Leal, Jonathan Albert

PD-0836-15

PD-0836-15 COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 7/6/2015 2:02:07 PM

Accepted 7/7/2015 3:39:48 PM

ABEL ACOSTA

No. 14-13-00208-CR CLERK

TO THE COURT OF CRIMINAL APPEALS

OF THE STATE OF TEXAS

JONATHAN ALBERT LEAL, Appellant

v.

THE STATE OF TEXAS, Appellee

Appeal from Galveston County

* * * * *

STATE’S PETITION FOR DISCRETIONARY REVIEW

* * * * *

July 7, 2015

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,

Jonathan Albert Leal.

* The trial Judge was Hon. John Ellisor.

* Counsel for the State at trial were Daniel Eugene Lazarine, Jennifer Stabe, and

Jared Robinson, Galveston County Justice Center, 600 59th Street, Suite 1001,

Galveston, Texas 77511.

* Counsel for the State before the Court of Appeals was Allison Lindblade, 600

59th Street, Suite 1001, P.O. Box 17254, Galveston, Texas 77551.

* 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 and before the Court of Appeals was Hon. Mark

W. Stevens, P.O. Box 8118, Galveston, Texas 77553.

TABLE OF CONTENTS

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii-iv

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

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-2

STATEMENT OF PROCEDURAL HISTORY. . . . . . . . . . . . . . . . . . . . . . . . . . 2-3

GROUNDS FOR REVIEW.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

1. Is a challenge to a warrantless blood draw under T EX. T RANS. C ODE §

724.012(b)(3)(B) preserved for review when Appellant did not explain the

impact of Missouri v. McNeely in his suppression motion or at trial but did

so later on rehearing?

2. 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?

3. 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)(1)(A) and

binding caselaw?

ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3-11

PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

APPENDIX A (Opinion of the Court of Appeals After Remand)

i

APPENDIX B (Opinion of the Court of Appeals on Original Submission)

APPENDIX C (Amended Motion to Suppress)

ii

INDEX OF AUTHORITIES

Cases

Aliff v. State, 627 S.W.2d 166 (Tex, Crim. App. 1982). . . . . . . . . . . . . . . . . . . . 9 n.7

Beeman v. State, 86 S.W.3d 613 (Tex. Crim. App. 2002). . . . . . . . . . . . . . . . . . 7 n.4

Bishop v. State, 85 S.W.3d 819 (Tex. Crim. App. 2002).. . . . . . . . . . . . . . . . . . 8 n.6

Buchanan v. State, 207 S.W.3d 772 (Tex. Crim. App. 2006). . . . . . . . . . . . . . 10 n.9

Cole v. State, PD-0077-15 (granted Apr. 22, 2015).. . . . . . . . . . . . . . . . . 11, 11 n.12

Douds v. State, PD-0857-14 (granted Sept. 17, 2014; argued and submitted Mar. 18,

2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Eisenhauer v. State, 754 S.W.2d 159 (Tex. Crim. App. 1988). . . . . . . . . . . . . . 8 n.6

Heidelberg v. State, 144 S.W.3d 535 (Tex. Crim. App. 2004). . . . . . . . . . . . . 10 n.9

Holidy v. State, No. PD-0622-14 (granted Aug. 20, 2014; argued and submitted Jan.

14, 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

State v. Johnston, 336 S.W.3d 649 (Tex. Crim. App. 2011). . . . . . . . . . . . . . . . 7 n.4

Karenev v. State, 281 S.W.3d 428 (Tex. Crim. App. 2009). . . . . . . . . . . . . . . . 9 n.8

Lankston v. State, 827 S.W.2d 907 (Tex. Crim. App. 1992). . . . . . . . . . . . . . . . . . . 7

Leal v. State, 456 S.W. 567 (Tex. Crim. App. 2015).. . . . . . . . . . . . . . . . 2, 6 n.3, 10

Leal v. State, 452 S.W.3d 14 (Tex. App.—Houston [14th] 2014).. . . . . 2, 5 n.5, 5-6

Leal v. State, __ S.W.3d __, No. 14-13-00208-CR, 2015 Tex. App. LEXIS 6460 (Tex.

App.—Houston [14th] 2015) (op. on remand). . . . . . . . . . . . . . . . . . . . . . . . 2-3, 10

Lovill v. State, 319 S.W.3d 687 (Tex. Crim. App. 2009).. . . . . . . . . . . . . . . . 8 n.5, 9

iii

Missouri v. McNeely, 133 S. Ct. 1552 (2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 7

Pena v. State, 285 S.W.3d 459 (Tex. Crim. App. 2009). . . . . . . . . . . . . . . . . . . 8 n.5

Pesina v. State, 676 S.W.2d 122 (Tex. Crim. App. 1984). . . . . . . . . . . . . . . . . . 9 n.7

Reeder v. State, No. PD-0601-14 (granted Aug. 20, 2014; argued and submitted Jan.

15, 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

State v. Villarreal, No. PD-0306-14, 2014 Tex. Crim. App. LEXIS 1898 (Tex. Crim.

App. Nov. 26, 2014, reh’g granted). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 10 n.11

Weems v. State, No. PD-0635-14 (granted Aug. 20, 2014; argued and submitted Nov.

17, 2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 n.12

Williams v. State, 773 S.W.2d 525 (Tex. Crim. App. 1988). . . . . . . . . . . . . . . . 9 n.8

Statutes

T EX. C ODE C RIM. P ROC. art. 38.23. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

T EX. T RANS. C ODE § 724.012(b)(3)(B). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Rule

T EX. R. A PP. P. 33.1(a)(1)(A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Act

Acts 2009, 81st Leg., ch. 1348, § 18, eff. Sept. 1, 2009. . . . . . . . . . . . . . . . . . . . . . 7

iv

No. 14-13-00208-CR

TO THE COURT OF CRIMINAL APPEALS

OF THE STATE OF TEXAS

JONATHAN ALBERT LEAL, Appellant

v.

THE STATE OF TEXAS, Appellee

Appeal from Galveston 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

Appellant’s blood was drawn pursuant to the repeat offender mandatory draw

provision. See T EX. T RANS. C ODE § 724.012(b)(3)(B). Before trial, he filed an

amended motion to suppress, arguing that the repeat-offender provision is

1

unconstitutional and that the then-pending case of Missouri v. McNeely, 133 S. Ct.

1552 (2013), may impact the legality of the warrantless draw. Appendix C; 1 CR 79.

After a hearing, during which only the validity of the stop was litigated, the trial court

denied Appellant’s motion. See, generally, 3 RR 59-119. Appellant objected at trial

to the admission of the blood test results citing his prior objections. 4 RR 92. A jury

subsequently found Appellant guilty of felony DWI, and the trial court sentenced him

to eight years’ imprisonment but suspended the sentence and granted community

supervision. The Supreme Court then rendered its decision in McNeely, and Appellant

moved for a new trial, again challenging the statutorily compelled blood draw. 7 RR

4-26; 1 CR 145. The trial court denied the motion after a hearing. 7 RR 4-26; 1 CR

47.

STATEMENT OF PROCEDURAL HISTORY

The majority of the court of appeals reversed the trial court’s denial of

Appellant’s motion for new trial. Leal v. State, 452 S.W.3d 14 (Tex. App.—Houston

[14th] 2014). This Court refused the State’s PDR but granted review on its own

motion and remanded for the court of appeals to decide whether Appellant properly

preserved review. Leal v. State, 456 S.W. 567 (Tex. Crim. App. 2015). The court of

appeals held that Appellant’s claim was preserved and reversed again based on its

previous decision. Leal v. State, __ S.W.3d __, No. 14-13-00208-CR, 2015 Tex. App.

2

LEXIS 6460 (Tex. App.—Houston [14th] 2015) (op. on remand).

GROUNDS FOR REVIEW

1. Is a challenge to a warrantless blood draw under T EX. T RANS. C ODE §

724.012(b)(3)(B) preserved for review when Appellant did not explain the

impact of Missouri v. McNeely in his suppression motion or at trial but did

so later on rehearing?

2. 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?

3. 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)(1)(A) and

binding caselaw?

ARGUMENT

1. Appellant failed to properly preserve his challenge to the mandatary blood

draw.

A. Suppression Motion

Before trial, Appellant filed an amended motion to suppress challenging the

mandatory blood draw.1 Appendix C; 1 CR 79. He argued, “Sec. 724.011 is

unconstitutional on its face and as applied, as a violation of U.S. Constitution, Amend.

VIII, which prevents unreasonable searches and seizures.” Appendix C; 1 CR 79.

Immediately following, he asserted:

1

It also reasserted the grounds presented in his first motion to suppress, which

challenged the validity of the stop. 1 CR 27-28.

3

The matter is presently under review before the U.S. Supreme Court.

Missouri v. McNeely, USSC Docket No. 11-1425, was argued on January

9, 2013. Briefly, the Supreme Court of Missouri apparently ruled that a

warrantless blood draw violated the Eighth Amendment, and the United

States Supreme Court granted cert. The publicly available recording of

the arguments before the U.S. Supreme Court . . . suggest that a

significant number of justices were openly concerned about the prospect

of a government official approaching an unwilling citizen with a needle.

Such information is not of course binding or in many instances predictive

of the ultimate ruling, but they do suggest that the issue is a close one and

should be carefully reviewed before this court commits resources to a trial

which may be fatally flawed from the beginning.

Appendix C; 1 CR 79. The trial court held a hearing, during which only the validity

of the stop was actively litigated. See, generally, 3 RR 59-119. The trial court denied

Appellant’s motion. 3 RR 119; 4 RR 161.

Appellant also objected at trial, citing “all prior objections,” when the State

proffered the test results. 4 RR 92. The trial court ruled that the evidence was

admissible. 4 RR 92.

Finally, before addressing the jury charge, the judge noted his earlier rulings:

“I think I’ve made this ruling on the record. But just in case I didn’t, we had a Motion

to Suppress Evidence in this case. And there was an amended Motion to Suppress.

And after hearing and consideration of the facts and case law, that motion is denied.

Thank you.” 4 RR 161.

B. Supplemental New Trial Motion

Relying on the then-new decision in McNeely, Appellant filed a supplemental

4

motion for new trial, claiming for the first time that that there was no consideration

by law enforcement as to whether a warrant could have been obtained or the existence

of exigent circumstances. 1 CR 145. He also maintained that the mandatory draw

provision “unconstitutionally substitutes two prior convictions for any constitutional

basis for intrusion into the body.”2 1 CR 145. Appellant’s claims were addressed at

a hearing, 7 RR 4-26, and the trial court later denied Appellant’s motion. 1 CR 147.

C. Court of Appeals

A majority of the court of appeals held that Appellant’s Fourth Amendment

challenge to the blood draw was both timely and specific. Leal, 2015 Tex. App.

LEXIS 6460, at *5-6. It concluded that the trial court implicitly overruled Appellant’s

amended motion to suppress when it admitted the blood test results over Appellant’s

trial objection. Id. at *4. The majority also held that the trial court’s denial of

Appellant’s supplemental motion for rehearing, filed five days after McNeely was

decided, also preserved his claim. Id. at *5.

Justice Frost concurred. Id. at *7 (Frost, J., concurring). Regarding timeliness,

he concluded that the Appellant’s amended suppression motion, denied in toto,

preserved the claim. Id. at *8. In Justice Frost’s view, it was the only suppression

2

As noted by the court of appeals, Appellant’s amended motion was untimely;

however, the trial court granted Appellant leave to file, and the State did not object.

Leal, 2015 Tex. App. LEXIS 6460, at *5; 7 RR 8.

5

motion before the court because it superceded Appellant’s first motion; therefore,

when remanding this case, this Court erred to state that the suppression hearing

pertained to the first motion.3 Id. at *9-10, *10-11 n.9. Further, Justice Frost

maintained that Appellant’s failure to address the issue at the hearing is of no

consequence because not all grounds need to be discussed at a hearing to preserve

error. Id. *9-10. And there was no express or implied waiver. Id. *12-13. He also

observed that Appellant’s challenge was specific. Id. at *8. The amended motion

asserted that the blood was drawn pursuant to a statute that violates the Fourth

Amendment; it is apparent that Appellant’s mention of the Eighth Amendment was

a mistake. Id. at *8-9.

D. Analysis

First, Appellant’s stark mention of the constitutionality of the statute and

McNeely in his amended suppression motion were not sufficient to put the trial court

on notice of the precise claim he later raised on appeal. See T EX. R. A PP. P.

33.1(a)(1)(A) (requiring a complaint to be timely and the reason to be made with

3

This Court stated:

“Appellant also filed an amended motion to suppress evidence, challenging the

warrantless blood draw on Fourth Amendment grounds. A hearing was held on the

motion to suppress complaining of an illegal stop, and the trial court denied the

motion. That hearing did not pertain to appellant’s amended motion to suppress.”

Leal, 456 S.W.3d at 568.

6

“sufficient specificity” to make the trial court aware of it). Though Appellant claimed

that the statute is unconstitutional, he never made any connection between McNeely

and the validity of the statute. McNeely’s sole issue was exigency. By design, it had

nothing to with Missouri’s implied consent statute (let alone Texas’). McNeely, 133

S. Ct. at 1567-68. It would have been difficult for even a seasoned trial judge to

conclude, on the basis of Appellant’s motion alone, that he was challenging the

validity of the statute because, in the absence of exigent circumstances or a warrant,

a non-consensual blood draw violates the Fourth Amendment.

Beyond connectivity, the novelty of the controversy increased the need for

Appellant to detail, in plain language, why suppression was warranted. See Lankston

v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992). The repeat offender provision

has been in effect since September 1, 2009, Acts 2009, 81st Leg., ch. 1348, § 18, eff.

Sept. 1, 2009. Until McNeely no one mounted a serious challenge to it under the

theory it violates the Fourth Amendment in the absence of exigency or a warrant.4

The novelty of the issue would have made it nearly impossible for the trial court to

frame the issue, as currently understood, for Appellant. Thus, it was crucial for

4

This Court recognized that the statute implicitly dispenses with the warrant

requirement. See State v. Johnston, 336 S.W.3d 649, 660 (Tex. Crim. App. 2011)

(“Chapter 724 of the Texas Transportation Code, which contains Texas’ implied

consent statutes, governs the State’s ability to obtain a breath or blood sample from

a DWI suspect when there is no warrant.”) (citing Beeman v. State, 86 S.W.3d 613,

616 (Tex. Crim. App. 2002)).

7

Appellant to have explained his then-unheard of McNeely claim, misnomer

notwithstanding.5 Appellant’s broad and seemingly unrelated statements should not

be regarded as preserving the claim raised on appeal.6

Appellant’s supplemental motion for new trial did not preserve review either.

This Court has held that an unobjected-to complaint that was apparent during trial is

not preserved for appeal when it is raised for the first time in a motion for new trial.

5

See Lovill v. State, 319 S.W.3d 687, 692 (Tex. Crim. App. 2009) (when a legal

claim is rarely urged, like a selective prosecution claim, the objecting party should

invoke the proper federal and state constitutional provisions or use key legal phrases);

Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009) (novel argument of

greater rights under Texas’ due course of law provision was not sufficiently

distinguished from the federal Due Process Clause in the trial court).

6

Even if Appellant’s amended motion had been sufficiently specific, contrary to

Justice Frost’s opinion, the record could be construed as Appellant having abandoned

or waived the issue. Because he never argued the issue at the suppression hearing,

the judge never explicitly ruled on it. Therefore, the trial judge’s statements that he

overruled Appellant’s motions to suppress could be limited to the validity of the stop

issue the trial judge did explicitly resolve. 3 RR 119; 4 RR 161. Depending on how

the trial court’s statements are construed, there is authority from this Court that may

support a contrary determination, however. In Bishop v. State, 85 S.W.3d 819, 821-22

(Tex. Crim. App. 2002), this Court stated the trial courts have the authority to dispose

of a motion based on the motion alone. See also Eisenhauer v. State, 754 S.W.2d 159,

161 (Tex. Crim. App. 1988) (stating that a motion to suppress that raised both federal

and state search and seizure provisions was sufficient to preserve state constitutional

claim when oral argument covered only the federal constitutional claim).

There is also a question as to whether Appellant’s objection to the admission to the

blood test results during trial even included his non-specific amended motion to

suppress ground. As the State noted in its brief below, State’s Brief on Remand at 7-

8, his objections immediately preceding the final “all prior objections” statement did

not pertain to the validity of the statutory draw itself. 4 RR 73-92.

8

Lovill, 319 S.W.3d at 693. Here, there is no reason why Appellant could not have

formulated his Fourth Amendment challenge to the statutory blood draw during trial.

As explained above, McNeely did not purport to address any implied consent

mandatory draw statute; therefore, on its face, it had no applicability to the statutory

draw of Appellant’s blood. Further, the Supreme Court adopted McNeely’s argument,

of which Appellant was aware before trial.

It could be argued that the basis for Appellant’s claim did not become available

until McNeely was decided because, until then, Texas law appeared to endorse the per

se exigency rule.7 So until per se exigency was not longer available, a defendant

moving to suppress BAC results had no reason to challenge the legality of a draw

under the statute. Before McNeely, any challenge would have been deemed harmless

with exigency as the sole legal basis. However, because McNeely’s issue was clear-

cut, Appellant should have anticipated the need to make the comprehensive argument

he ultimately raised in his new trial motion.8 But even assuming it was not

7

Aliff v. State, 627 S.W.2d 166, 169-70 (Tex, Crim. App. 1982); see also Pesina

v. State, 676 S.W.2d 122, 123-27 (Tex. Crim. App. 1984) (same).

8

See Williams v. State, 773 S.W.2d 525, 534-35 (Tex. Crim. App. 1988), aff’d on

reh’g (Batson claim could not be raised for the first time on appeal even though

Batson was decided after Appellant’s trial; the legal basis was not so novel that it

could not have been reasonably anticipated); see also Karenev v. State, 281 S.W.3d

428, 434 (Tex. Crim. App. 2009) (facial challenge to a presumptively constitutional

statute cannot be raised for the first time on appeal).

9

foreseeable, Appellant should have challenged each legal basis on its own terms.9

The court of appeals erred to hold that Appellant’s blood draw challenge was

preserved.

2. Even assuming error was preserved, the draw was reasonable under the

Fourth Amendment.

The majority of the court of appeals reversed the trial court’s denial of

Appellant’s motion for new trial.10 Leal, 452 S.W.3d at 23. It stated, “We are

persuaded by the reasoning of our sister courts of appeal and join them in concluding

that the repeat-offender provision of the implied-consent statute . . . is not one of the

recognized exceptions to the warrant requirement.” Id. The court then concluded

that the draw was not justified by exigent circumstances or valid consent. Id. at 23-32.

Justice Frost dissented and, in doing so, adopted a similar rationale as Presiding Judge

Keller in State v. Villarreal.11 Id. at 32-40 (Frost, J., dissenting).

The warrantless blood draw, conducted under Texas Transportation Code

9

See, e.g., Buchanan v. State, 207 S.W.3d 772, 776-79 (Tex. Crim. App. 2006)

(an objection under the Fourth Amendment does not preserve a challenge to an arrest

under Chapter 14 of the Code of Criminal Procedure); Heidelberg v. State, 144

S.W.3d 535, 539-43 (Tex. Crim. App. 2004) (an objection under the Fifth Amendment

does not preserve a Texas constitutional challenge).

10

The court of appeals incorporated its first opinion by reference on remand. Leal,

2015 Tex. App. LEXIS 6460, at *1.

11

No. PD-0306-14, 2014 Tex. Crim. App. LEXIS 1898 (Tex. Crim. App. Nov.

26, 2014, reh’g granted).

10

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

Villarreal, 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).12

3. Even if foregoing issues are resolved in Appellant’s favor, 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, if the other issues

are resolved in Appellant’s favor, this Court should remand to the court of appeals to

decide, in the first instance, whether suppression is warranted. Alternatively, for the

reasons asserted in Cole, this Court should hold that the remedy of suppression is not

warranted.

12

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.

11

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)

12

CERTIFICATE OF COMPLIANCE

The undersigned certifies that according to the WordPerfect word count tool this

document contains 2,372 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

13

CERTIFICATE OF SERVICE

The undersigned certifies that a copy of the State’s Petition for Discretionary

Review has been served on July 6, 2015, via certified electronic service provider to:

Hon. Allison Lindblade

600 59th Street, Suite 1001

P.O. Box 17254

Galveston, Texas 77551

allison.lindblade@co.galveston.tx.us

Hon. Mark W. Stevens

P.O. Box 8118

Galveston, Texas 77553

markwandstec@sbcglobal.net

/s/ STACEY M. GOLDSTEIN

Assistant State Prosecuting Attorney

14

APPENDIX A

6 of 100 DOCUMENTS

JONATHAN ALBERT LEAL, Appellant v. THE STATE OF TEXAS, Appellee

NO. 14-13-00208-CR

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

2014 Tex. App. LEXIS 12286

November 13, 2014, Dissenting Opinion Filed

NOTICE: PUBLISH -- TEX. R. APP. P. 47.2(b). the officer in this case had sufficient evidence to justify

the warrantless temporary detention of appellant. W ith

PRIO R HISTORY: [*1] On Appeal from the 122nd regard to appellant's second issue, we hold that the

District Court, Galveston County, Texas. Trial Court intrusion [*2] into appellant's veins was an unreasonable

Cause No. 12CR0947. warrantless search in violation of the Fourth Amendment.

W e therefore reverse the trial court's judgment and

remand to the trial court for a new trial consistent with

CO UNSEL: For Appellant: M ark W. Stevens, this opinion.

GALVESTON, TX.

I. F A C TS A ND P RO CED U R A L B A CKGROUN D

For Appellee: Allison Lindblade, GALVESTON, TX.

Early in the morning of April 2, 2012, Jacob Hodges 1

was on patrol driving east in the right lane of W est M ain

JUDGES: Panel consists of Chief Justice Frost and

Street in League City, Galveston County, Texas. Hodges

Justices Donovan and Brown. (Frost, C.J., dissenting).

observed appellant approaching W est Main Street from

an apartment complex parking lot. Appellant was driving

OPINION BY: Marc W . Brown

a white sport utility vehicle (SUV) approaching from the

south at a high rate of speed. Immediately prior to turning

OPINION

onto W est Main Street, appellant applied his brakes. This

caused the SUV to visibly rock forward, compressing the

M AJORITY OPINION

front suspension. The front end of appellant's SUV

Appellant Jonathan Albert Leal was stopped for entered W est Main Street. Hodges had to slam on his

failing to yield the right of way. Appellant was arrested brakes in order to avoid a collision.

on suspicion of driving while intoxicated (DW I) and,

over his explicit refusal, compelled by the arresting 1 At the time of the events at issue, Hodges was

officer to submit to a warrantless intrusion into his veins. a police officer with the League City Police

Appellant was convicted of felony DW I. See Tex. Penal Department. At the time of trial, Hodges was a

Code Ann. §§ 49.04, 49.09(b) (W est 2011 & Supp. special agent with the Drug Enforcement

2014). Administration.

Appellant presents this court with two issues for As a result of this near collision, Hodges initiated a

review. The first issue is whether the traffic stop was traffic stop. During the course of the traffic stop, Hodges

supported by reasonable suspicion. The second issue is saw a [*3] bottle of rum behind the passenger's seat of

whether, under Missouri v. McNeely, U.S. , 133 S. appellant's SUV. Hodges noticed that appellant's eyes

Ct. 1552, 185 L. Ed. 2d 696 (2013), and based solely on were red and watery. He also noticed the faint odor of

the arresting officer's application of the repeat-offender alcohol on appellant's breath. In response to Hodges's

provision of the implied-consent statute, see Tex. Transp. questioning, appellant admitted to drinking three mixed

Code Ann. § 724.012(b)(3)(B) (W est 2011), the State was drinks. Hodges administered a battery of standardized

justified in obtaining a blood sample from appellant's field sobriety tests. Based on appellant's performance on

veins without a warrant. the sobriety tests and Hodges's personal observations,

Hodges concluded that appellant was under the influence

W ith regard to appellant's first issue, we hold that

of alcohol. Hodges arrested appellant and transported him

to the League City jail. II. S TA N DA R D OF R EVIEW

At the jail, Hodges gave appellant the requisite A trial court's denial of a motion to suppress and a

statutory warning regarding the implied-consent statute trial court's denial of a motion for new trial are both

and the consequences of refusing to submit to the taking reviewed under the abuse of discretion standard.

of a blood or breath specimen. See Tex. Transp. Code Okonkwo v. State, 398 S.W.3d 689, 694 (Tex. Crim. App.

Ann. § 724.015 (W est Supp. 2014). The warning was 2013); Ex parte Moore, 395 S.W.3d 152, 158 (Tex. Crim.

given orally and in writing. After receiving the statutory App. 2013). A trial court abuses its discretion if no

warning, appellant refused to submit to the taking of both reasonable view of the record could support its ruling.

a blood and a breath specimen.2 Hodges then reviewed Okonkwo, 398 S.W.3d at 694. W e view the evidence in

appellant's criminal history and discovered that appellant the light most favorable to the trial court's ruling. Id.;

had two prior DW I convictions. Per the implied-consent Moore, 395 S.W.3d at 158. At a hearing on the motion,

statute, Hodges was required to obtain a specimen of the trial court is the sole judge of witness credibility and

appellant's blood. See Tex. Transp. Code Ann. § the weight given to witness testimony. Okonkwo, 398

724.012(b)(3)(B). Hodges transported appellant to Clear S.W.3d at 694; Moore, 395 S.W.3d at 158. W e must

[*4] Lake Regional Hospital where a nurse drew afford [*6] almost total deference to the trial court's

appellant's blood. According to Hodges's offense report, findings of historical facts as well as mixed questions of

appellant was "very uncooperative" at the hospital; three law and fact that turn on an evaluation of credibility and

people had to hold appellant down while the nurse took demeanor. Okonkwo, 398 S.W.3d at 694; Abney v. State,

his blood. Hodges did not obtain a search warrant to 394 S.W.3d 542, 547 (Tex. Crim. App. 2013). W hen the

draw appellant's blood. trial court does not make explicit findings of fact, we

assume the trial court made implicit findings of fact

2 W hile the written refusal in the record denotes supported by the record. Okonkwo, 398 S.W.3d at 694;

only a refusal to submit a breath specimen, the Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App.

testimony at trial in response to the State's 2005).

questioning clearly demonstrates that appellant

W e review de novo (1) questions of law based on

refused to submit samples of both breath and

undisputed facts and (2) mixed questions of law and fact

blood.

that do not turn on an evaluation of credibility and

Appellant was indicted for operating a motor vehicle demeanor. Jones v. State, 437 S.W.3d 536, 538 (Tex.

in a public place while intoxicated. See Tex. Penal Code App.--Texarkana 2014, pet. filed); see Oles v. State, 993

Ann. § 49.04(a). The indictment alleged two prior DW I S.W.2d 103, 106 (Tex. Crim. App. 1999); Guzman v.

convictions. Appellant stipulated to the validity of the State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).

two prior convictions. Appellant filed a motion to Additionally, we review de novo the trial court's

suppress challenging the legality of the traffic stop. After application of the law of search and seizure to the trial

conducting a hearing, the trial court denied the motion to court's express or implied determination of historical

suppress. facts. Shepherd v. State, 273 S.W.3d 681, 684 (Tex. Crim.

App. 2008). Finally, we review de novo indisputable

The case was tried before a jury. Appellant's blood

evidence contained in a video recording. State v. Duran,

alcohol content, which was nearly three times the legal

396 S.W.3d 563, 570-71 (Tex. Crim. App. 2013); see

limit, was admitted into evidence. The jury found

Carmouche v. State, 10 S.W.3d 323, 332 (Tex. Crim. App.

appellant guilty of the charged offense, and the trial court

2000).

assessed punishment at eight years' confinement. The

sentence was suspended and appellant [*5] was placed

III. D ISC U SSIO N

on community supervision.

W e begin our discussion with a general overview of

The trial court's judgment was signed on February

the Fourth Amendment. W e then analyze whether Hodges

15, 2013. Appellant filed his notice of appeal on the

had reasonable suspicion that appellant committed the

same day. On March 8, 2013, appellant filed a motion for

traffic violation of failing to yield the right of way.

new trial, asserting various grounds not pertinent to this

Finally, we analyze whether the warrantless intrusion into

appeal. On April 22, 2013, five days after the Supreme

appellant's veins was justified under an exception to the

Court decided McNeely, appellant filed a supplemental

Fourth Amendment's warrant requirement.

motion for new trial in which he challenged the validity

of the warrantless blood draw under McNeely. The trial

A. The Fourth Amendment

court held a hearing on appellant's motion for new trial

and ultimately denied the motion. On appeal, appellant The Fourth Amendment provides: "The right of the

challenges (1) the legality of the traffic stop and (2) the people to be secure in their persons, houses, papers, [*7]

legality of the warrantless blood draw. and effects, against unreasonable searches and seizures,

shall not be violated, and no W arrants shall issue, but

upon probable cause, supported by Oath or affirmation, private road or driveway shall yield the right-of-way to a

and particularly describing the place to be searched, and vehicle approaching on the highway to be entered." Tex.

the persons or things to be seized." U.S. Const. amend. Transp. Code Ann. § 545.155 (W est 2011). The

IV. The ultimate touchstone of the Fourth Amendment is undisputed evidence showed the following: o Hodges was

reasonableness. Riley v. California, U.S. , , 134 S. driving eastbound in the right lane of W est Main Street.

Ct. 2473, 2482, 189 L. Ed. 2d 430 (2014).

Reasonableness generally requires the obtaining of a o Appellant was driving through a

judicial warrant. Id. A warrantless search is reasonable parking lot at a high rate of speed.

only if it falls within a specific exception to the Fourth

o A p p e l l a n t 's t r a j e c t o r y was

Amendment's warrant requirement. Id.

perpendicular to that of Hodges.

A defendant who alleges a search or seizure in

o Appellant was approaching W est

violation of the Fourth Amendment must produce some

Main Street from the south.

evidence that rebuts the presumption of proper police

conduct. Amador v. State, 275 S.W.3d 872, 878 (Tex. o Appellant's SUV stopped suddenly,

Crim. App. 2009). To satisfy this burden, the defendant causing its weight to visibly shift forward

must establish that the search or seizure occurred without and its front suspension to compress.

a warrant. Id. Once the defendant makes this showing,

o The front end of appellant's SUV

the State must prove that the search or seizure was

entered Hodges's lane.

conducted pursuant to a warrant or was reasonable. Id.

Here, the State seized and searched appellant without a o Hodges had to slam on his brakes in

warrant. Therefore, we must determine whether the order to avoid colliding with the SUV.

warrantless temporary detention of appellant was

reasonable and, if so, whether the warrantless intrusion

into appellant's veins was reasonable.

Based on the totality of these circumstances, we

B. The traffic stop was reasonable. conclude that Hodges had reasonable suspicion that

appellant committed the traffic violation of failing to

The [*8] warrantless temporary detention of yield the right of way. The record indicates that appellant

appellant was reasonable. A warrantless temporary did not yield the right of way to Hodges. Specifically,

detention, such as the traffic stop in this case, is lawful appellant allowed the front end of his SUV to enter the

when the officer has reasonable suspicion to believe that highway from the apartment complex's driveway when

an individual is violating the law. Ford, 158 S.W.3d at Hodges was approaching on the highway to be entered,

492. Reasonable suspicion exists if the officer has namely W est Main Street. See id.; see, e.g., Thomas v.

specific articulable facts that, when combined with State, 336 S.W.3d 703, 708-09 (Tex. App.--Houston [1st

rational inferences from those facts, would lead him to Dist.] 2010, pet. ref'd) (traffic stop for failing to yield

reasonably suspect that a person has engaged, is right [*10] of way was justified when defendant's abrupt

engaging, or soon will be engaging in criminal activity. turn forced officer to apply brakes in order to avoid a

Abney, 394 S.W.3d at 548. This objective standard collision).

disregards the officer's subjective intent and looks solely

at whether an objective basis for the detention exists. The trial court did not err in denying appellant's

Ford, 158 S.W.3d at 492. A reasonable-suspicion motion to suppress. Appellant's first issue is overruled.

determination is made by considering the totality of the

circumstances at the time of the detention and must be C. The State's drawing of appellant's blood without a

based on commonsense judgments and inferences about warrant was not reasonable because the State failed to

human behavior. Illinois v. Wardlow, 528 U.S. 119, 125, establish a recognized exception to the Fourth

120 S. Ct. 673, 145 L. Ed. 2d 570 (2000); State v. Amendment's warrant requirement.

Woodard, 341 S.W.3d 404, 412 (Tex. Crim. App. 2011). The State's drawing of appellant's blood without a

In this case, Hodges testified that he stopped warrant was not reasonable. The State failed to establish a

appellant for failing to yield the right of way. In order to recognized exception to the Fourth Amendment's warrant

satisfy its burden, the State was required to show that requirement.3 A blood draw conducted at the direction of

Hodges had a reasonable suspicion that appellant the police is a search subject to the reasonableness

violated section 545.155 of the Texas Transportation requirement of the Fourth Amendment. Schmerber v.

Code by failing to yield the right of way. See Abney, 394 California, 384 U.S. 757, 767, 86 S. Ct. 1826, 16 L. Ed.

S.W.3d at 548. 2d 908 (1966). A warrantless search of the person is

unreasonable unless it falls within a recognized exception

Section 545.155 provides that "[a]n operator about to to the warrant requirement. McNeely, 133 S. Ct. at 1558.

enter or cross a highway from an alley, building, [*9] or

Voluntary consent to search and exigent circumstances new trial, the State acknowledged that, under McNeely,

are among the recognized exceptions. McGee v. State, "it is not a per se exception to the general warrant

105 S.W.3d 609, 615 (Tex. Crim. App. 2003). W e are requirement . . . that alcohol naturally dissipates in the

persuaded by the reasoning of our sister courts of appeal blood stream." The State argues, however, that exigent

and join them in concluding that the repeat-offender circumstances did justify the warrantless blood draw in

provision of the implied-consent statute, see Tex. Transp. this case. The State avers that two hours elapsed from the

Code Ann. § 724.012(b)(3)(B), is not one of the time of the traffic stop to the time that appellant's blood

recognized exceptions to the warrant requirement. State was drawn. The State contends that the additional time

v. Anderson, S.W.3d , , No. 09-13-00400-CR, 2014 needed to acquire a warrant threatened the destruction of

Tex. App. LEXIS 11151, 2014 WL 5033262, at *15 (Tex. the evidence of appellant's blood alcohol content. The

App.--Beaumont Oct. 8, 2014, no pet. h.); Aviles v. State, State's position is untenable because it is not supported by

S.W.3d , , No. 04-11-00877-CR, 2014 Tex. App. evidence in the record.

LEXIS 8508, 2014 WL 3843756, at *3 (Tex. App.--San

The exigent circumstances exception applies "when

Antonio Aug. 6, 2014, pet. filed) [*11] ; Forsyth v. State,

the exigencies of the situation make the needs of law

438 S.W.3d 216, 223 (Tex. App.--Eastland 2014, pet.

enforcement so compelling that a warrantless search is

filed); Sutherland v. State, 436 S.W.3d 28, 41 (Tex. App.-

objectively reasonable under the Fourth Amendment."

-Amarillo 2014, pet. filed); Weems v. State, 434 S.W.3d

McNeely, 133 S. Ct. at 1558 (quoting Kentucky v. King,

655, 665 (Tex. App.--San Antonio 2014, pet. granted);

U.S. , , 131 S. Ct. 1849, 1856, 179 L. Ed. 2d 865

Reeder v. State, 428 S.W.3d 924, 930 (Tex. App.--

(2011)). The State has a compelling need to prevent the

Texarkana 2014, pet. granted); State v. Villarreal,

imminent destruction of evidence. Id. A law enforcement

S.W.3d , , No. 13-13-00253-CR, 2014 Tex. App.

officer may conduct a search without a warrant if, under

LEXIS 645, 2014 WL 1257150, at *11 (Tex. App.--

the circumstances, the delay necessary to obtain a warrant

Corpus Christi Jan. 23, 2014, pet. granted).

threatens the destruction of evidence. Schmerber, 384

U.S. at 770.

3 To the extent appellant asks us to decide the

constitutionality of the implied-consent statute, W e must look to [*13] the totality of the

we decline his invitation. "The constitutionality circumstances as set forth in the record to determine

of a statute is not to be determined in any case whether the officer faced an exigency that justified acting

unless such a determination is absolutely without a warrant. McNeely, 133 S. Ct. at 1559. However,

necessary to decide the case in which the issue is "in order to establish a plausible justification for an

raised." State ex rel. Lykos v. Fine, 330 S.W.3d exigent circumstances exception to the warrant

904, 909 (Tex. Crim. App. 2011) (quoting Briggs requirement, the State ha[s] the burden to show facts and

v. State, 740 S.W.2d 803, 806-07 (Tex. Crim. App. circumstances beyond the passage of time and the

1987)). Because section 724.012(b)(3)(B) is not a resulting dissipation of alcohol in the bloodstream."

recognized exception to the Fourth Amendment's Douds v. State, 434 S.W.3d 842, 851 (Tex. App.--Houston

warrant requirement and because the State did not [14th Dist.] 2014, pet. granted) (en banc, op. on reh'g).

satisfy its burden to establish a recognized

Here, the State has not shown or articulated any facts

exception to the warrant requirement, we

supporting the existence of an exigency beyond the

conclude that appellant's Fourth Amendment

passage of time and the resulting dissipation of alcohol in

rights were violated. Therefore, it is not

the bloodstream. The record shows that Hodges initiated

"absolutely necessary" for us to decide whether

the traffic stop just after 2:00 a.m. on April 2, 2012.

section 724.012(b)(3)(B) is unconstitutional,

Hodges arrested appellant at 2:46 a.m. The nurse drew

either facially or as applied to appellant.

appellant's blood at 4:20 a.m. Although Hodges testified

Therefore, the State was required to prove that the that he was aware that he could obtain a blood-draw

warrantless intrusion into appellant's veins was justified warrant, the record contains no evidence that he

by exigent circumstances or valid consent.4 attempted to acquire such a warrant. Additionally, the

record contains no evidence regarding what Hodges knew

4 The State has not argued that any other about the time needed to obtain a warrant. The State

recognized exception to the warrant requirement presented no evidence that further delay to obtain a

applies to this case. warrant threatened the destruction of evidence. [*14] The

only evidence of an exigency in this case is the two hours

1. The drawing of appellant's blood without a warrant that elapsed from the time of the traffic stop to the time of

was not justified by exigent circum stances. the warrantless blood draw and the resulting dissipation

of alcohol in appellant's blood stream.

The State has not met its burden to establish the

exigent circumstances exception [*12] to the warrant Even though findings of historical fact supported by

requirement. At the hearing on appellant's motion for the record must be implied in favor of the trial court's

ruling, whether those facts meet the legal standard of se rule of irrevocable consent by comparing a

exigent circumstances is a legal question we review de warrantless blood draw to an administrative

novo. Douds, 434 S.W.3d at 855. The findings that can search at an airport is unconvincing.

be implied on this record do not support the conclusion

The State has not met its burden to establish that

that the delay necessary to obtain a warrant threatened

exigent circumstances justified the warrantless search into

the imminent destruction of the evidence of appellant's

appellant's veins.

blood alcohol content.

Nor does the record support the dissent's position 2. The drawing of appellant's blood without a warrant

that appellant posed a risk similar to that of a suspected was not justified by valid consent.

terrorist in a highly crowded airport. Here, appellant was

The State next contends, "It is well settled that one of

in police custody and no longer a threat to anyone on the

the established exceptions to a warrant requirement is a

public roadways. This is in marked contrast to the would-

search pursuant to consent." The State equates statutory

be "air pirate" in the "zone of danger." The warrantless

implied consent with the recognized consent exception to

search in this case was for evidence of intoxication, not

the Fourth Amendment's warrant requirement. The State's

for weapons or implements of mass destruction that

position is that a suspect with two prior DW I convictions

could still be used. Further, the dissent advances an

has irrevocably consented to a mandatory warrantless

argument that was not advanced by the [*15] State at

blood draw. W e disagree and conclude that, under the

trial or on appeal. 5

totality of the circumstances in the record, the State has

not met its burden to establish that the warrantless search

5 W e also note that courts deciding the validity

into appellant's veins was justified by valid consent.6

of searches at airports after the 9/11 terrorist

attacks have eschewed the notion that searches at

6 Like the First Court of Appeals in Perez v.

airports are justified by consent. See United

State, we do not consider the constitutionality of

States v. Aukai, 497 F.3d 955, 960-61 (9th Cir.

the implied-consent statute. See S.W.3d , ,

2007) (en banc) (overruling prior cases that

No. 01-12-01001-CR, 2014 Tex. App. LEXIS

predicated the reasonableness of airport screening

2681, *16, 2014 WL 943126, at *7 (Tex. App.--

on ongoing consent or irrevocable implied

Houston [1st Dist.] Mar. 11, 2014, no pet.); supra

consent; "[G]iven that consent is not required, it

note 3. Rather, we must decide an issue not

makes little sense to predicate the reasonableness

addressed in Perez--whether [*17] such implied

of an administrative airport screening search on

consent can be revoked.

an irrevocable implied consent theory."); see also

Corbett v. Transp. Sec. Admin., 767 F.3d 1171,

a. Consent under the Fourth Am endm ent

1180 (11th Cir. 2014) (describing airport search

as administrative search rather than consent Under the Fourth Amendment, a warrantless search

search); George v. Rehiel, 738 F.3d 562, 575 (3d authorized by consent is wholly valid. Schneckloth v.

Cir. 2013) (noting that airport screening was Bustamonte, 412 U.S. 218, 222, 93 S. Ct. 2041, 36 L. Ed.

permissible under administrative search doctrine); 2d 854 (1973). Like searches justified by consent in other

Elec. Privacy Info. Ctr. v. Dep't of Homeland contexts, "consent to a blood test must be free and

Sec., 653 F.3d 1, 10, 397 U.S. App. D.C. 313 voluntary, and it must not be the result of physical or

(D.C. Cir. 2011) (screening passengers at an psychological pressures brought to bear by law

airport is an administrative search). In fact, Texas enforcement." Fienen v. State, 390 S.W.3d 328, 333 (Tex.

courts have held that travelers who attempt to Crim. App. 2012). A person's consent is not voluntary if

board a commercial aircraft or check their his will was overborne and his capacity for self-

baggage lack standing to challenge the search determination was critically impaired. See Schneckloth,

because they do not have a reasonable 412 U.S. at 225-26; Fienen, 390 S.W.3d at 333.

expectation of privacy. E.g., Kjolhede v. State,

Moreover, a person is free to limit the scope of or

333 S.W.3d 631, 633-34 (Tex. App.--Dallas 2009,

even revoke the consent that was given. Florida v.

pet. ref'd); Turner v. State, 132 S.W.3d 504, 507-

Jimeno, 500 U.S. 248, 252, 111 S. Ct. 1801, 114 L. Ed. 2d

08 (Tex. App.--Houston [1st Dist.] 2004, pet.

297 (1991); Valtierra v. State, 310 S.W.3d 442, 450 (Tex.

ref'd); see also Florida v. J.L., 529 U.S. 266, 274,

Crim. App. 2010). If a person withdraws his or her

120 S. Ct. 1375, 146 L. Ed. 2d 254 (2000)

consent before the search is completed, the police cannot

(reasonable expectation of privacy is diminished

continue searching based on the prior consent. See, e.g.,

at airports). In a post-9/11 world, a person's

Mason v. Pulliam, 557 F.2d 426, 429 (5th Cir. 1977)

submission to administrative airport screening has

(citizen's withdrawal of consent and reinvocation of

little to do with his or her consent, implied [*16]

Fourth Amendment rights did not affect validity of IRS

or otherwise. The dissent's effort to justify a per

agent's actions prior to receiving notice of citizen's

withdrawal of consent). A suspect's ability to withdraw within the state, to consent to blood alcohol content

his or her consent is particularly important in cases like testing if they are arrested or detained on suspicion of

this one that involve a compelled intrusion into the drunk driving. McNeely, 133 S. Ct. at 1566. Implied-

human body. See McNeely, 133 S. Ct. at 1565 ("W e have consent statutes do not generally authorize searches;

never retreated . . . from our recognition that any instead, they authorize [*20] the police to require

compelled intrusion into the human body implicates motorists to choose between giving actual consent or

significant, constitutionally [*18] protected privacy withdrawing their "implied consent" and suffering the

interests."). consequences. State v. Padley, 2014 WI App 65, 354 Wis.

2d 545, 849 N.W.2d 867, 880 (Wis. Ct. App. 2014); see

It is the State's burden to show valid consent by clear

McNeely, 133 S. Ct. at 1566. A suspect who consents

and convincing evidence. Fienen, 390 S.W.3d at 333.

when presented with the choice has given actual consent,

The question of whether a person's consent was valid is

but a suspect who refuses to consent withdraws the

one of fact to be determined from the totality of the

statutorily "im plied consent" and accep ts the

circumstances and from the point of view of the

consequences of that choice. Padley, 849 N.W.2d at 879.

objectively reasonable person. Id. "The standard for

In this respect, choosing to submit a breath or blood

measuring the scope of a suspect's consent under the

specimen rather than accepting the consequences of

Fourth Amendment is that of 'objective' reasonableness--

refusal is valid consent under the Fourth Amendment. See

what would the typical reasonable person have

McGautha v. California, 402 U.S. 183, 213, 91 S. Ct.

understood by the exchange between the officer and the

1454, 28 L. Ed. 2d 711 (1971) ("The criminal process . . .

suspect?" Jimeno, 500 U.S. at 251. One of the factors in

is replete with situations requiring 'the making of difficult

determining the validity of a search based on consent is

judgments' as to which course to follow. Although a

whether the suspect had the option to withdraw his or her

defendant may have a right . . . to follow whichever

consent. Flores v. State, 172 S.W.3d 742, 749 (Tex. App.-

course he chooses, the Constitution does not . . . always

-Houston [14th Dist.] 2005, no pet.).

forbid him to choose." (citations omitted)), vacated on

An officer's invocation of section 724.012(b)(3)(B) other grounds sub nom, Crampton v. Ohio, 408 U.S. 941,

is not alone sufficient to establish the existence of valid 92 S. Ct. 2873, 33 L. Ed. 2d 765 (1972); Cantu v. State,

consent justifying a warrantless blood draw. In McNeely, 738 S.W.2d 249, 256 (Tex. Crim. App. 1987) ("No

the Supreme Court rejected the state's argument that constitutional violation is presented by the fact of a

"whenever an officer has probable cause to believe an difficult decision for a defendant.").

individual has been driving under the influence of

The Texas implied-consent statutory scheme is

alcohol, exigent circumstances will necessarily exist

similar to the general model. In Texas, "implied consent"

because [blood alcohol content] evidence is inherently

means that a person arrested for DW I is deemed to have

evanescent." McNeely, 133 S. Ct. at 1560. The Court

consented to the taking of one or more specimens of the

held that the dissipation of alcohol in the blood does not

person's breath or blood for analysis to determine [*21]

categorically support a finding [*19] of exigency and

alcohol concentration. Tex. Transp. Code Ann. § 724.011

reiterated that "[w]hether a warrantless blood test of a

(W est 2011). A specimen can only be taken if the person

drunk-driving suspect is reasonable must be determined

agrees to an officer's request for one, unless the

case by case based on the totality of the circumstances."

provisions of 724.012(b) apply. Id. § 724.013 (W est

Id. at 1563. Here, the State's position is similar to that of

2011). If a person refuses an officer's request to submit a

the state in McNeely: whenever a person has been

specimen, the Department of Public Safety must

arrested for DW I and is a repeat offender, consent will

immediately suspend the person's driver's license. Id. §

necessarily exist because section 724.012(b)(3)(B) says it

724.035 (W est 2011). At issue in this case is section

does. Like the McNeely Court, we reject the State's

724.012(b)(3)(B) of the Transportation Code, the repeat-

argument in favor of a categorical rule supporting a

offender provision of the implied-consent statute. This

finding of irrevocable consent and instead reiterate that

provision requires an officer to take a specimen of a

whether a warrantless blood test of a drunk-driving

person's breath or blood if (1) the officer arrests the

suspect is reasonable under the Fourth Amendment must

person for DW I, (2) the person refuses the officer's

be determined case by case based on the totality of the

request to submit a specimen voluntarily, and (3) at the

circumstances. Therefore, in this case, we must look at

time of arrest, the officer possesses or receives reliable

the facts and circumstances beyond application of section

information from a credible source that the person has

724.012(b)(3)(B) to determine whether the search into

been previously convicted of DW I on two or more prior

appellant's veins was justified by valid consent.

occasions. Id. § 724.012(b)(3)(B).

b. Im plied Consent

c. Analysis

G enerally, im p lied -c o n se n t sta tu te s re q uire

Applying the Fourth Amendment standards, the

motorists, as a condition of operating a motor vehicle

applicable provisions of Texas's implied-consent statute,

and the appropriate standard of review, we conclude the physical force to compel submission." Id. at 333 (quoting

State has not carried its burden to prove the existence of Forte v. State, 759 S.W.2d 128, 138 (Tex. Crim. App.

valid consent in this case. W e acknowledge that the 1988), overruled on other grounds, McCambridge v.

record supports a finding that the statutory requirements State, 778 S.W.2d 70 (Tex. Crim. App. 1989) (internal

for a mandatory blood draw were [*22] met. Appellant quotations omitted)). Although the repeat-offender

was arrested for DW I and was deemed by the implied- provision of the implied-consent statute was not at issue

consent statute to have consented to submitting a in the Fienen court's analysis, see 390 S.W.3d at 333, the

specimen of his breath or blood. Because appellant had Supreme Court's recent abolition of categorical rules

been convicted of DW I on two prior occasions and justifying exceptions to the warrant requirement

refused to submit a blood specimen voluntarily, Hodges persuades us that the use of physical force to compel

was required by the mandatory blood draw provision of submission, particularly in the face of physical resistance,

the implied-consent statute to obtain a specimen of is equally forbidden when the repeat-offender provision is

appellant's breath or blood. Furthermore, appellant at issue in the court's analysis, as it is in this case. See

stipulated to the prior convictions at trial and does not McNeely, 133 S. Ct. at 1563; see also Aviles v. Texas,

contest that Hodges complied with the statute by U.S. , , 134 S. Ct. 902, 902, 187 L. Ed. 2d 767 (2014)

requiring him to submit to the taking of a blood (remanding, for consideration in light of McNeely,

specimen. factually similar case involving repeat-offender provision

of implied-consent law); Tex. Dept. of Pub. Safety v.

The record supports a finding that appellant

Watson, 945 S.W.2d 262, 266 (Tex. App.--Houston [1st

effectively withdrew his implied consent. Hodges

Dist.] 1997, no pet.) ("[A] person cannot be forced to

testified that appellant refused consent to the blood draw.

breathe into a breathalyzer or have a needle with syringe

After discovering appellant's two prior DW I convictions,

forcibly poked into his arm."). W ere it otherwise, we

Hodges took appellant to the hospital for the mandatory

would be creating a per se exception to the warrant

blood draw. At this point, the record indicates that

requirement for DW I repeat offenders. As the United

appellant physically resisted to the taking of his blood.

States Supreme Court made clear in M cNeely, this we

Specifically, three people had to hold appellant down so

cannot do.7

the nurse could complete the blood-draw procedure. The

explicit refusal coupled with the physical refusal to

7 W e acknowledge, as does the dissent, that "the

submit to the taking of a blood specimen effectively

permissibility of a [*25] particular practice 'is

withdrew [*23] appellant's prior implied consent. See

judged by balancing its intrusion on the

Jimeno, 500 U.S. at 251 (scope of consent is determined

individual's Fourth Amendment interests against

by what a reasonable person would have understood by

its promotion of legitimate governmental

the exchange between the officer and the suspect).

interests.'" Skinner v. Ry. Labor Execs. Ass'n, 489

Despite this withdrawal of consent and without obtaining

U.S. 602, 619, 109 S. Ct. 1402, 103 L. Ed. 2d 639

a warrant, Hodges forced appellant to submit a blood

(1989) (quoting Delaware v. Prouse, 440 U.S.

specimen. Hodges's only justification for mandating the

648, 654, 99 S. Ct. 1391, 59 L. Ed. 2d 660

warrantless blood draw was his application of section

(1979)). However, in this case, the balance of the

724.012(b)(3)(B).

State's interests in eradicating the drunken driving

The totality of the circumstances in this case problem against the individual's constitutionally-

demonstrates that appellant withdrew his consent prior to protected interest in his or her bodily integrity

the warrantless blood draw. In light of appellant's undermines the dissent's position in favor of

withdrawal of consent and because the State's only irrevocable consent based solely on the

j u s t i f i c a t i o n f o r c o n d u c t i n g th e w a r r a n tle s s individual's status as a repeat offender.

nonconsensual blood draw was the repeat-offender

The drunken driving problem is a national

provision of the implied-consent statute, we conclude the

epidemic, and the State has an important interest

State has not met its burden to establish the existence of

in eradicating it. See McNeely, 133 S. Ct. at 1565.

valid consent justifying the warrantless blood draw.

The State also has an interest in protecting law-

In reaching this conclusion, we recognize the abiding drivers from drunk drivers. But when

apparent inconsistency between deemed consent under balanced against the serious bodily intrusion

the implied-consent statute and a person's absolute right necessitated by a warrantless mandatory blood

to refuse a test. See Fienen, 390 S.W.3d at 332-33. The draw, we conclude that the State's interests are

Court of Criminal Appeals has explained this sufficiently served by the provision in the

inconsistency: "[C]onsent being implied by law, a driver T ransportation Code mandating immediate

may not legally refuse. A driver, however, can physically suspension of a person's driver's license when the

refuse [*24] to submit, and the implied-consent law, person refuses to submit to a blood draw, or, in

recognizing that practical reality, forbids the use of the case of a person without a license, issuance of

an order denying the issuance of a license to that precludes an officer from first obtaining a warrant.

person. See Tex. Transp. Code Ann. § 724.035(a) See, e.g., Ala. Code §§ 32-5-192, 32-5-200

(W est 2011). Furthermore, in this case, appellant (W estlaw); Alaska Stat. Ann. § 28.35.032

was in custody. [*26] He no longer posed a (W estlaw); Ariz. Rev. Stat. Ann. §§ 28-1321, 28-

threat to public safety. And nothing in the record 1388 (W estlaw); Ark. Code Ann. §§ 5-65-202, 5-

suggests that Hodges was prevented from 65-205 (W estlaw); [*28] Cal. Veh. Code §§

obtaining a warrant. 13353, 23612 (W estlaw); Colo. Rev. Stat. Ann. §§

42-4-1301, 42-4-1301.1 (W estlaw); Conn. Gen.

W e are not persuaded by the State's argument that,

Stat. Ann. §§ 14-227b, 14-227c (W estlaw)

by citing favorably to implied-consent statutes

(amended 2014); Del. Code Ann. tit. 21, §§ 2740,

throughout the country, the McNeely Court endorsed the

2741 (W estlaw); Fla. Stat. Ann. § 316.1932

use of implied-consent statutes as a means to justify the

(W estlaw); Ga. Code Ann. § 40-5-67.1 (W estlaw);

warrantless intrusion into a nonconsenting suspect's

Haw. Rev. Stat. §§ 291E-15, 291E-21 (W estlaw);

veins. The Court's statement that implied-consent laws

Idaho Code Ann. § 18-8002 (W estlaw); 625 Ill.

"impose significant consequences when a motorist

Com p. Stat. Ann. 5/11-501.1, 5/11-501.6

withdraws consent" presupposes that a motorist has the

(W estlaw); Ind. Code Ann. §§ 9-30-6-1, 9-30-6-3,

right to withdraw his or her consent. McNeely, 133 S. Ct.

9-30-6-7 (W estlaw); Iowa Code Ann. §§ 321J.6,

at 1566; see Forsyth, 438 S.W.3d at 222 ("The Court's

321J.9, 321J.10A (W estlaw); Kan. Stat. Ann. §§

language does suggest . . . that an accused can withdraw

8-1001, 8-1002 (W estlaw); Ky. Rev. Stat. Ann. §§

his or her consent to submit a specimen for testing in

189A.103, 189A.105, 189A.107 (W estlaw); La.

direct contradiction to the State's argument that implied

Rev. Stat. Ann. §§ 32:661, 32:666 (W estlaw); Me.

consent is irrevocable."); see also Tex. Transp. Code

Rev. Stat. Ann. tit. 29-A, § 2521 (W estlaw); Md.

Ann. § 724.035(a) (W est 2011) (providing for immediate

Code Transp. Ann. § 16-205.1 (W estlaw); Mass.

suspension of license upon a person's refusal to submit to

Gen. Laws ch. 90, § 24 (W estlaw); M ich. Comp.

the taking of a specimen).8 Furthermore, while "a

Laws. Ann. §§ 257.625c, 257.625d (W estlaw);

majority of States either place significant restrictions on

Minn. Stat. Ann. §§ 169A.51, 169A.52 (W estlaw);

when the police officers may obtain a blood sample

Miss. Code Ann. §§ 63-11-5, 63-11-8, 63-11-21

despite a suspect's refusal (often limiting testing to cases

(W estlaw); M o. Rev. Stat. §§ 577.033, 577.041

involving an accident resulting in death or serious bodily

(W estlaw) (amended 2014); Mont. Code Ann. §

injury) [*27] or prohibit nonconsensual blood tests

61-8-402 (W estlaw); Neb. Rev. Stat. Ann. §§ 60-

altogether," McNeely, 133 S. Ct. at 1566, Texas is the

6,197, 60-6,210, 60-498.01 (W estlaw); Nev. Rev.

only state that purports to allow police officers to

Stat. Ann. §§ 484C.150, 484C.160 (W estlaw)

forcibly draw a DW I suspect's blood without a warrant

(permitting use of "reasonable force" under

based solely on the suspect's status as a repeat offender. 9

certain circumstances when a person refuses);

Lastly, the State's position fails to acknowledge that an

N.H. Rev. Stat. Ann. § 265-A:14 (W estlaw); N.J.

officer who obtains a blood-draw warrant can still

Stat. Ann. §§ 39:4-50.2, 39:4-50.4a (W estlaw);

comply with the "shall require" language of section

N.M. Stat. Ann. § 66-8-111 (W estlaw); N.Y. Veh.

724.012(b) while at the same time not running afoul of

& Traf. Laws § 1194 (W estlaw); N.C. Gen.

the Fourth Amendment. See McGruder v. State,

Stat. Ann. § 20-16.2 (W estlaw); N.D. Cent. Code

S.W.3d , , No. 10-13-00109-CR, 2014 Tex. App.

Ann. §§ 39:20-01, 39:20-01.1, 39:20-04

LEXIS 9022, *8, 2014 WL 3973089, at *3 (Tex. App.--

(W estlaw); Ohio Rev. Code Ann. § 4511.191

Waco Aug. 14, 2014, pet. filed) ("[S]ection 724.012(b)

(W estlaw) (allowing officer to employ "whatever

does not require a blood or breath specimen be taken

reasonable means are necessary" to ensure

contrary to the Fourth Amendment; that is, without a

submission; providing officers with criminal and

warrant or without a recognized exception to the warrant

civil immunity); Okla. Stat. Ann. tit. 47, § 753

requirement.")

(W estlaw); Or. Rev. Stat. Ann. §§ 813.095,

813.100 (W estlaw); 75 Pa. Cons. Stat. Ann. §

8 Justice Sotomayor's discussion of implied-

1547 (W estlaw); R.I. Gen. Laws Ann. § 31-27-2.1

consent laws, which the State is using as the basis

(W estlaw) (amended 2014); S.C. Code Ann. §§

for its argument, was not joined by a majority of

56-5-2950, 56-5-2951 (W estlaw) (amended by

the Court. See Forsyth, 438 S.W.3d at 222 n.3.

2014 S.C. Act 158); S.D. Codified Laws §§ 32-23-

9 W e do note that Nevada's and Ohio's implied-

1, 32-23-10 (W estlaw) (officer can "require"

consent schemes seem to allow officers to use

suspect arrested for DW I to submit); Tenn. Code

"reasonable force" or "whatever reasonable

Ann. § 55-10-406 (W estlaw); Utah Code Ann. §§

means are necessary" to obtain samples from a

41-6a-520, 41-6a-524 (W estlaw); Vt. Stat. Ann.

person who refuses. Like the Texas statute,

tit. 23, § 1202 (W estlaw); Va. Code Ann. §§ 18.2-

however, neither the Nevada nor the Ohio statute

268.2, 18.2-268.3 (W estlaw) (refusal is a separate

crime); Wash. Rev. Code Ann. § 46.20.308 CR, 2014 Tex. App. LEXIS 8054, 2014 WL

(W estlaw); W. Va. Code Ann. § 17C-5-7 3697917, at *2 (Tex. App.--Houston [1st Dist.]

(W estlaw); Wis. Stat. Ann. § 343.305 (W estlaw); July 24, 2014, no pet.) (mem. op., not designated

Wyo. Stat. Ann. § 31-6-102 (W estlaw). for publication) (same).

Nor are we persuaded by the State's reliance on Additionally, Beeman is distinguishable. The officer

dictum in Beeman v. State describing the implied-consent in Beeman arrested the defendant for DW I and obtained a

statute as "ano ther metho d o f co nd uc ting a warrant to draw his blood. 86 S.W.3d at 614. The

constitutionally valid [warrantless] [*29] search." 86 defendant, who refused a breath test and objected to the

S.W.3d 613, 615 (Tex. Crim. App. 2002). First, a statute blood draw, argued that the search was invalid because it

cannot authorize what the Constitution forbids. State v. violated the implied-consent statute--i.e., he revoked his

Mosely, 348 S.W.3d 435, 442 (Tex. App.--Austin 2011, consent. Id. at 615. The court held that "once a valid

pet. ref'd). search warrant is obtained[,] . . . consent, implied or

explicit, becomes moot." Id. at 616. Here, in contrast,

Second, the San Antonio Court of Appeals relied on

Hodges never obtained a warrant and relied solely on the

the Beeman dictum in Aviles v. State, 385 S.W.3d 110

repeat-offender provision of the implied-consent statute

(Tex. App.--San Antonio 2012), vacated, 134 S. Ct. 902,

to justify the forced blood draw. The totality of the

187 L. Ed. 2d 767 (2014), a factually similar case

circumstances surrounding appellant's consent, and his

involving section 724.012(b)(3)(B). There, the San

effective withdrawal of consent, is therefore not moot; to

Antonio court held that section 724.012(b)(3)(B) permits

the contrary, it is of utmost [*31] importance in assessing

an officer to take a blood specimen from a DW I suspect

the reasonableness of the search under the Fourth

without a warrant if the officer has information that the

Amendment. For these reasons, we conclude that the

suspect has been previously convicted of DW I on at least

State's reliance on Beeman for the proposition that section

two prior occasions. Aviles, 385 S.W.3d at 116. The

724.012(b)(3)(B) permits the warrantless blood draw

Supreme Court vacated the San Antonio court's judgment

from a DW I suspect who has effectively withdrawn his

and remanded the case for consideration in light of

implied consent is not persuasive.

McNeely. Aviles, 134 S. Ct. at 902. The San Antonio

court recently issued a new opinion in Aviles, rejecting Finally, the dissent suggests that appellant is similar

its earlier reliance on the Beeman dictum and holding to the defendant in United States v. Knights, 534 U.S.

that section 724.012(b)(3)(B) is not a permissible 112, 122 S. Ct. 587, 151 L. Ed. 2d 497 (2001). The facts

exception to the warrant requirement. 2014 Tex. App. of this case, however, are distinguishable. In Knights, the

LEXIS 8508, 2014 WL 3843756, at *3. 1 0 The Supreme defendant was on probation and agreed in writing to

Court's remand of Aviles suggests that section submit his person, property, place of residence, vehicle,

724.012(b)(3)(B) cannot serve as the sole basis for and personal effects to search at any time, with or without

mandating a warrantless blood draw when the totality of a search warrant, warrant of arrest, or reasonable cause by

the circumstances surrounding the blood draw indicate a any probation officer or law enforcement officer. 534

lack of valid consent. U.S. at 114. Here, in contrast, the record contains no

evidence to suggest that appellant was on probation when

10 See also Forsyth, 438 S.W.3d at 221 the offense occurred, or that he agreed in writing to

(declining to rely on Beeman for proposition that submit to a warrantless search by probation officials or

implied consent is a valid exception to the anyone else. Appellant was not searched as a condition of

warrant requirement); Sutherland, 436 S.W.3d at probation. Furthermore, searches such as the one in

35-36 (discussing Beeman in the context of the Knights are viewed in a different context because

remand of Aviles); Weems, 434 S.W.3d at 660-61 probation (and parole) is considered an extension of

(same); Reeder, 428 S.W.3d at 928 (noting the incarceration. See id. at 119 ("Inherent in the very nature

Supreme Court's remand [*30] of Aviles casts of probation [*32] is that probationers do not enjoy the

"grave doubt" on the reasoning of Beeman); absolute liberty to which every citizen is entitled."

Villarreal, S.W.3d at , 2014 Tex. App. LEXIS (internal quotations omitted)). Nothing in the record

645 at *20 2014 WL 1257150, at *11 (noting the before us suggests that appellant was subject to some sort

Beeman court recognized that implied-consent of "conditional liberty" as contemplated in Knights. Nor

laws do not give police officers anything more did the State assert at trial or on appeal that the search of

than what the Constitution already gives them). appellant was based on such an exception.

But see Perez, 2014 Tex. App. LEXIS 2681, 2014

In sum, appellant withdrew his implied consent when

WL 943126, at *6-*7 (relying solely on Beeman

he refused to submit to the blood draw, and the State, in

dictum in a section 724.012(b)(3)(B) case to

spite of appellant's physical resistance, forcibly poked a

justify warrantless blood draw; providing no

syringe into his arm and drew his blood anyway. Given

discussion of or citation to cases rejecting

the absence of a warrant, the absence of exigent

Beeman dictum); Kay v. State, No. 01-13-00595-

circumstances, and the absence of valid consent, we DISSENT

conclude the State did not establish that the

nonconsensual warrantless intrusion into appellant's DISSENTING OPINION

veins was reasonable under the Fourth Amendment or

The Fourth Amendment to the United States

that a recognized exception to the Fourth Amendment's

Constitution provides that "[t]he right of the people to be

warrant requirement applied to this case. The trial court

secure in their persons ... against unreasonable searches

erred when it overruled appellant's motion for new trial.

and seizures, shall not be violated, and no warrants shall

issue" unless the warrants meet certain requirements.1 The

3. The trial court's error in overruling appellant's

Supreme Court of the United States has determined that,

m otion for new trial was harm ful.

where a search is undertaken by law-enforcement

Having concluded that the trial court erred, we next officials to discover evidence of criminal wrongdoing, the

determine whether the trial court's error resulted in harm. Fourth Amendment generally requires the obtaining of a

In the face of constitutional [*33] error, we must reverse judicial warrant.2 In the absence of a warrant, a search is

the judgment of conviction unless we determine beyond reasonable under the Fourth Amendment only if it falls

a reasonable doubt that the error did not contribute to the within a specific exception to this general warrant

conviction or punishment. Tex. R. App. P. 44.2(a); requirement.3 One such exception is a search conducted

Holmes v. State, 323 S.W.3d 163, 173-74 (Tex. Crim. pursuant to consent.4

App. 2010) (op. on reh'g). In this case, the blood

evidence seized from appellant was inculpatory and was 1 U.S. Const. amend. IV; [*35] see also Tex.

used against appellant at trial. Specifically, evidence of Const. art. I, § 9.

appellant's blood alcohol content, which exceeded the 2 See Riley v. California, U.S. , , 134 S. Ct.

legal limit by nearly a factor of three, was presented at 2473, 2482, 189 L.Ed.2d 430 (2014).

trial. W e cannot determine beyond a reasonable doubt 3 See id.

that the State's use of the evidence of appellant's blood 4 See Schneckloth v. Bustamonte, 412 U.S. 218,

alcohol content did not contribute to appellant's 219, 93 S.Ct. 2041, 2043-44, 36 L.Ed.2d 854

conviction. See Holmes, 323 S.W.3d at 174. This (1973).

indicates that the trial court's erroneous ruling was indeed

Today, this court faces as issues of first impression

a contributing factor in appellant's conviction and

(1) whether section 724.012(b)(3)(B) of Texas's implied-

punishment. Therefore, the error was harmful.

consent statute falls within the consent exception to the

Appellant's second issue is sustained. warrant requirement and (2) whether consent under this

particular provision is revocable. More specifically, we

IV. C O N C LU SIO N must decide whether this subsection of the statute

provides a basis for concluding that appellant Jonathan

Because the traffic stop in this case was reasonable,

Albert Leal irrevocably consented to the blood draw. If

the trial court did not err when it denied appellant's

the trial court's ruling is supported by the record, we are

motion to suppress. W e overrule appellant's first issue.

to affirm that ruling if there is any valid theory of law that

W ith regard to appellant's second issue, the State did not

supports the ruling, even if the theory was not presented

carry its burden to prove a recognized exception to the

to the trial court and even if the theory is not advanced by

Fourth Amendment's warrant requirement. W e sustain

the prevailing party on appeal.5

appellant's second issue and hold that the drawing of

appellant's [*34] blood without a search warrant violated

5 Alford v. State, 400 S.W.3d 924, 928 n.2 (Tex.

the Fourth Amendment. The trial court erred in denying

Crim. App. 2013); Miller v. State, 393 S.W.3d

appellant's motion for new trial. Because the evidence of

255, 263 (Tex. Crim. App. 2012).

appellant's blood alcohol content was inculpatory, we

conclude it contributed to his guilt. See id. W e therefore The ultimate touchstone of the Fourth Amendment is

reverse the trial court's judgment and remand to the trial reasonableness.6 W e are to examine the totality of the

court for a new trial consistent with this opinion. circumstances to determine whether a search is

reasonable.7 The Fourth Amendment's protection against

/s/ Marc W . Brown

unreasonable searches and seizures requires courts

Justice reviewing searches to balance opposing interests and

determine the reasonableness of a particular search in a

Panel consists of Chief Justice Frost and Justices

particular context.8 W hether a search is reasonable

Donovan and Brown. (Frost, C.J., dissenting).

depends upon the degree to which it intrudes upon an

Publish -- T EX . R. A PP . P. 47.2(b).

individual's privacy and the degree to which [*36] it is

needed to promote legitimate government interests.9

DISSENT BY: Kem Thompson Frost

Thus, context is crucial in assessing reasonableness.

696 (2013).

6 Riley, U.S. at , 134 S. Ct. at 2482. 14 Maj. op. at .

7 Samson v. California, 547 U.S. 843, 848, 126

Consent exists because individuals are deemed to

S.Ct. 2193, 2197, 165 L.Ed.2d 250 (2006).

know the law.1 5 This is especially true for recidivists. By

8 See Scott v. Harris, 550 U.S. 372, 383, 127

nature, they are reoffenders who, after being convicted,

S.Ct. 1769, 1778, 167 L.Ed.2d 686 (2007).

break the same law again. In crafting many of our state's

9 Samson, 547 U.S. at 848, 126 S.Ct. at 2197.

statutory schemes, Texas lawmakers recognize the

distinct risk posed by recidivists and identify specific

Validity of Implied Consent to Blood Draw by DW I

consequences for reoffenders.1 6 Section 724.012(b)(3)(B)

Repeat Offenders

provides that, for a particular class of DW I reoffenders,

In assessing the validity of the implied consent in taking the action of driving on public [*38] roadways is

today's case, the issue is whether police reasonably could consent to a blood draw.1 7 Accordingly, police reasonably

assume that appellant, who twice before had been can assume that a DW I Repeat Offender who uses public

convicted of driving while intoxicated (D W I), roadways and is charged with knowledge of laws

irrevocably consented to a blood draw 10 through his governing such use, consents to a blood draw in the event

conduct in operating a motor vehicle on Texas's public a police officer has reasonable grounds to believe that the

roadways. Texas Transporta tion C o d e sections DW I Repeat Offender is driving while intoxicated. Just as

724.012(b)(3)(B) and 724.011 effectively advise it is reasonable for police officers to assume that the

individuals with two or more prior DW I convictions category of individuals who speak the words, "Yes, I give

("DW I Repeat Offenders") that police will interpret a you consent to search," in fact, have consented, a police

DW I Repeat Offender's conduct in operating a motor officer reasonably can interpret the conduct of a DW I

vehicle as giving consent to a blood draw in the event of Repeat Offender in driving a vehicle on the public street

a new DW I arrest. 1 1 as giving consent for the blood draw.1 8

10 Transportation Code Section 724.012 15 See Tex. Penal Code Ann. § 8.03 (W est

provides that a police officer "shall require the 2014); Johnson v. State, 423 S.W.3d 385, 388 n.2

taking of a specimen of breath or blood." Tex. (Tex. Crim. App. 2014).

Transp. Code Ann. § 724.012(b) (W est 2014). 16 See, e.g. Tex. Penal Code § 12.42 (W est

Under this statute, an officer may take a breath 2014).

sample rather than a blood sample. 17 Tex. Transp. Code Ann. § 724.012(b)(3)(B).

11 Tex. Transp. Code Ann. §§ 724.011, This opinion does not address whether an

724.012(b)(3)(B) (W est 2014). individual who drives on a public street has

consented to a search based of any other section

Implied consent, if otherwise valid, is sufficient to

of Texas Transportation Code Section 724.012.

support the consent exception.1 2 The majority, however,

18 As the majority acknowledges, the reality that

rejects implied consent and suggests that despite the

a driver must make a tough choice, between

statute's plain statement of the consequences flowing

driving and knowing that his conduct in driving

from a DW I arrest for [*37] a DW I Repeat Offender, a

will be interpreted as consent, does not render the

police officer cannot interpret a DW I Repeat Offender's

consent invalid.

conduct in operating a motor vehicle as consent to a

blood draw because such an interpretation would

Irrevocability of Consent

establish a categorical rule and categorical rules are

prohibited by the Supreme Court's opinion in Missouri v. The majority suggests that, in any event, appellant

McNeely.1 3 The majority says that "whenever a person effectively revoked any consent for the blood draw. But,

has been arrested for DW I and is a repeat offender, under Texas's [*39] statutory scheme, consent by a DW I

co nsent will necessarily exist because section Repeat Offender cannot be revoked.1 9 The majority states

724.012(b)(3)(B) says it does." 1 4 This oversimplification that there is a categorical rule that an individual's consent

of how this provision of the implied-consent statute to a search is limited in scope and that such consent is

operates skews the focus away from the important always subject to the right of withdrawal.2 0 The Supreme

contextual considerations that should drive the court's Court has found otherwise. Revocation is not always an

analysis. Analyzing consent in context leads to the option. In various contexts, the "right of withdrawal" has

opposite conclusion. been found unreasonable and unavailable.21 Drawing from

this body of jurisprudence and the intent and purpose of

12 M cGee v. State, 105 S.W.3d 609, 615 (Tex. the Texas Legislature in creating this particular provision

Crim. App. 2003). of the implied-consent statute, it makes more sense to

13 See maj. op. at ; Missouri v. McNeely, conclude that revocation of implied consent is not an

U.S. , , 133 S. Ct. 1552, 1561, 185 L. Ed. 2d option for a DW I Repeat Offender.

extend parole only because it is able to condition it upon

19 See Tex. Transp. Code Ann. § 724.011, et compliance with certain requirements.2 7 " 2 8 Significantly,

seq. the high court reasoned that the State is not required to

20 See Mason v. Pulliam, 557 F.2d 426, 428 "ignore the reality of recidivism or suppress its interests

(5th Cir. 1977). in 'protecting potential victims of criminal enterprise' for

21 See U.S. v. Spriggs, 30 F.3d 132, 132 (4th fear of running afoul of the Fourth Amendment." 2 9

Cir. 1994), cert. denied, 513 U.S. 1159, 115 S. Ct.

1120, 130 L. Ed. 2d 1083 (1995) (holding that 22 See U.S. v. Knights, 534 U.S. at 116, 122

visitor to prison could not revoke consent to S.Ct. at 590.

search); U.S. v. Knights, 534 U.S. 112, 116, 122 23 The Supreme Court of the United States also

S.Ct. 587, 590, 151 L.Ed.2d 497 (2001) (holding has upheld searches of parolees based on statutory

that probationers may not revoke consent to scheme as opposed to the parolee's signature on a

searches); U.S. v. Herzbrun, 723 F.2d 773, 775 form. See Samson v. California, 547 U.S. 843,

(11th Cir. 1984) (holding that airline passengers 857, 126 S. Ct. 2193, 165 L. Ed. 2d 250 (2006).

may not revoke consent to search); U.S. v. 24 Knights, 534 U.S. at 116, 122 S.Ct. at 590.

Haynie, 637 F.2d 227, 230 (4th Cir. 1980) The Court of Criminal Appeals of Texas has held

(same). that consent given by a probationer in accepting a

probation condition is invalid under the Fourth

Consent affects the balance of interests between an

Amendment and Article 1, Section 9 of the Texas

individual and the government.2 2 The balance can tip for

Constitution. See Tamez v. State, 534 S.W.2d 686,

or against revocation of consent, depending on the

690-92 (Tex. Crim. App. 1976). U.S. v. Knights

circumstances. For example, in the context of searches of

overruled Tamez with respect to the Fourth

probationers' homes, the Supreme Court, in United [*40]

Amendment. See Townes v. State, 293 S.W.3d 227,

States v. Knights, relied on a probationer's signed form 2 3

230-31 (Tex. App.--San Antonio 2009, no pet.).

to enforce the probationer's agreement to "submit to a

The Court of Criminal Appeals has held that

search 'by any probation officer or law enforcement

Article 1, Section 9 of the Texas Constitution does

officer.'" 2 4 In concluding that the probationer's motion to

not provide any greater right than the Fourth

suppress evidence from such a search should be denied,

Amendment. See Hulit v. State, 982 S.W.2d 431,

the Supreme Court reasoned that:

437 (Tex. Crim. App. 1998). Even if the Texas

Constitution did provide a greater right, the DW I

The judge who sentenced Knights to

search is based upon probable cause unlike the

probation determined that it was necessary

search probation condition determined to be too

to condition the probation on Knights'

broad in Tamez. See Tamez, 534 S.W.2d at 692.

acceptance of the search provision. It was

25 See id [*42] .

reasonable to conclude that the search

26 See id.

condition would further the two primary

27 Similarly, for DW I Repeat Offenders the

goals of probation--rehabilitation and

State of Texas has conditioned the privilege of

protecting society from future criminal

driving upon implied consent to a blood draw. See

violations. The probation order clearly

T e x . T ra n s p . C o d e A n n . § § 7 2 4 .0 1 1 ,

expressed the search condition and

724.012(b)(3)(B).

Knights was unambiguously informed of

28 See Samson, 547 U.S. at 850, 126 S.Ct. at

it. T he p ro b a tio n co nd itio n th us

2198.

significantly d im inish e d K n ights'

29 Id. at 849, 2198.

reasonable expectation of privacy. 534

U.S. at 119-20, 122 S.Ct. at 591-92. The Supreme Court's consideration of the "reality of

recidivism" as key to the government's interest in

protecting potential victims of crime has obvious

In weighing the government's interest in Knights, the application in the context of the DW I Repeat Offender,

high court, recognizing the context, noted that the who poses a grave risk to public safety on roadways.

probationer is more likely than the ordinary citizen to Courts have observed that "an automobile in the hands of

violate the law.25 In light of this reality, the Supreme a drunk driver can be just as lethal a weapon as a gun" 3 0

Court essentially determined that the State, to further its and have "repeatedly lamented" the "increasing slaughter

goal of protecting the public from past offenders, may on our highways. . . now reach[ing] the astounding

condition the granting of [*41] a privilege upon the past figures only heard of on the battlefield." 3 1 The high court's

offender's irrevocable consent to a search.2 6 And, in the determination that the State is not required to suppress its

context of parolees, the Supreme Court found it interests in protecting potential victims of crime out of

significant that "in most cases, the State is willing to concern of stepping on the Fourth Amendment is

particularly relevant and compelling in the repeat- majority cites cases holding that today airport searches

offender drunk-driving context. are administrative and no consent is needed at all. 3 9 The

majority argues that it is unpersuasive to attempt to

30 U.S. v. Tristan-Madrigal, 601 F.3d 629, 633- justify a rule of irrevocable consent by comparing a

34 (6th Cir. 2010) (internal quotations omitted). warrantless blood draw to an administrative search. But,

31 Michigan Dept. of State Police v. Sitz, 496 the danger factor that has driven courts to conclude

U.S. 444, 451, 110 S. Ct. 2481, 2486, 110 L. Ed. administrative searches are reasonable in the context of

2d 412 (1990) (internal quotations omitted). perilous and high-risk circumstances only further

supports the position that preventing a DW I Repeat

Similar public-safety concerns have prompted courts

Offender from revoking [*45] consent to a blood draw is

to fashion special exceptions to the warrant requirement

also reasonable under the Fourth Amendment. Though

and to disallow revocation of implied consent given in

administrative searches have no requirement of consent

exchange for a privilege. For example, in considering

or individualized suspicion, section 724.012(b)(3)(B)

consent [*43] given in exchange for the benefit of air

requires an officer to have made a valid arrest of a DW I

travel, courts have disallowed revocation, holding that

Repeat Offender before the officer obtains a blood draw.

officials are not required to ignore the attendant dangers

If administrative searches at airports are reasonable under

of air piracy. The Eleventh Circuit concluded, even

the Fourth Amendment, then it is also reasonable to

before the increased concern following the infamous

enforce this particular provision of the implied-consent

terrorist attacks on America on September 11, 2001, that

statute in the narrow context of DW I Repeat Offenders

to keep the airways safe from "the intense danger of air

exercising the privilege of driving on public roadways.

piracy," airports are "critical zones" in which special

Fourth Amendment considerations apply.32 Courts have

38 See maj. op. at .

determined that an individual who begins the process of

39 See George v. Rehiel, 738 F.3d 562, 575 (3d

airport screening may not avoid the search by asking to

Cir. 2013); Elec. Privacy Info. Ctr. v. U.S. Dep't

leave.3 3 Noting that air travel is a privilege, the Fourth

of Homeland Sec., 653 F.3d 1, 10, 397 U.S. App.

Circuit has reasoned that it may be conditioned upon

D.C. 313 (D.C. Cir. 2011); United States v. Aukai,

irrevocable consent to a search.3 4 In balancing the

497 F.3d 955, 960-61 (9th Cir. 2007) (en banc).

government's interest in disallowing revocation of

consent, courts have placed special focus on the statutory Today's case is similar to the special cases involving

scheme and purpose, noting that allowing an individual criminal recidivism and zones of danger. Yet, it presents

to leave after the individual has reached the point of a unique circumstance requiring review of a search in the

embarkation "greatly damages the prophylactic purpose multi-faceted context of (1) a recidivist (2) who has

of the search procedure." 3 5 Importantly, "the very fact engaged in dangerous conduct on the roadways, (3)

that a safe exit is available ... would, by diminishing the consented to a narrow search (blood draw or breath

risks, encourage attempts." 3 6 Courts have recognized the specimen in the event of another DW I arrest) in exchange

necessity for restricting [*44] the right to revoke consent for the privilege of being allowed to drive in spite of that

after this crucial point, noting that the problem with past dangerous conduct, (4) accepted the benefits of the

allowing a "safe exit" is that "established search conditioned privilege by driving on a public roadway, and

procedures are perhaps more valuable by what they (5) is arrested for engaging in the same highly dangerous

discourage than what they discover." 3 7 conduct again. Confronted [*46] with this extraordinary

public endangerment and the critical need to deter the

32 See Herzbrun, 723 F.2d at 775. fatal activity, the Texas Legislature enacted a series of

33 See id. laws,4 0 specifically focusing its efforts on the severe threat

34 Haynie, 637 F.2d at 230. posed by recidivists who fail to observe the prohibition

35 See United States v. Skipwith, 482 F.2d 1272, against drunk driving even after being convicted of the

1277, 1281 (5th Cir. 1973) (Aldrich, dissenting) offense at least twice before. Because this class of

(the majority agreed with this part of the offenders represents a particular, known, and heightened

dissenting opinion, holding Skipwith's "right-to- threat to public safety, the Texas Legislature sought to

leave" argument lacked merit). deter DW I Repeat Offenders from getting behind the

36 Id. wheel and again endangering the public by driving in an

37 See id. impaired state. The legislative solution to the recidivist

threat was to provide a framework that conditioned the

The majority notes that since the events of

driving privilege on consent to police officers obtaining

September 11, federal circuit courts have overruled prior

blood or breath samples from DW I Repeat Offenders who

cases that predicated the reasonableness of airport

are suspected of driving while intoxicated and to obtain

screening on irrevocable implied consent and determined

the samples in the absence of a search warrant.4 1 This

that the Fourth Amendment requires even less protection

provision of the statute is narrowly tailored, specific to

of the individual in dangerous contexts.3 8 Indeed, the

the search, and is limited in scope, effectively serving the revoke consent at that point, then the prophylactic

purpose and meeting the requirements of a warrant.4 2 purpose of the search procedure prescribed by the Texas

statute would be frustrated.4 8 Likewise, the deterrent

40 See Tex. Transp. Code Section 724.001, et effect of the statutory scheme would be thwarted as the

seq. (W est 2014). DW I Repeat Offender would be able to revoke consent

41 See Beeman v. State, 86 S.W.3d 613, 616 for the blood draw even after accepting the conditioned

(Tex. Crim. App. 2002). privilege of driving. The State of Texas is not required to

42 See New York v. Burger, 482 U.S. 691, 703, ignore either the grave public danger of drunk driving or

107 S. Ct. 2636, 2644, 96 L. Ed. 2d 601 (1987). the reality of recidivism in DW I Repeat Offenders.

Section 724.012(b)(3)(B) of Texas's implied-consent

48 See Skipwith, 482 F.2d at 1281.

law creates a compact that is akin to the compact [*47]

enforced against probationers and parolees. The majority The majority concludes that the DW I Repeat [*49]

argues that, unlike probationers and parolees, DW I Offender can revoke consent after being arrested for

Repeat Offenders do not have conditional liberty another DW I offense. According to the majority,

interests. But, driving is a privilege, not a right.43 Just as reasonableness requires the State to allow the DW I

it is reasonable to enforce the agreements of parolees and Repeat Offender's revocation. Rather than examine the

probationers that diminish their liberty interests, it is search in the context of the State's keen interest in

reasonable to enforce agreements of DW I Repeat curbing fatal recidivist activity and regulating that

Offenders to consent to blood draws on condition of activity within a recognized danger zone for the purpose

exercising driving privileges. of protecting the public from threat of death or injury, the

majority relies on cases in home-search contexts that

43 See Tex. Transp. Code Ann. § 724.035 (W est have little application to the circumstances presented by

2014). today's case.4 9

In exchange for the privilege of driving on public

49 See maj. op. at .

roads in Texas, the DW I Repeat Offender irrevocably

consents to have blood drawn in the event that the DW I In the context of drunk driving and DW I Repeat

Repeat Offender is arrested yet again for driving while Offenders, reasonableness does not dictate that revocation

intoxicated.4 4 Under this compact, the DW I Repeat of consent is always an option, as the majority concludes.

Offender faces a difficult choice:4 5 forego driving a motor It is not an option in the context of air piracy, where the

vehicle on Texas roadways or consent to a blood draw in State has an interest in thwarting and deterring activity

the event of another DW I arrest.4 6 The latter choice does that endangers the public. Is drunk driving by DWI

not include the option of revocation.4 7 It is significant that Repeat Offenders any less risky or dangerous to human

the Texas Legislature did not outright deny the driving life? Does a DWI Repeat Offender on a public roadway

privilege to DW I Repeat Offenders, but instead gave create any less of a "zone of danger" than one suspected

these individuals the option of enjoying the privilege of air piracy?

subject to the condition. Appellant's acceptance of the

Just as the need to protect the public in the airways

benefits [*48] of this conditioned privilege supports the

makes it reasonable to prevent individuals from revoking

irrevocability of his consent. Once appellant, a DW I

[*50] their consent to a search before boarding a plane,

Repeat Offender, elected the condition attached to the

the need to protect the public on roadways makes it

driving privilege by turning the key to start the vehicle's

reasonable to prevent DW I Repeat Offenders from

ignition, it was too late to revoke consent. At that point,

revoking consent to a search after being arrested for a

as a DW I Repeat Offender, appellant had accepted the

new DW I offense. Allowing a DW I Repeat Offender who

risk of a blood draw should he be arrested for driving

embarks on a public roadway to revoke consent to a

while intoxicated.

search once arrested for DW I provides the "safe exit" the

Supreme Court condemned in the air piracy context. 5 0 Just

44 See Tex. Transp. Code Ann. §§ 724.011;

as allowing revocation in the airways context would

724.012.

frustrate the federal scheme, the "safe exit" the majority

45 See McGautha v. California, 402 U.S. 183,

creates today undermines Texas's ability to prosecute

213, 91 S. Ct. 1454, 28 L. Ed. 2d 711 (1971).

DW I Repeat Offenders who choose to drive drunk again.

46 Tex. Transp. Code § 724.011.

47 See generally, id. at § 724.011, et seq.

50 See Skipwith, 482 F.2d at 1281.

If a police officer suspects a DW I Repeat Offender

The Texas Legislature has recognized the serious and

of driving while intoxicated, the officer shall arrange for

pervasive threat posed by recidivists and has taken

a statutory blood draw or the collection of a breath

focused action to address it in our state by imposing

specimen. W ere the DW I Repeat Offender entitled to

conditions on DW I Repeat Offenders who, despite their

prior DW I convictions, are granted and accept the based upon the DW I Repeat Offender's

privilege of driving on Texas roadways. Both this voluntary choice to exercise, and accept

deterrence interest and the reality of recidivism among the benefits of, a privilege (driving)

DW I Repeat Offenders are important factors in granted by the State on condition of

determining whether a search is reasonable under the consent to the search.

Fourth Amendment. 51

51 See Knights, 534 U.S. at 116, 122 S.Ct. at These limiting principles, coupled with the government's

590, Samson, 547 U.S. at 850, 126 S.Ct. at 2198; compelling interests in protecting the public from the

See Skipwith, 482 F.2d at 1277, 1281. heightened risk of death or injury from recidivist drunk

drivers, make it reasonable to prevent a DW I Repeat

In holding that the State may not rely upon the DW I

Offender arrested for drunk driving from revoking

Repeat Offender's statutory [*51] consent or enforce

consent to a statutory blood draw.5 3

section 724.012(b)(3)(B) of the implied-consent statute,

the majority does not properly account for the crucial

52 See Maryland v. King, 133 S.Ct. 1958, 1970,

public-safety interest at stake in deterring DW I Repeat

186 L.Ed.2d 1 (2013) (noting that limits of police

Offenders from drunk driving as a means of thwarting

o ffic e r's d isc re tio n w e igh in fa v o r o f

the extraordinary threat resulting from this deadly

constitutionality [*53] of search); Skinner v.

recidivist activity. These interests make it reasonable to

Railway Labor Executives' Ass'n, 489 U.S. 602,

prevent a DW I Repeat Offender from withdrawing

622-25, 109 S. Ct. 1402, 1416-17, 103 L. Ed. 2d

consent to a blood draw upon arrest for another DW I

639 (1989) (noting that imposing a warrant

offense.

requirement would add little assurance of

certainty and regularity not already afforded by

Conclusion

regulations).

Today's case presents a combination of factors, 53 See Bailey v. U.S., U.S. , 133 S.Ct. 1031,

compelling interests as well as limiting principles, that 1040, 185 L.Ed.2d 19 (2013) (noting the

make the irrevocability of consent to a blood draw under importance of limiting principles).

section 724.012(b)(3)(B) reasonable in the context of a

Notably, the First Court of Appeals has concluded

DW I Repeat Offender's arrest for a new DW I offense.

that "the warrantless taking of appellant's blood sample in

Though the state's public-safety interest is compelling,

compliance with Transportation Code section 724.012(b)

even that does not provide the government with a free

did not violate [the defendant's] Fourth Amendment rights

pass to conduct indiscriminate blood draws. There must

by requiring him to submit to a warrantless blood test

be limiting principles for the irrevocable statutory

without his consent."5 4 Though several other sister courts

consent to be reasonable and thus pass muster under the

of appeals have determined that consent under the

Fourth Amendment. The rationale for the rule of

implied-consent statute is either invalid or revocable, 5 5

irrevocability in this limited circumstance is grounded on

none of them addressed the public dangers associated

built-in statutory boundaries and restrictions that operate

with allowing revocation. None of them considered the

as a check on police power and a strong safeguard

State's strong deterrence interest or the conditional nature

against unwarranted government intrusion. [*52]

of the driving privilege granted to DW I Repeat

Summarized below, these boundaries, sewn into the

Offenders. None of them accounted for the reality of

fabric of the statute, provide the necessary measure of

recidivism among DW I Repeat Offenders. And, none of

protection that makes the irrevocability of consent under

them considered the built-in statutory checks and other

subsection (b)(3)(B) reasonable in this narrow context.

important limiting principles at work in this special

circumstance.

o The search is authorized only after

police have made a valid arrest based on

54 Perez v. State, No. S.W.3d , 2014 Tex.

probable cause of a repeat offender in

App. LEXIS 2681, 2014 WL 943126, at *7 (Tex.

the danger zone.

App.--Houston [1st Dist.] Mar. 11, 2014, no pet.).

o The statutory provision implying 55 See Weems v. State, 434 S.W.3d 655, 659-64

consent and authorizing the search (Tex. App.--San Antonio 2014 pet. granted);

effectively functions like a warrant, Reeder v. State, 428 S.W.3d 924, 929 (Tex. App.--

tightly restricting the scope of the search Texarkana 2014, pet. granted); State v. Villarreal,

by naming the single place to be searched S.W.3d , No. 13-13-00253-CR, 2014 Tex. App.

and specifically identifying the single LEXIS 645, 2014 WL 1257150, at *10 (Tex. App.-

thing to be seized. 5 2 -Corpus Christi Jan. 23, 2014, pet. granted); State

v. Sutherland, 436 S.W.3d 28, 39-41 (Tex. App.--

o The irrevocability of consent is

Amarillo 2014, pet. filed); State v. Anderson,

/s/ Kem Thompson Frost

S.W.3d , No. 09-13-00400-CR, 2014 Tex. App.

LEXIS 11151, 2014 WL 5033262, at *8-11 (Tex. Chief Justice

App.--Beaumont Oct. 8, 2014, no pet. h.).

Panel consists of Chief Justice Frost, Justices

This court should affirm rather than reverse the trial Donovan and Brown. (Brown, J., majority).

[*54] court's judgment denying appellant's motion to

Publish--T EX . R. A PP . P. 47.2(b)

suppress the evidence obtained as a result of the blood

draw. Because it does not, I respectfully dissent.

APPENDIX B

1 of 5 DOCUMENTS

JONATHAN ALBERT LEAL, Appellant v. THE STATE OF TEXAS, Appellee

NO. 14-13-00208-CR

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

2015 Tex. App. LEXIS 6460

June 25, 2015, M ajority and Concurring Opinions on Remand Filed

NOTICE: Publish -- TEX. R. APP. P. 47.2(b). arguments, we do not address them again here. See

Keehn v. State, 245 S.W.3d 614, 614 n.1 (Tex. App.--Fort

PRIO R HISTORY: [*1] On Appeal from the 122nd Worth 2007), aff'd, 279 S.W.3d 330 (Tex. Crim. App.

District Court, Galveston County, Texas. Trial Court 2009); see, e.g., Weatherford v. State, 840 S.W.2d 727,

Cause No. 12CR0947. 728-29 (Tex. App.--Eastland 1992, pet. ref'd)

Leal v. State, 452 S.W.3d 14, 2014 Tex. App. LEXIS (considering on remand only the issues explicitly raised

12286 (Tex. App. Houston 14th Dist., 2014) by Court of Criminal Appeals). W e therefore incorporate

our original opinion by reference.

In order [*2] for a complaint to be presented on

C O U N SEL: For Appellant: M ark W. Stevens,

appeal, a timely request, objection, or motion must have

GALVESTON, TX.

been made to the trial court stating the grounds for the

ruling with sufficient specificity to make the trial court

For State: Allison Lindblade, GALVESTON, TX.

aware of the complaint, and the trial court must have

expressly or implicitly ruled on the request, objection, or

JUDGES: Panel consists of Chief Justice Frost and

motion. Tex. R. App. P. 33.1(a)(1)(A). The complaining

Justices Donovan and Brown. (Frost, C.J., concurring).

party must have clearly conveyed to the trial court the

particular complaint raised on appeal, including the

OPINION BY: Marc W . Brown

precise and proper application of law as well as the

underlying rationale. Pena v. State, 285 S.W.3d 459, 463-

OPINION

64 (Tex. Crim. App. 2009). Error preservation does not

involve a hyper-technical or formalistic use of words or

M AJORITY OPINION ON REM AND

phrases; rather, straightforward communication in plain

Appellant Jonathan Albert Leal appealed the trial English is sufficient. Id. at 464. The party must let the

court's denial of his motion to suppress and motion for trial judge know (1) what he wants; (2) why he thinks he

new trial. In our original opinion reversing the trial is entitled to it; and (3) do so clearly enough for the judge

court's judgment, we held that the warrantless blood draw to understand him at a time when the judge is in the

violated Leal's Fourth Amendment rights. Leal v. State, proper position to do something about it. Id. W e consider

452 S.W.3d 14, 32 (Tex. App.--Houston [14th Dist.] the context in which the complaint was made and the

2014), vacated and remanded, 456 S.W.3d 567 (Tex. parties' shared understanding at that time. Id. A

Crim. App. 2015). On its own motion, the Court of defendant who presents an argument to the trial judge in

Criminal Appeals granted review of our decision, time for the judge to rule on it has preserved the issue for

vacated our judgment, and remanded the case to us to appellate review. See Clarke v. State, 270 S.W.3d 573,

address only "whether appellant preserved his claim that 580 (Tex. Crim. App. 2008). [*3] "A trial court's ruling

the warrantless blood draw violated his Fourth on a matter need not be expressly stated if its actions or

Amendment rights." Leal, 456 S.W.3d at 568. Although other statements otherwise unquestionably indicate a

we implicitly held in our original opinion that Leal ruling." Rey v. State, 897 S.W.2d 333, 336 (Tex. Crim.

preserved his claim, we now explicitly conclude and App. 1995).

explain that he did so.

Leal's claim was preserved when the trial court

As a preliminary matter, because our original implicitly overruled his amended motion to suppress.

opinion disposed of the merits of Leal's primary Leal timely filed an amended motion to suppress

objecting to the warrantless blood draw on Fourth filed. See Tex. R. App. P. 21.4(b). On April 26, 2013, at

Amendment grounds. See Porath v. State, 148 S.W.3d the new-trial hearing, Leal asked for and was given leave

402, 409 (Tex. App.--Houston [14th Dist.] 2004, no pet.) to supplement his original motion for new trial. The State

(motion to suppress is a specialized objection to the did not object. See State v. Moore, 225 S.W.3d 556, 569

admission of evidence). Specifically, citing Missouri v. (Tex. Crim. App. 2007) (trial court retains authority to

McNeely, U.S. , 133 S. Ct. 1552, 185 L. Ed. 2d 696 allow untimely amendment to original motion for new

(2013), which had not yet been decided, Leal claimed trial within seventy-five-day period, so long as the State

that the repeat-offender provision of the implied-consent does not object). At the hearing, Leal's counsel argued,

statute violated the Fourth Amendment. The record based on the Supreme Court's holding in McNeely, that

shows that the trial court was aware of Leal's objection; the warrantless blood draw violated Leal's Fourth

however, the trial court did not explicitly rule on the Amendment rights. The State presented counter-

amended motion at the suppression hearing. Leal arguments on the merits of Leal's claim, demonstrating

renewed his objection at trial when the State offered a the p a rties' shared unde rsta nd ing tha t L e a l's

report containing an analysis of Leal's blood.1 The trial constitutional rights were at stake. See Pena, 285 S.W.3d

court then admitted the report and allowed the analyst to at 464. The trial court denied Leal's motion for new trial

testify regarding Leal's blood alcohol content. Based on in an order dated May 21, 2013.

the trial court's action in allowing the State to present

In sum, Leal timely presented his complaint to the

evidence of Leal's blood alcohol content to the jury, the

trial court in both his amended motion to suppress and

court implicitly overruled Leal's amended motion to

his supplemental motion for new trial. See Pena v. State,

suppress, and Leal preserved his claim that the

353 S.W.3d 797, 807 (Tex. Crim. App. 2011) (complaint

warrantless [*4] blood draw violated his Fourth

is timely if made as soon as ground of objection becomes

Amendment rights. See Rey, 897 S.W.2d at 336-37; see,

[*6] apparent). Leal's complaint was adequately specific

e.g., Cantu v. State, 994 S.W.2d 721, 730-31 (Tex. App.--

to put the trial court on notice of his Fourth Amendment

Austin 1999, pet. dism'd) (error was preserved when trial

challenge to the warrantless blood draw. See, e.g.,

court did not expressly rule on defendant's objection to

Gillenwaters v. State, 205 S.W.3d 534, 537 (Tex. Crim.

expert witness's qualifications, but permitted expert to

App. 2006) (although motion for new trial did not

answer the question if he knew); Riddle v. State, No. 02-

mention "vague" or "vagueness," defendant's complaint

02-00231-CR, 2003 Tex. App. LEXIS 7154, 2003 WL

was adequately specific when he claimed on several

21983252, at *3 (Tex. App.--Fort W orth Aug. 21, 2003,

o c c a sio ns d uring tria l th a t the sta tu te w as

pet. ref'd) (mem. op.; not designated for publication)

"unconstitutionally vague"). The trial court ruled on

(error was preserved when trial court did not expressly

Leal's complaint when it admitted, over objection,

rule on portion of defendant's motion to suppress dealing

evidence obtained as a result of the warrantless blood

with inventory search, but allowed officer to testify

draw and denied Leal's supplemental motion for new

before the jury about the inventory search).

trial. See Tex. R. App. P. 33.1; Rey, 897 S.W.2d at 336.

W e therefore conclude that Leal preserved his claim that

1 W hen the State offered the report, Leal's

the warrantless blood draw violated his Fourth

counsel stated, "Subject to all prior objections, no

Amendment rights. Accordingly, we reverse the trial

specific objection at this time." Leal's "prior

court's judgment and remand to the trial court for a new

objections" included his amended motion to

trial consistent with our original opinion. See Leal, 452

suppress. See Porath, 148 S.W.3d at 409; cf.

S.W.3d at 32.

Bhola v. State, No. 14-09-00154-CR, 2010 Tex.

App. LEXIS 4681, 2010 WL 2501116, at *4 (Tex. /s/ Marc W . Brown

App.--Houston [14th Dist.] June 22, 2010, no

Justice

pet.) (mem. op.; not designated for publication)

(concluding defendant did not abandon his Panel consists of Chief Justice Frost and Justices

motion to suppress when he stated at trial, Donovan and Brown. (Frost, C.J., concurring)

"Subject to the previous objections, no

objections.") Publish -- T EX . R. A PP . P. 47.2(b).

Furthermore, Leal presented his claim to the trial CONCUR BY: Kem Thompson Frost

court in his supplemental motion for new trial. Leal was

sentenced on February 14, 2013. He timely filed a CONCUR

motion for new trial on March 8, 2013. See Tex. R. App.

P. 21.4(a). The original motion did not challenge the CONCURRING OPINION ON REM AND

legality of the warrantless blood [*5] draw. The

Supreme Court decided McNeely on April 17, 2013. On Appellant moved to suppress evidence of his blood-

April 22, 2013, Leal filed a supplemental motion for new alcohol concentration by challenging the legality of a

trial citing McNeely and claiming that the warrantless traffic stop that eventually led to his arrest for driving

blood draw violated his Fourth Amendment rights. Under while intoxicated (DW I). Appellant [*7] later amended

rule 21.4(b), the supplemental motion was not timely his motion to suppress to challenge the warrantless blood

draw on Fourth Amendment grounds. On original

submission and over my dissent, this court reversed identified in the amended motion is appellant's assertion

appellant's DW I conviction and remanded for a new that the warrantless blood draw was taken pursuant to a

trial.1 Addressing an issue of first impression in this Texas statute that, as applied, violated the Fourth

court, the majority concluded that the trial court should Amendment.6 The Court of Criminal Appeals recognized

have suppressed evidence of appellant's blood-alcohol that appellant's amended motion contains a challenge to

content because law enforcement officers obtained the the warrantless blood draw on Fourth Amendment

evidence by means of a warrantless blood draw, which grounds.7 By including this ground in his amended

violated appellant's Fourth Amendment right to be free motion to suppress, appellant identified his Fourth

from unreasonable searches and seizures.2 Amendment complaint with sufficient specificity to

preserve error on the claim.8

1 See Leal v. State, 452 S.W.3d 14, 32 (Tex.

App.--Houston [14th Dist.] 2014), vacated, 456 6 Appellant's amended motion states:

S.W.3d 567 (Tex. Crim. App. 2015).

2 Id.

Challenge to Mandatory Blood

On its own motion, the Court of Criminal Appeals

Draw The State is apparently

granted review of this court's decision, vacated the

relying on a blood [*9] draw

judgment, and remanded with instructions for this court

taken without a warrant under

to address whether appellant preserved error on his claim

Texas Transportation Code Sec.

that the warrantless blood draw violated his Fourth

724.011, as amended in 2009. The

Amendment rights.3 On remand, the majority concludes

Amendment purports to provide

that appellant preserved error, that the trial court's

that a mandatory blood draw may

judgment should be reversed, and that the case should be

be taken where an officer has

remanded for a new trial. I agree, but for different

credible evidenc e tha t an

reasons.

individual has been previously

convicted twice of DW I.

3 Leal v. State, 456 S.W.3d 567, 568 (Tex. Crim.

App. 2015). The subject amendment to

Sec. 724.011 is unconstitutional on

Preservation-of-Error Analysis its face and as applied, as a

violation of the U.S. Constitution,

Appellant preserved error by making a timely,

A m d . V II I , w h ic h p reve nts

specific complaint in the trial court and securing an

unreasonable searches and

adverse ruling.4 [*8] Specifically, appellant moved the

seizures.

trial court to suppress evidence of his blood-alcohol

content, identifying grounds for this relief in a written

motion to suppress. Before the suppression hearing,

Appellant's curious reference to the Eighth

appellant amended the motion to include additional

Amendment does not impact the preservation-of-

grounds for relief. Though the parties' arguments at the

error analysis because it is apparent from the

hearing focused on another ground in the motion, to

context that appellant meant the Fourth

preserve error a movant need not discuss all the grounds

Amendment. Although appellant stated that

at the hearing.5 All that is required is specificity,

Section 724.011 violated the Eighth Amendment,

timeliness, and an adverse ruling. The record es

This text is long and has been trimmed here. Open the source document for the complete record.