, 86 S.Ct. 1826, 1834 (1966). A warrantless blood to be taken,” and that the State had the burden to show
search or seizure is per se unreasonable, unless it falls under there were circumstances present that allowed the State to
a recognized exception to the warrant requirement. Katz v. take a warrantless blood draw. 2 Counsel argued that
United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514 (1967);
Walter v. State, 28 S.W.3d 538, 541 (Tex.Crim.App.2000). 2 The State agreed it had the burden and would lay the
One such exception is a search conducted pursuant to foundation at trial to prove that Kay had two prior
consent. See Schneckloth v. Bustamonte, 412 U.S. 218, convictions which allowed for the warrantless blood
219, 93 S.Ct. 2041, 2043–44 (1973). Likewise, implied draw.
consent law “implies a suspect's consent to a search in
certain instances. This is important when there is no there may be exceptions where you don't have to get a
search warrant, since it is another method of conducting a warrant under [McNeely ]; but the State does have the
constitutionally valid search.”Beeman v. State, 86 S.W.3d burden of proof to carry that issue ... [to show] what
613, 615 (Tex.Crim.App.2002). circumstances they don't have to get a warrant, and we have
agreed on the record no warrant was issued in this case ...
Section 724.012(b)(3)(B) of the Texas Transportation Code Kay did not agree for his blood to be taken....
provides implied consent to draw blood without a warrant in Counsel also argued that Kay's two prior DWI convictions
limited circumstance. It states: “[a] peace officer shall require could not satisfy the statute because they were each more
the taking of a specimen of the person's breath or blood ... than ten years old. Counsel did not argue that section
if the officer arrests the person for an offense under Chapter 724.012, the implied-consent statute, is unconstitutional
49, Penal Code, involving the operation of a motor vehicle ...
under McNeely or otherwise. 3

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2
Kay v. State, Not Reported in S.W.3d (2014)
2014 WL 3697917

3 For its part, he State argued at the hearing that McNeely not be used to support a different legal theory on appeal,”
“specifically seems to endorse” the constitutionality of even when asserting a constitutional challenge). Accordingly,
the implied-consent statute. we hold that Kay's challenge to the constitutionality of
section 724.012(b) was not preserved for our review.
Kay's written motion to suppress likewise did not challenge
SeeTEX.R.APP. P. 33.1; see also Lyssy v. State, 429 S.W.3d
the constitutionality of blood draws taken under the authority
37, 41 (Tex.App.-Houston [1st Dist.] 2014, no pet.)(holding
of section 724.012(b). Although Kay complained in his
that appellant waived his constitutional challenge to section
motion to suppress that the warrantless taking of his blood
724.012(b) where “[t]he context of the motion to suppress,
violated the United States and Texas Constitutions, he did so
as it developed at the hearing, demonstrates that [appellant's]
only generally:
challenge was based solely on a failure to observe the
[E]vidence in this case has been statute's terms, not an attack on the constitutionality of what
illegally obtained ...in violation of the it authorizes.”).
United States Constitution, the Texas
Constitution, and Texas Statutory *4 We overrule Kay's first issue.
Laws ... [T]he blood specimen was
extracted from [Kay] without his
permission and without a search Ineffective Assistance of Counsel
warrant.Generally, tak[ing] of a blood
sample is a search and seizure within In his second issue, Kay contends that his trial counsel
the meaning of the Fourth Amendment rendered ineffective assistance by failing to inform Kay
to the United States Constitution ... of a plea offer. Kay contends this warrants reversal and
Article I, section 9 of the Texas reinstatement of the State's plea offer.
Constitution requires that a search
warrant be issued ... In addition,
Article 38.23 of the Texas Code A. Standard of Review and Applicable Law
of Criminal Procedure forbids any Both the federal and state constitutions guarantee an accused
evidence obtained in violation of the right to have the assistance of counsel. SeeU.S. CONST.
the law to be admitted against an amend. VI; TEX. CONST. art. I, § 10; TEX.CODE CRIM.
accused.... PROC. ANN. art. 1.051 (West Supp.2013). The right to
counsel includes the right to reasonably effective assistance
(Emphasis added). (Citations omitted). of counsel. See Strickland v. Washington, 466 U.S. 668, 686,
104 S.Ct. 2052, 2063 (1984); Ex parte Gonzales, 945 S.W.2d
Considered in context, we conclude that Kay's complaint 830, 835 (Tex.Crim.App.1997). Both state and federal claims
to the trial court was not sufficient to inform the trial of ineffective assistance of counsel are evaluated under the
court that Kay challenged the constitutionality of section two prong analysis of Strickland. Thompson v. State, 9
724.012(b).See Resendez v. State, 306 S.W.3d 308, 314 S.W.3d 808, 812 (Tex.Crim.App.1999).
(Tex.Crim.App.2009) (holding that “[o]nly when there are
clear contextual clues indicating that the party was, in The first prong requires the appellant to demonstrate that
fact, making a particular argument will that argument be counsel's performance was deficient, meaning that counsel
preserved”). The record demonstrates that Kay's motion to made errors so serious that he was not functioning as the
suppress, as it was developed at the hearing, was based solely “counsel” guaranteed by the Sixth Amendment.Strickland,
on the fact that the blood was drawn over his objection and 466 U.S. at 687, 104 S.Ct. at 2064. The second prong requires
without a warrant. Kay's counsel seemingly ignored section the appellant to show that counsel's deficient performance
724.012 at the hearing; thus, even considering context, prejudiced the defense. Strickland, 466 U.S. at 687, 104
nothing in the record suggests that Kay alerted the trial S.Ct. at 2064. To establish prejudice, the appellant must
court that he sought to challenge the constitutionality of the prove there is a reasonable probability that but for counsel's
implied-consent statute authorizing Kay's blood draw. See deficient performance, the result of the proceeding would
Broxton v. State, 909 S.W.2d 912, 918 (Tex.Crim.App.1995) have been different. Jackson v. State, 973 S.W.2d 954,
(holding that an “objection stating one legal theory may 956 (Tex.Crim.App.1998). Unless an appellant can prove

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3
Kay v. State, Not Reported in S.W.3d (2014)
2014 WL 3697917

both prongs, an appellate court must not find counsel's since been informed that there may have been a plea offer at
representation to be ineffective. Strickland, 466 U.S. at 687, some point. 4
104 S.Ct. at 2064.
4 There is a supplemental reporter's record of a “hearing to
There is a strong presumption that counsel's conduct fell
present additional evidence,” which the trial court held
within the wide range of reasonable professional assistance.
after Kay was appointed new appellate counsel.
Thompson, 9 S.W.3d at 813; Jackson v. State, 877 S.W.2d
768, 771 (Tex.Crim .App.1994). On direct appeal, a The trial court did not have authority to hold an evidentiary
reviewing court will rarely be able to fairly evaluate the merits hearing regarding Kay's ineffective assistance claim because
of an ineffective-assistance claim because the record on direct our order of abatement did not provide for such a hearing.
appeal is usually undeveloped and inadequately reflective SeeTEX.R.APP. P. 25.2(g) (“Once the record has been filed
of the reasons for defense counsel's actions at trial. Mata in the appellate court, all further proceedings in the trial
v. State, 226 S.W.3d 425, 430 (Tex.Crim.App.2007). The court—except as provided otherwise by law or by these
lack of a clear record usually will prevent the appellant from rules—will be suspended until the trial court receives the
meeting the first prong of Strickland, as the reasonableness appellate-court mandate.”). Even when an appeal is abated,
of counsel's choices and actions during trial can be proven “[a] trial court is not authorized to conduct an evidentiary
deficient only through facts that do not normally appear hearing to develop a record of new testimony and other
in the appellate record. Id. In order for an appellate court evidence that was not presented at trial, or developed on
to find on direct appeal that counsel was ineffective, motion for new trial.”Lewis v. State, 711 S.W .2d 41, 43–
counsel's deficiency must be affirmatively demonstrated 44 (Tex.Crim.App.1986) (emphasis in original) (holding
in the trial record. Lopez v. State, 343 S.W.3d 137, 142 that trial court “exceeded her authority under the mandate
(Tex.Crim.App.2011). When the record is silent as to of abatement” by holding evidentiary hearing to develop
counsel's reasons for his conduct, finding counsel ineffective evidence on ineffective assistance claim because appellant
would call for speculation by the appellate court. Stults v. failed to present such evidence at trial or in motion for new
State, 23 S.W.3d 198, 208 (Tex.App.-Houston [14th Dist.] trial). Accordingly, we do not consider the testimony from
2000, pet. ref'd). An appellate court will not speculate about the evidentiary hearing that was held while the case was
the reasons underlying defense counsel's decisions to find abated. Disregarding the evidence adduced at that hearing,
counsel ineffective. Id.;Jackson, 877 S.W.2d at 771. the record does not affirmatively show that any plea offer
actually was extended by the State or that Kay's trial counsel
failed to convey an offer to him. See Lopez, 343 S.W.3d at
B. Analysis 142 (stating that the record must affirmatively demonstrate
*5 Kay filed a motion for new trial, but it did not raise the alleged ineffectiveness to find ineffective counsel). Thus,
an ineffective assistance claim. On appeal, he contends that we cannot conclude that Kay has established that his trial
the State offered a plea bargain of seven years in prison counsel's representation fell below an objective standard of
and that his trial counsel failed to communicate that offer reasonableness. See Jenkins v. State, No. 01–03–00185–CR,
to Kay. Kay further contends that his trial counsel failed 2004 WL 1233996, at *7 (Tex.App.-Houston [1st Dist.] June
to intelligently assess and communicate the offer because 3, 2004, no pet.)(mem. op., not designated for publication)
counsel misunderstood the law. Specifically, Kay argues that (holding appellant failed to show his counsel's performance
his trial counsel erroneously believed that the State was was deficient because there was no record that appellant's
prohibited from using Kay's two prior DWI convictions as counsel failed to inform him of plea offer or that State ever
predicates for a felony DWI charge because they were more proposed plea bargain). Accordingly, we hold that Kay failed
than ten years old. to meet the first prong of Strickland.

We abated this appeal and ordered the trial court to hold a *6 We overrule Kay's second issue.
hearing on Kay's trial counsel's motion to withdraw. On the
same day that the trial court held a hearing on and granted the
motion to withdraw, it heard testimony from Kay to the effect
Conclusion
that no plea offer was communicated to him but that he had
We affirm the trial court's judgment.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4
Kay v. State, Not Reported in S.W.3d (2014)
2014 WL 3697917

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

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 5