Petition for Writ of Certiorari — Sean Michael McGuire, Petitioner v. Texas

No. 24In the

Supreme Court of the United States

SEAN MICHAEL MCGUIRE,

Petitioner,

v.

THE STATE OF TEXAS,

Respondent.

On Petition for a Writ of Certiorari to the

Texas Court of Criminal A ppeals

PETITION FOR A WRIT OF CERTIORARI

Josh Barrett Schaffer

Counsel of Record

1021 Main, Suite 1440

Houston, TX 77002

(713) 951-9555

josh@joshschafferlaw.com

Counsel for Petitioner

117041

A

(800) 274-3321 • (800) 359-6859

i

QUESTION PRESENTED

A police officer may arrest without a warrant for a

misdemeanor or felony committed in his presence and for a

felony not committed in his presence if there was probable

cause for the arrest. United States v. Watson, 423 U.S.

411, 423-24 (1976). This case asks whether an officer may

arrest for a felony not committed in his presence if the

probable cause was only for a misdemeanor.

This case involves a fatal car accident allegedly caused

by petitioner’s driving while intoxicated. A jury convicted

him of felony-murder and failure to stop and render aid

and assessed prison sentences in 2014. A Texas appellate

court reversed the felony-murder conviction because the

warrantless seizure of his blood was unconstitutional.

This Court denied the State’s request to review that

decision.

On remand, the trial court granted petitioner’s

motion to suppress other evidence seized as a result of his

warrantless arrest. The Texas Court of Criminal Appeals

(TCCA) reversed and held that exigent circumstances

authorized the arrest. It dodged the question on which it

initially granted review: whether exigent circumstances

must exist before the police may make a warrantless felony

arrest of a person found in a suspicious place.

The question presented is:

Does the Fourth Amendment permit a police

officer to make a warrantless arrest for a felony

not committed in his presence where probable

cause only exists to arrest for a misdemeanor?

ii

RELATED CASES

• State of Texas v. McGuire, Nos. 10-DCR-055898 & 11DCR-057073, 268th District Court of Texas. Judgments

and Convictions entered March 19, 2014.

• McGuire v. State of Texas, 493 S.W.3d 177, Nos. 01-1400240-CR, 01-14-00241-CR & 01-14-01023-CR, Court of

Appeals for the First District of Texas. Opinion entered

May 10, 2016.

• McGuire v. State of Texas, Nos. PD-0626-16 & PD0948-16, Texas Court of Criminal Appeals. Orders

refusing discretionary review entered October 12, 2016,

and November 2, 2016.

• State of Texas v. McGuire, No. 581 U.S. 1006, No.

16-919, United States Supreme Court. Order denying

petition for a writ of certiorari entered May 30, 2017.

• State of Texas v. McGuire, No. 10-DCR-055898, 268th

District Court of Texas. Order suppressing evidence

entered February 23, 2018.

• McGuire v. State of Texas, 586 S.W.3d 451, No. 01-1800146-CR, Court of Appeals for the First District of

Texas. Opinion entered August 29, 2019.

• McGuire v. State of Texas, 689 S.W.3d 596, No. PD0984-19, Texas Court of Criminal Appeals. Opinion

entered February 21, 2024.

• McGuire v. State of Texas, No. PD-0984-19, Texas

Court of Criminal Appeals. Order denying rehearing

entered June 19, 2024

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . i

RELATED CASES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . iii

TABLE OF APPENDICES . . . . . . . . . . . . . . . . . . . . . . . v

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . . vi

PETITION FOR A WRIT OF CERTIORARI . . . . . . . 1

OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

CONSTITUTIONAL PROVISIONS . . . . . . . . . . . . . . . 1

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

A. Procedural History . . . . . . . . . . . . . . . . . . . . . . . . 2

B. Factual Statement . . . . . . . . . . . . . . . . . . . . . . . . . 3

REASON FOR GRANTING CERTIORARI . . . . . . . . 5

iv

Table of Contents

Page

WHETHER THE FOURTH

A MENDMENT PERMITS A

P OL IC E OF F IC ER T O M A K E A

WA RR A NTLES S A RREST FOR A

FELONY NOT COMMITTED IN HIS

PRESENCE W HERE PROBA BLE

CAUSE ONLY EXISTS TO ARREST

FOR A MISDEMEANOR . . . . . . . . . . . . . . . . . . 5

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

v

TABLE OF APPENDICES

Page

A PPENDI X A — DENI A L OF MOTION

FOR REHEARING OF THE COURT OF

CRIMINAL APPEALS OF TEXAS, DATED

JUNE 19, 2024 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1a

APPENDIX B — OPINION OF THE COURT OF

CRIMINAL APPEALS OF TEXAS, DATED

FEBRUARY 21, 2024 . . . . . . . . . . . . . . . . . . . . . . . . . 2a

APPENDIX C — CONCURRING OPINION OF

THE COURT OF CRIMINAL APPEALS OF

TEXAS, DATED FEBRUARY 21, 2024 . . . . . . . . 25a

APPENDIX D — OPINION OF THE COURT OF

APPEALS OF TEXAS, FIRST DISTRICT,

HOUSTON, DATED AUGUST 29, 2019 . . . . . . . . . 29a

APPENDIX E — DISSENTING OPINION OF

THE COURT OF APPEALS OF TEXAS,

FIRST DISTRICT, HOUSTON, DATED

AUGUST 29, 2019 . . . . . . . . . . . . . . . . . . . . . . . . . . . 52a

vi

TABLE OF CITED AUTHORITIES

Page

CASES

Atwater v. City of Lago Vista,

532 U.S. 318 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Carroll v. United States,

267 U.S. 132 (1925) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Devenpeck v. Alford,

543 U.S. 146 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

District of Columbia v. Wesby,

583 U.S. 48 (2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Lange v. California,

141 S. Ct. 2011 (2021) . . . . . . . . . . . . . . . . . . . . . . . . 7, 9

Maryland v. Pringle,

540 U.S. 366 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

McGuire v. State of Texas,

493 S.W.3d 177 (Tex. App.—Houston [1st Dist.]

2016, pet. ref’d), cert. denied, 581 U.S. 1006 (2017) . . 2

McGuire v. State,

586 S.W.3d 451 (Tex. App.—Houston [1st Dist.]

2019, pet. granted) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

McGuire v. State,

689 S.W.3d 596 (Tex. Crim. App. 2024) . . . . . . . 3, 5, 6

vii

Cited Authorities

Page

Michigan v. DeFillippo,

443 U.S. 31 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

United States v. Watson,

423 U.S. 411 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Virginia v. Moore,

553 U.S. 164 (2008)

cert. denied, 581 U.S. 1006 (2017) . . . . . . . . . . . . . . . . 8

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. IV . . . . . . . . . . . . . . . . . . . . . . . 1, 7, 10

STATUTES, RULES AND OTHER AUTHORITIES

28 U.S.C. §1257(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Tex. Crim. Proc. Code Art. 14.03(a)(1) . . . . . . . . . . . . 3, 5

Tex. Trans. Code §550.021(a)(1) . . . . . . . . . . . . . . . . . . . . 7

Sup. Ct. R. 10(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

1 Matthew Hale, Pleas of the Crown *587–90 (1736) . . . 8

2 Matthew Hale, Pleas of the Crown *86–90 (1736) . . . . 8

4 William Blackstone, Commentaries *288–92 (1772) . 8

1

PETITION FOR A WRIT OF CERTIORARI

Petitioner, Sean Michael McGuire, respectfully

petitions for a writ of certiorari to review the judgment

of the TCCA.

OPINIONS BELOW

The TCCA’s order denying rehearing (App. 1) is

unreported. The TCCA’s plurality opinion reversing

the judgment of the Texas Court of Appeals (App. 2-24)

and concurring opinion (App. 25-28) are reported at

689 S.W.3d 596. The Texas Court of Appeals’ majority

opinion affirming the trial court’s order suppressing

evidence (App. 29-51) and dissenting opinion (App. 52-72)

are reported at 586 S.W.3d 451. The state trial court’s

order granting petitioner’s motion to suppress evidence

is unreported.

JURISDICTION

The TCCA reversed the Texas Court of Appeals’

judgment on February 21, 2024, and denied rehearing

on June 19, 2024. This Court has jurisdiction under 28

U.S.C. §1257(a).

CONSTITUTIONAL PROVISIONS

The Fourth A mendment to the United States

Constitution provides, in pertinent part, “The right of

the people to be secure in their persons, houses, papers,

and effects, against unreasonable searches and seizures,

shall not be violated. . . .”

2

STATEMENT OF THE CASE

A. Procedural History

Petitioner was charged with felony-murder and failing

to stop and render aid (FSRA) in Texas in 2010. He pled

not guilty. A jury convicted him of both offenses and

assessed prison sentences in 2014.

The First Court of Appeals of Texas reversed the

felony-murder conviction in a published opinion in 2016

because the State obtained petitioner’s blood-alcohol

evidence without a search warrant and in violation of the

Fourth Amendment. It affirmed the FSRA conviction, and

he served that sentence. The TCCA refused the State’s

petition for discretionary review, and this Court denied

the State’s petition for a writ of certiorari. McGuire v.

State of Texas, 493 S.W.3d 177 (Tex. App.—Houston [1st

Dist.] 2016, pet. ref’d), cert. denied, 581 U.S. 1006 (2017).

After the appellate courts decided that the bloodalcohol evidence was inadmissible, on remand petitioner

moved to suppress other evidence seized as a result of

his warrantless arrest. The trial court granted that

request on February 23, 2018, and suppressed evidence

of photographs, video recordings, and audio recordings

of petitioner; post-arrest statements that he made to

police; and other tangible evidence seized as a result of

his warrantless arrest. The State appealed, which stayed

a retrial.

3

The First Court of Appeals of Texas affirmed the

trial court’s order suppressing evidence in a published

opinion in 2019. McGuire v. State, 586 S.W.3d 451 (Tex.

App.—Houston [1st Dist.] 2019, pet. granted) (App. 29-51).

One justice dissented (App. 52-72). The TCCA granted

the State’s petition for discretionary review to resolve

two grounds: (1) whether article 14.03(a)(1) of the Texas

Code of Criminal Procedure has an exigency requirement

for warrantless arrests; and (2) if there is an exigency

requirement, whether the State met that burden in this

case.

The TCCA reversed the judgment of the court of

appeals and the trial court’s order suppressing the evidence

in a published plurality opinion issued on February 21,

2024. McGuire v. State, 689 S.W.3d 596 (Tex. Crim. App.

2024) (App. 2-24). Four judges joined the plurality opinion,

and four judges joined a concurring opinion (App. 25-28). A

ninth judge concurred in the judgment without joining or

issuing an opinion. Although all nine judges of the TCCA

agreed to reverse the judgment of the court of appeals,

they divided 4-4-1 on the rationale for that decision. The

TCCA denied rehearing on June 19, 2024 (App. 1).

B. Factual Statement

A car accident occurred late at night on August 1,

2010. Petitioner stopped at a nearby gas station and called

two police officers whom he knew to report that he hit

someone or something, but he did not see anything when

he looked. One of the officers notified dispatch, and two

troopers responded to the call.

4

Trooper Devon Wiles testified at a pre-trial hearing

in 2012 and at trial in 2014. He did not have a warrant to

arrest petitioner, and petitioner could not leave after police

placed him in a patrol car. Wiles did not see petitioner

commit an offense. Petitioner smelled of alcohol, his eyes

were red and glassy, and he showed signs of intoxication.

But Wiles never saw him drink alcohol; there were no open

alcoholic drinks; and petitioner had not lost the normal

use of his mental or physical faculties. The place where

he found petitioner was not suspicious, and petitioner did

not act suspiciously. There was no evidence of any bad

driving facts, and petitioner was coherent and responded

appropriately.

Trooper Alton Tomlin also testified at the pre-trial

hearing and at trial. Tomlin saw a piece of metal from

the deceased’s motorcycle wrapped around the front

of petitioner’s truck. Petitioner was detained within a

few minutes after policed arrived. Tomlin did not have

an arrest warrant. At the time of arrest, there was no

evidence regarding who caused the collision. Tomlin did

not see petitioner commit a crime in his presence. Nor

did Tomlin have evidence of an offense before arresting

petitioner. The place where he found petitioner was not

suspicious.

Concluding that petitioner was driving while

intoxicated at the time of the collision that resulted in the

other driver’s death, police arrested him without a warrant

on two felony offenses—suspicion of causing death as a

result of operating a motor vehicle while intoxicated and

5

FSRA. They arrested him at the scene by placing him in

handcuffs and reading the Miranda warnings.

REASON FOR GRANTING CERTIORARI

W HETHER THE FOURTH A MEN DMEN T

PERMITS A POLICE OFFICER TO MAKE A

WARRANTLESS ARREST FOR A FELONY

NOT COMMITTED IN HIS PRESENCE WHERE

PROBABLE CAUSE ONLY EXISTS TO ARREST

FOR A MISDEMEANOR.

Texas statutory law allows a police officer to arrest

a person without a warrant if (1) the person is found

in a suspicious place and (2) under circumstances that

reasonably show that the person is guilty of a felony,

disorderly conduct, breach of the peace, public intoxication,

or is about to commit an offense. Tex. Crim. Proc. Code

Art. 14.03(a)(1). To limit abuse of this authority, Texas

courts construe this statute “parallel to the requirements

of the Fourth Amendment on the federal side.” McGuire

v. State, 689 S.W.3d 596, 602 (Tex. Crim. App. 2024)

(App. 13). This standard is satisfied if (1) the suspect was

arrested at a crime scene or somewhere linked to it, (2)

shortly after a crime occurred, and (3) the totality of the

facts known to the police objectively point to the suspect’s

guilt of a felony or other breach of the peace under the

statute. Id. at 603 (App. 14).

Petitioner was involved in a car accident late at night

and pulled into a gas station located 0.1 miles from the

scene of the accident. He immediately called two police

6

officers whom he knew to report that he had just hit

someone or something but could not see who or what when

he looked. One of those officers notified police dispatch,

which sent two troopers to the scene to investigate.

Petitioner showed signs of intoxication at the gas station.

Police smelled an odor of alcohol coming from him, and his

eyes were red and glassy. However, they did not have any

evidence at that time to establish an objectively reasonable

belief that he caused the accident or the other person’s

death, or that he had committed any felony. He did not

commit a crime in their presence, nor did they have reason

to believe that he was about to commit a crime.

The police concluded that petitioner was driving while

intoxicated at the time of the collision that resulted in the

other driver’s death. Within a few minutes of arriving at

the scene, they arrested him for two felony offenses—

suspicion of causing death as a result of operating a motor

vehicle while intoxicated and failing to stop and render aid

(FSRA). They did not have an arrest warrant.

The TCCA concluded that the police had probable

cause to believe that petitioner had committed “intoxication

manslaughter if not felony murder” and that he failed

to stop and render aid in a motor collision resulting in

serious injury. 689 S.W.3d at 604 (App. 17). Probable

cause arguably would have existed to arrest him for the

misdemeanor offense of driving while intoxicated based

on their observations of him at the scene and his admission

that he was operating a motor vehicle in a public road. But

they could not have arrested him for that misdemeanor

7

offense because he did not commit it in their presence. And

without having investigated the accident, who caused it,

or what caused the other driver’s death, the police did not

have probable cause to arrest him for the felony offense

of causing the death while in the course of driving while

intoxicated. Nor did they have probable cause to arrest him

for FSRA where he stopped at a nearby safe location—a

gas station located 0.1 miles from the scene; immediately

called police officers to report what happened; and waited

at that location for them to arrive.1

The Fourth Amendment prohibits unreasonable

searches and seizures. U.S. Const. amend. IV. Seizures

include warrantless arrests. And warrantless arrests are

“reasonable under the Fourth Amendment where there

is probable cause,” which “depends upon the reasonable

conclusion to be drawn from the facts known to the

arresting officer at the time of the arrest.” Devenpeck v.

Alford, 543 U.S. 146, 152 (2004). The question is whether,

under the totality of the circumstances, “a reasonable

officer could conclude . . . that there was a substantial

chance of criminal activity.” District of Columbia v.

Wesby, 583 U.S. 48, 61 (2018).

The Fourth Amendment “must provide at a minimum

the degree of protection it afforded when it was adopted.”

Lange v. California, 141 S. Ct. 2011, 2022 (2021) (quotation

1. Texas law permits the operator of a motor vehicle who is

involved in an accident that results in the injury or death of another

person to stop his vehicle “as close to the scene as possible.” Tex.

Trans. Code §550.021(a)(1).

8

marks omitted). This Court “look[s] to the statutes and

common law of the founding era to determine the norms

that the Fourth Amendment was meant to preserve.”

Virginia v. Moore, 553 U.S. 164, 168 (2008). If “history

has not provided a conclusive answer” to this question, this

Court turns to “traditional standards of reasonableness”

and analyzes probable cause by balancing the private and

public interests at play. Id. at 171.

The common law tends to suggest that police officers

may conduct warrantless arrests for felonies committed

outside of their presence, but not for misdemeanors. See,

e.g., 1 Matthew Hale, Pleas of the Crown *587–90 (1736);

2 Matthew Hale, Pleas of the Crown *86–90 (1736); 4

William Blackstone, Commentaries *288–92 (1772). Since

then, Fourth Amendment jurisprudence has wrestled

with the contours of a common law dichotomy between

felony and misdemeanor warrantless arrests, specifically

in delineating when and to what extent a crime must

be committed within an officer’s presence to establish

probable cause.

A line of Supreme Court cases dating back a century

describes the “usual” common law rule as establishing

that “a police officer may arrest without warrant one

believed by the officer upon reasonable cause to have been

guilty of a felony, and that he may only arrest without a

warrant one guilty of a misdemeanor if committed in his

presence.” Carroll v. United States, 267 U.S. 132, 156-57

(1925). In a seminal decision 50 years later, the Court

9

clarified that a police officer may “arrest without a warrant

for a misdemeanor or felony committed in his presence as

well as for a felony not committed in his presence if there

was reasonable ground [probable cause] for making the

arrest.” United States v. Watson, 423 U.S. 411, 423-24

(1976).

But since then, constitutional jurisprudence has

retreated from this restrictive reading. This Court

has declined to explicitly decide whether the Fourth

Amendment demands an in-the-presence requirement

for warrantless misdemeanor arrests. See Atwater v. City

of Lago Vista, 532 U.S. 318, 340 n.11 (2001); Maryland

v. Pringle, 540 U.S. 366, 370 (2003) (“A warrantless

arrest of an individual in a public place for a felony, or

a misdemeanor committed in the officer’s presence, is

consistent with the Fourth Amendment if the arrest is

supported by probable cause.”).

The “ultimate touchstone of the Fourth Amendment

is reasonableness.” Lange, 141 S. Ct. at 2017 (quotation

marks omitted). This Court has long explained that the

reasonableness of an arrest turns on probable cause,

which involves a totality-of-the-circumstances inquiry that

favors fluidity rather than categorical buckets. See Wesby,

583 U.S. at 56-57; Michigan v. DeFillippo, 443 U.S. 31, 37

(1979) (“‘probable cause’ to justify an arrest means facts

and circumstances within the officer’s knowledge that are

sufficient to warrant a prudent person . . . in believing, in

the circumstances shown, that the suspect has committed,

10

is committing, or is about to commit an offense.”). As it

stands, the Court’s probable cause doctrine provides the

favored avenue to challenge the constitutionality of any

arrest.

But the Court has not decided whether the Fourth

Amendment permits a police officer to make a warrantless

arrest for a felony not committed in his presence where

probable cause only exists that the person committed a

misdemeanor. The Court should resolve that question

now. Unless it does so, a police officer can circumvent the

longstanding rule that requires probable cause to make a

warrantless arrest for a felony, where probable cause only

exists for a misdemeanor but the officer cannot lawfully

make a warrantless arrest because the misdemeanor was

not committed in his presence. The TCCA’s decision in this

case permits such a misapplication of Fourth Amendment

jurisprudence.

This Court should grant certiorari because the TCCA

has decided an important question of federal law that

has not been, but should be, settled by this Court, or

has decided an important federal question in a way that

conflicts with relevant decisions of this Court. Sup. Ct. R.

10(c). The Court should grant review and order briefing

and arguments on this important constitutional question.

11

CONCLUSION

The Court should grant the petition for a writ of

certiorari.

Respectfully submitted,

Josh Barrett Schaffer

Counsel of Record

1021 Main, Suite 1440

Houston, TX 77002

(713) 951-9555

josh@joshschafferlaw.com

Counsel for Petitioner

September 2024

APPENDIX

i

TABLE OF APPENDICES

Page

A PPENDI X A — DENI A L OF MOTION

FOR REHEARING OF THE COURT OF

CRIMINAL APPEALS OF TEXAS, DATED

JUNE 19, 2024 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1a

APPENDIX B — OPINION OF THE COURT OF

CRIMINAL APPEALS OF TEXAS, DATED

FEBRUARY 21, 2024 . . . . . . . . . . . . . . . . . . . . . . . . . 2a

APPENDIX C — CONCURRING OPINION OF

THE COURT OF CRIMINAL APPEALS OF

TEXAS, DATED FEBRUARY 21, 2024 . . . . . . . . 25a

APPENDIX D — OPINION OF THE COURT OF

APPEALS OF TEXAS, FIRST DISTRICT,

HOUSTON, DATED AUGUST 29, 2019 . . . . . . . . . 29a

APPENDIX E — DISSENTING OPINION OF

THE COURT OF APPEALS OF TEXAS,

FIRST DISTRICT, HOUSTON, DATED

AUGUST 29, 2019 . . . . . . . . . . . . . . . . . . . . . . . . . . . 52a

1a

APPENDIX A — Appendix

DENIAL A

OF MOTION FOR

REHEARING OF THE COURT OF CRIMINAL

APPEALS OF TEXAS, DATED JUNE 19, 2024

OFFICIAL NOTICE FROM

COURT OF CRIMINAL APPEALS OF TEXAS

P.O. BOX 12308,

CAPITOL STATION,

AUSTIN, TEXAS 78711

June 19, 2024

COA No. 01-18-00146-CR

MCGUIRE, SEAN MICHAEL

Tr. Ct. No. 10-DCR-055898

PD-0984-19

On this day, the Appellee’s motion for rehearing has been

denied.

Deana Williamson, Clerk

JOSH BARRETT SCHAFFER

JOSH SCHAFFER, PLLC

1021 MAIN ST., SUITE 1440

HOUSTON, TX 77002

* DELIVERED VIA E-MAIL *

2a

APPENDIX B —Appendix

OPINIONBOF THE COURT

OF CRIMINAL APPEALS OF TEXAS,

DATED FEBRUARY 21, 2024

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. PD-0984-19

SEAN MICHAEL MCGUIRE,

Appellee,

v.

THE STATE OF TEXAS,

Appellant.

ON STATE’S PETITION FOR DISCRETIONARY

REVIEW FROM THE FIRST COURT OF APPEALS

FORT BEND COUNTY

R ichardson, J., announced the judgment of the

Court and filed an opinion in which Hervey, Newell, and

Walker, JJ., joined. K eel, J., filed a concurring opinion

in which K eller, P.J., Yeary, and Slaughter, JJ., joined.

McClure, J., concurred.

February 21, 2024, Delivered;

February 21, 2024, Filed

3a

Appendix B

OPINION

Can a peace officer legally arrest a suspect, without

a warrant, for killing another person while driving

intoxicated, even though the accident did not occur in

the officer’s presence? Yes. The Texas Code of Criminal

Procedure 14.03(a)(1) has been interpreted to allow any

peace officer to arrest a person found in a “suspicious

place” and the circumstances of the case reasonably

show that the person is guilty of a felony or breach of the

peace. We find that the arrest met the requirements of

this statute, and that the officer formed probable cause

to believe that both a felony and breach of the peace had

occurred. Accordingly, we reverse the court of appeals

and the trial court’s suppression of Appellee’s arrest and

all evidence arising from it and remand the case to the

trial court for further proceedings.

PROCEDURAL HISTORY

This case has travelled a long and convoluted journey

to reach this Court for the third time. Prior to our Court

granting review, this case has been before both Houston

courts of appeals on four separate occasions, petitions

for discretionary review were filed and denied twice at

our Court, and the State’s petition for writ of certiorari

was subsequently denied at the United States Supreme

Court. Appellee was tried and convicted on two separate

charges by a jury. The conviction for felony murder was

reversed by the First Court of Appeals and remanded for

a new trial. The conviction for failure to stop and render

aid was affirmed by the First Court of Appeals and is not

4a

Appendix B

before this Court. This case has also been presided over

by seven successive trial judges. The original judge on the

case became ill prior to trial and another was recused in

a contested motion to recuse. There was no live testimony

presented on the current issue before this Court; the trial

judge simply relied on the records and testimonies taken

during prior pretrial proceedings and the jury trial. As

a result, the transcripts of this proceeding had to be

supplemented. The latest ruling now before this Court was

made by Judge Brady Elliott who is no longer the judge

of the 268th District Court. On remand, consequently, an

eighth judge will continue with this case.

FACTS

On the date alleged in the indictment, at approximately

12:35 am, Appellee Sean Michael McGuire, with his wife

as a passenger, drove his truck into a motorcycle driven by

David Stidman causing Stidman’s death.1 McGuire made a

U-turn and drove to a nearby Shell gas station a tenth of a

mile from the accident scene. There, he called his mother

and two law enforcement friends. 2 Police investigating the

collision were also informed that McGuire was waiting at

the gas station. One of the officers, Trooper Tomlin, who

1. Trooper Filmore testified that reports of the collision were

received by around 12:40 am. The accident, he estimated, may

have actually occurred up to five minutes prior to the report to the

police—making the collision time roughly 12:35 am. Trial Tr. 74-75.

2. Other than passing information onward, the two law

enforcement friends were not involved in the investigation. One friend

was a deputy chief and the other was a narcotic officer.

5a

Appendix B

responded to the collision scene went to the gas station

to investigate. There, he encountered McGuire and his

wife. He also encountered McGuire’s mother—who had

come to the gas station after McGuire called—standing

outside of McGuire’s truck. Trooper Wiles also came to

the gas station from the crash scene shortly after Trooper

Tomlin. Trooper Tomlin observed a piece of metal from

the back fender of the motorcycle wrapped around the

front of McGuire’s truck. Trooper Tomlin also observed

McGuire to have “red glassy eyes” and “an odor of alcohol

coming from his person.” 3 When he asked McGuire what

happened, McGuire told him that he “hit something”

while driving and that his wife, sitting in the passenger

seat at the time, had told him he “hit a person.” In order

to continue the investigation and because both McGuire

and his wife were showing signs of intoxication, McGuire’s

mother was asked to bring the truck to the scene of the

collision while McGuire and his wife were transported

there by patrol car.4

Continuing the investigation at the scene of the

accident, police found gouges on the road and other

evidence indicating that after McGuire’s truck hit Stidman,

the truck continued to drag the motorcycle for 829 feet

3. Trooper Filmore confirmed these observations of intoxication

later at the scene of the accident. Trial Tr. 34.

4. While riding in the patrol car, both McGuire and his wife were

detained “pending further investigation” but not under arrest. They

were not handcuffed and the patrol car doors were left unlocked.

Furthermore, McGuire rode in the front passenger seat to the crash

site. Trial Tr. 152-53.

6a

Appendix B

before coming to rest. Additionally, Stidman, himself,

was thrown 214 feet from the point of impact and hit a

guardrail. Concluding that McGuire was driving while

intoxicated at the time of the collision leading to Stidman’s

death, Trooper Wiles arrested McGuire on suspicion of

causing Stidman’s death by reason of intoxicated operation

of a motor vehicle and failure to stop and render aid, both

felony offenses.

At a nearby hospital, McGuire’s blood was drawn

without a warrant or consent to determine his blood

alcohol content. Somewhere between 90 minutes and

2.5 hours had passed from the time of the collision to

the moment his blood was drawn. The State charged

McGuire with felony murder by causing Stidman’s death

while driving intoxicated (enhanced to a first-degree

felony by two prior out-of-state charges for driving while

intoxicated), a second count of intoxication manslaughter

with a vehicle, and failure to stop and render aid. The jury

convicted him of felony murder and failure to stop and

render aid. The felony murder conviction was reversed

in light of Missouri v. McNeely 5 however, McGuire’s

conviction for failure to stop and render aid was affirmed

by the First Court of Appeals.

On remand and before the second trial began, Appellee

filed a new motion to suppress, this time to suppress the

arrest. Specifically he argued that the “only exception to

the warrant requirement which could possibly apply in

5. McGuire v. State, 493 S.W.3d 177 (Tex. App.—Houston[1st

Dist.] 2016, pet. ref’d), cert. denied, 581 U.S. 1006, 137 S. Ct. 2188,

198 L. Ed. 2d 255 (2017); Missouri v. McNeely, 569 U.S. 141, 151,

133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013).

7a

Appendix B

this case” was under 14.01(b) which requires an “offense

committed in [the officer’s] presence or within his view.”

Appellee, thus, requested suppression over the following

items after his detention:

1.

Photographs or video depictions of [Appellee].

2.

Audio recordings of [Appellee].

3.

Video recordings of [Appellee].

4.

Statements of [Appellee].

5.

Any other tangible items taken from [Appellee],

his person or the vehicle he was allegedly

operating not listed above;6

The State argued McGuire’s arrest was lawful

because probable cause existed, and he was found in

a suspicious place under Tex. Code Crim. Proc. art.

14.03(a)(1). The State did not mention exigency at all in

its written response. Furthermore, no new evidence was

submitted to the court during the suppression hearing,

nor did anybody testify. The trial court did not hear any

testimony and simply reviewed the pleadings, the 2012

suppression-hearing transcript, and testimony from

the 2016 trial.7 The trial court ultimately granted the

6. (1 Corr. CR 14) (“Motion to Suppress Evidence”). We note

that Appellee did not include his vehicle nor any evidence obtained

prior to detention.

7. The transcripts for these hearings were missing from the

original record forwarded to this Court. They were produced through

a supplement.

8a

Appendix B

suppression motion pertaining to the warrantless arrest

based on those records.

With regard to which evidence was to be suppressed,

the trial court clarified the boundaries during the

suppression hearing. The court stated:

THE COURT: Well, let’s clarify. Items taken from

the vehicle, I’m not going to grant

suppression as to that . . . . 8

THE COURT: “Tangible items taken from the

defendant,” I’m striking that . . . .

Any information they received from

the defendant prior to that time is

useable. He was being detained at

that point in time . . . .9

THE COURT: From the time that he was placed in

the car at the Shell station to the time

that he was placed under arrest at

the site of the dead body, that comes

in . . . .10

8. (1 RR 35).

9. (1 RR 37). The trial court’s copy of the motion to suppress

shows that the judge crossed out the entire “Any other tangible

items . . . .” provision, and amended all other provisions with the

limitations of either “after arrest/shown body” or “after placed in

PD vehicle after arrest.” (1 Corr. CR 14).

10. (1 RR 58).

9a

Appendix B

THE COURT: [A]t t hat poi nt i n t i me where

this officer says, “ You’re under

arrest,” . . . is suppressed; and

everything that arose from that

-- the conversations that occurred

therefrom is suppressed.11

In short, the evidence to be suppressed did not include

any physical evidence and was limited to what “arose”

from his arrest. This would include such post-arrest

evidence as McGuire’s statements after arrest, dashcam

video and audio recordings with McGuire in the police

vehicle after arrest, and McGuire’s booking photo.

This brings us to the present-day appeal by the State

to this Court. Under the record brought before this Court,

it is unclear what specific evidence Appellee sought to

suppress. The record does not show whether such evidence

would benefit or hurt either party’s case.

However, with the suppression of the arrest and

its fruits in place, the admissible inculpatory evidence

includes the following:

• McGuire was operating the vehicle.

• McGuire made three phone calls (his mother and

two acquaintances in law enforcement) indicating

he hit “something.”

11. (1 RR 60).

10a

Appendix B

• McGuire’s wife, a passenger at the time of the

collision, told him he hit a person.

• McGuire stopped his vehicle at a Shell station

approximately 0.1 miles from the crash site instead

of stopping at the scene and rendering aid.

• Physical evidence of a piece of motorcycle stuck in

the grill of McGuire’s truck.

• McGuire states to Trooper Wiles, “My wife said I

hit a person.”

• McGuire cried, covered his face, crouched, and

stated he was “sorry” multiple times when near the

motorcycle at the crash scene.

• The motorcycle was dragged approximately 829

feet.

• McGuire didn’t notice the piece of motorcycle in the

grill of his truck. He “didn’t seem to know where it

came from.”

• Trooper Wiles noticed a strong odor of alcohol on

McGuire, bloodshot and glassy eyes, and a dazed

look on his face.

• McGuire refused a field-sobriety test by Trooper

Wiles.

Nevertheless, because some evidence is suppressed

and assuming for the moment that it is indeed determinative

11a

Appendix B

to the case, we now address whether suppression was

warranted.12

Standard of Review for Motions to Suppress

An appellate court reviews a trial court’s ruling on

a motion to suppress for an abuse of discretion.13 Almost

complete deference is given to the court’s determination

of historical facts and its rulings on the application of law

to those questions of fact.14 The same deference is afforded

to the trial court in deciding mixed questions of law and

fact that are based on an assessment of credibility and

demeanor.15 For mixed questions of law and fact that do not

involve an evaluation of credibility and demeanor, however,

we conduct a de novo review.16 If the trial court’s ruling

is correct on any theory of law applicable to the case and

reasonably supported by the evidence, the ruling will be

upheld.17

12. On appellate review, it can be difficult to evaluate the weight

or need of any specific item of evidence without at least some pointers

as to how the party intends to rely on it or not.

13. Crain v. State, 315 S.W.3d 43, 48 (Tex. Crim. App. 2010).

14. Id.

15. Id.

16. Id.

17. Calloway v. State, 743 S.W.2d 645, 651-52 (Tex. Crim. App.

1988).

12a

Appendix B

Seizures under Texas Law

Federa l a nd St at e const itut iona l prov isions

explicitly protects the right of the people to be free from

“unreasonable seizures and searches.” Generally, searches

and seizures may only be conducted pursuant to a warrant

unless a recognized exception to the warrant requirement

applies. Warrants for seizures and searches will not issue

“without probable cause.” Probable cause exists, under the

totality of the circumstances, if the evidence shows at the

moment of arrest that “the facts and circumstances within

the officer’s knowledge and of which he had reasonably

trustworthy information were sufficient to warrant a

prudent man in believing that the arrested person had

committed or was committing an offense.”18 “Probable

cause to arrest must point like a beacon toward the specific

person being arrested.”19

In that vein, Texas law also requires statutory

authority to arrest when the arrest is warrantless. 20 Texas

Code of Criminal Procedure 14.03(a)(1) provides one such

avenue of authority for warrantless arrests:

A ny peace of f icer may a r rest , w ithout

warrant . . . persons found in suspicious places

and under circumstances which reasonably

18. Parker v. State, 206 S.W.3d 593, 596-97 (Tex. Crim. App.

2006).

19. Id. at 597.

20. State v. Steelman, 93 S.W.3d 102, 107 (Tex. Crim. App.

2002).

13a

Appendix B

show that such persons have been guilty of

some felony, violation of Title 9, Chapter 42,

Penal Code, breach of the peace, or offense

under Section 49.02, Penal Code, or are about

to commit some offense against the laws; . . . .

We have historically recognized that an overly liberal

construction of the authority to determine what is a

“suspicious place” could give police the arbitrary and

unlawful “power to pass summary judgment upon a

human being, and incarcerate him in a dungeon, although

innocent of any crime against law or society.” 21 Thus,

in order to maintain “the obvious legislative intent of

Chapter 14, protection of individual rights and furtherance

of legitimate law enforcement,” this Court has recognized

that the use of “persons found in suspicious places” under

Article 14.03 should “authorize warrantless arrests in only

limited situations.” 22 In doing so, our case law construing

this statutory authority has evolved often parallel to the

requirements of the Fourth Amendment on the federal

side.

Accordingly, we have said that “[t]he determination

of whether a place is a ‘suspicious place’ is a highly fact21. Joske v. Irvine, 43 S.W. 278, 280 (Tex. Civ. App. 1897), rev’d

on other grounds, 91 Tex. 574, 44 S.W. 1059 (Tex. 1898) (construing

the predecessor statute, Article 249 of the Code of Criminal

Procedure of 1895, to the modern Article 14.03). See also Joske v.

Irvine, 91 Tex. 574, 44 S.W. 1059 (Tex. 1898) (“We are therefore of

opinion that the record shows that plaintiff’s arrest was unlawful.”).

22. Johnson v. State, 722 S.W.2d 417, 421 (Tex. Crim. App. 1986).

14a

Appendix B

specific analysis” because “few, if any, places are suspicious

in and of themselves.” 23 “Rather, additional facts available

to an officer plus reasonable inferences from those facts

in relation to a particular place may arouse justifiable

suspicion.” 24 Though several different factors “may be

used to justify the determination of a place as suspicious,”

this Court has recognized at least one important factor

common to most scenarios: “The time frame between the

crime and the apprehension of a suspect in a suspicious

place is short.” 25 This Court and a number of the courts

of appeals have consequently found suspects lawfully

arrested in “suspicious places” where (1) the suspect was

arrested at a crime scene or somewhere linked to it, (2)

shortly after a crime had taken place, and (3) the totality

of the facts known to the police officer objectively point to

the suspect’s guilt in the commission of a felony or other

breach of the peace under 14.03(a)(1). 26

23. Dyar v. State, 125 S.W.3d 460, 468 (Tex. Crim. App. 2003);

Johnson, 722 S.W.2d at 421.

24. Johnson, 722 at 421.

25. Dyar, 125 S.W.3d at 468.

26. See Johnson, 722 at 420-21 (detailing how Johnson, an

apartment maintenance employee, was placed under warrantless

arrest after police determined that (1) Johnson roughly matched

the witness’s description, (2) there was no sign of forced entry, (3)

Johnson’s set of master keys were found in the hallway in front of the

door to the murder scene, (4) Johnson arrived on the scene minutes

after police and offered an odd explanation for being there, and (5)

blood was found on his pants); Dyar, 125 S.W.3d at 467 (detailing how

Dyar was arrested for DWI after he was found by police still bleeding

from his mouth minutes after wrecking his truck and walking on

15a

Appendix B

Analysis

The appellate cour t below found suppression

warranted because the State relied on but failed to fulfill

the requirements of Tex. Code Crim. Proc. 14.03(a)(1). We

note again there was no hearing or evidence received by

Judge Elliott, he simply relied on the record from the prior

hearings. Although the question of exigent circumstances

was never argued in the suppression briefs and hearing,

the court below relied on our opinion in Swain v. State27

to require exigency as a required condition under the

definition of “persons found in suspicious places” in

Article 14.03(a)(1). Thus, under the court of appeals’

interpretation, Article 14.03(a)(1) requires “(1) probable

cause existed, (2) the person was found in a suspicious

place, and (3) ‘exigent circumstances call for immediate

action or detention by police.’” 28 Opining that the State

failed to provide evidence showing exigent circumstances

(even though the question was never argued at the trial

level), 29 the court of appeals affirmed the suppression of

the arrest and evidence flowing from it.

foot to his nearby home).

27. Swain v. State, 181 S.W.3d 359 (Tex. Crim. App. 2005).

28. State v. McGuire, 586 S.W.3d 451, 457 (Tex. App.—Houston

[1st Dist.] 2019) (quoting Swain v. State, 181 S.W.3d 359, 366 (Tex.

Crim. App. 2005)).

29. The only arguments heard by the trial judge consisted of

whether the gas station was a “suspicious place” since that was not

the crime scene.

16a

Appendix B

The State now asks this Court to disavow Swain

and remove the exigency requirement under Article

14.03(a)(1)’s “suspicious places.” Failing that, the State

alternatively asserts that exigency exists under the facts

of this case. Regardless of whether exigent circumstances

are absolutely required under Article 14.03(a)(1), we

find that there were exigent circumstances in this case

to justify a warrantless arrest. If ever there was a

case to be made for exigency, this case defines it. As a

result, there is no need to disavow Swain at this time.

Exigent circumstances to execute a warrantless arrest is

supported throughout the record. Although there may be

a case to made in the future with different facts that may

not satisfy Article 14.03 (a)(1), those facts are not before us

and there is no need to go down that road. 30 We are not in

the business of issuing advisory opinions to unknown facts.

Probable Cause: Evidence Pointed to Appellee Like

a Beacon

A review of the facts known to police show probable

cause to arrest “pointed like a beacon toward[s]”

Appellee. 31 Though he was at a gas station, Appellee was

only a short distance from the crash site—only a tenth

of a mile away and only a short time after the estimated

time of the crash. There were motorcycle parts lodged in

the grill of his truck that he could not explain. Evidence

30. See e.g., Armstrong v. State, No. 05-21-00333-CR, 2022

Tex. App. LEXIS 4941, 2022 WL 2816540 (Tex. App.—Dallas July

19, 2022, pet. filed) (not designated for publication).

31. Parker, 206 S.W.3d at 597.

17a

Appendix B

at the crash site showed that Stidman, the victim, was

hit while riding his motorcycle and was dragged roughly

829 feet. Stidman died at the scene. Appellee’s wife who

was riding in the passenger seat during the collision

told Appellee that he had “hit a person.” Furthermore,

Appellee had made calls to his mother and two law

enforcement friends and admitted that he “hit something.”

In addition to finding a cooler full of beer in Appellee’s

truck bed, police observed Appellee to have a strong odor

of alcohol, bloodshot glassy eyes, and a dazed look on his

face. Finally, Appellee refused to submit to standard field

sobriety testing. These facts were sufficient to warrant

an objectively prudent person to believe that Appellee

had committed intoxication manslaughter if not felony

murder. He had also failed to stop and render aid in a

motor collision resulting in serious injury. Alternatively,

police also had probable cause to believe that Appellee

had unlawfully caused the death of another. Unlawfully

causing the death of another, for the purposes of Article

14.03(a)(1), is at the very least a breach of the peace. 32 To

the extent that the trial court found otherwise on either

of these points was clearly erroneous.

Suspicious Place and Exigent Circumstances

The State argues on discretionary review that the

court of appeals erred in affirming the trial court’s

32. “Texas courts have defined and interpreted the term

‘breach of the peace’ to mean an act that threatens to disturb the

tranquility enjoyed by the citizens.” Ste-Marie v. State, 32 S.W.3d

446, 449 (Tex. App.—Houston[14th Dist.] 2000, no pet.); see also

Romo v. State, 577 S.W.2d 251 (Tex. Crim. App. 1979) (finding DWI

to be a breach of the peace under the Texas Penal Code).

18a

Appendix B

suppression when the issue of exigency was not raised

nor ruled on by the trial court. Because Appellee never

raised the issue, nor put them on fair notice that it was

contested, there was no reason for the State to present

evidence or call witnesses to testify towards exigency.

Thus, the State argues that they were unfairly deprived

of an “adequate opportunity to develop a complete factual

record” regarding exigency. 33 The State further argues

that Article 14.03(a)(1) does not expressly contain an

exigency requirement and that construing it to require

exigency leads to absurd results. In response, Appellee

argues that exigency actually was litigated in the trial

court and that it is the fault of the State in choosing not

to present further evidence of it.

We agree with the State in that they were not given

fair notice of the exigency question which is not specifically

mentioned in the statute. This unfairly deprived them of

an adequate opportunity to develop a complete factual

record. However, although the factual record regarding

the question of exigency has not been completely

developed, the existing factual record sufficiently establish

that exigent circumstances exist here. As we previously

noted, based on these facts, exigency existed to make a

warrantless arrest, and there is no need to ignore it.

Exigent circumstances are circumstances that “call

for immediate action or detention by police.”34 Accordingly,

fact-specific scenarios may fulfill 14.03(a)(1)’s exigency

33. State v. Esparza, 413 S.W.3d 81, 90 (Tex. Crim. App. 2013).

34. Swain, 181 S.W.3d at 366.

19a

Appendix B

requirement where it is overly impractical for police

officers to obtain an arrest warrant while still furthering

the goals of the public good under the totality of the

circumstances. 35 Factors that may be considered include

(1) whether the subject of probable cause is likely to leave

the scene, (2) whether evidence of criminality is likely to be

destroyed, degraded, or lost, and (3) whether the subject of

probable cause poses a continuing and present danger to

others.36 Other considerations may multiply the magnitude

35. See Kentucky v. King, 563 U.S. 452, 460, 131 S. Ct. 1849, 179

L. Ed. 2d 865 (2011) (allowing exception to the Fourth Amendment

warrant requirement when the “exigencies of the situation make the

needs of law enforcement so compelling that a warrantless search

is objectively reasonable under the Fourth Amendment.”); Payton

v. New York, 445 U.S. 573, 590, 100 S. Ct. 1371, 63 L. Ed. 2d 639

(allowing warrantless arrests inside a home if there are exigent

circumstances).

Although it was in a different type of Fourth Amendment

event (blood draws), the Supreme Court in McNeely discussed and

approved warrantless police action in fact specific scenarios not too

different from the instant case:

We added that particularly in a case such as this,

where time had to be taken to bring the accused to a

hospital and to investigate the scene of the accident,

there was no time to seek out a magistrate and secure

a warrant. Given these special facts, we found that it

was appropriate for the police to act without a warrant.

Missouri v. McNeely, 569 U.S. 141, 151, 133 S. Ct. 1552, 185 L. Ed.

2d 696 (2013) (internal citations and quotes omitted).

36. Dyar v. State, 125 S.W.3d 460, 471 (Tex. Crim. App. 2003)

(Cochran, J., concur); see Swain, 181 S.W.3d at 366 (“Any ‘place’

may become suspicious [under Article 14.03(a)(1)] when a person

20a

Appendix B

of the exigency such as how difficult or time-consuming

it is to obtain a warrant in relation to the above factors.

The totality of the facts in this case, though

underdeveloped towards this point, show Appellee was in

a “suspicious place” and exigent circumstances existed. 37

Police were faced with investigating a roadway homicide

likely induced by driving while intoxicated. Police

were faced with the challenge of conducting at least a

preliminary investigation at around 1:00 am in the dark of

at that location and the accompanying circumstances raise a

reasonable belief that the person has committed a crime and exigent

circumstances call for immediate action or detention by police.”

(emphasis added)).

37. We agree with Justice Keyes’s dissent from the First Court

of Appeals regarding what constitutes a suspicious place:

‘Few places, if any, are inherently suspicious. The

determination of whether a place is suspicious

requires a highly fact specific analysis.’ As the Court

of Criminal Appeals has explained, under article

14.03(a)(1),

Any place may become suspicious when

an individual at the location and the

accompanying circumstances raise a

reasonable belief that the individual

comm itt ed a cr i me and ex igent

circumstances call for immediate action

or detention by the police.

McGuire, 586 S.W.3d 451, 466 (Tex. App.—Houston [1st Dist.]

2019) (Keyes, J., dissent) (first quoting Lewis v. State, 412 S.W.3d

794, 802(Tex. App.—Amarillo 2013, no pet.); and then quoting

Swain, 181 S.W.3d at 366) (internal citations omitted).

21a

Appendix B

night on a poorly lit intersection. Their ability to preserve

and recover as much physical evidence as possible was

significantly diminished compared to during business

hours and under broad daylight. As Trooper Tomlin

testified, debris from the accident and other evidence,

such as skid marks, trails of vehicle fluids, and roadway

scratches, needed to be identified and recorded because

they disappear over time. Furthermore, there were only

four DPS troopers on duty in the entire county that night.

And three of them, including Trooper Tomlin, were spread

out over 829 feet of roadway stretching from the point

of impact to the final resting place of the motorcycle.

According to Trooper Tomlin, it took the three troopers “a

couple of hours” by mostly flashlight to finish investigating

the scene.38 Though Appellee was cooperative to this point,

there was no guarantee that he would not leave the scene

at his earliest opportunity. And if he left in his vehicle,

Appellee could have presented a danger to others.

In addition to the need to collect and preserve physical

evidence at the scene, there was also an increasing need

to preserve evidence of intoxication in Appellee’s blood. 39

In addition to the natural attrition of the level of blood

38. According to Trooper Tomlin, a number of Fort Bend

Sherriff’s deputies were also at the scene on the night of the

collision, but they were mostly occupied with directing traffic (on an

intersection near State Highway 99) so the investigating team of law

enforcement wouldn’t be hit while investigating the scene.

39. In a blood draw suppression hearing leading up to the first

trial, after both attorneys offered their knowledge of how late-night

warrants are obtained in the county, Judge Higginbotham concluded

the following:

22a

Appendix B

alcohol content over time, any additional consumption

of alcohol or other intoxicants would have detrimentally

degraded the reliability of any later collected blood draw

evidence. Because McNeely had not been decided by the

Supreme Court, the officers investigating the scene could

not have known a warrant was required on the date in

question. Nevertheless, they had ample information and

evidence to form probable cause to arrest Appellee. All

of the information that the police possessed, including

the place in which he was found, “pointed like a beacon”

towards Appellee and shining an inculpatory light upon

him.40 At the minimum, there was probable cause to arrest

him for failure to stop and render aid.

Blood was drawn somewhere between 2:00 and 3:00

am—roughly 90 minutes to more than two hours after the

I’ve heard the argument of counsel and gone over

your pleadings and these cases [including Missouri v.

McNeely] that have been presented here.

I believe that in this case, as I know it, that the

police probably acted in accordance with what the law

was at that time, as far as the Transportation Code.

Also, I think that there may have been exigent

circumstances. I don’t know how. Was there a — was

there a case, supreme court case, it doesn’t define

exigent circumstances. I just know that it’s — that

it is not defined as trying to do something about the

dissipation of alcohol. And the totality of what I’ve

heard here, I’m going to deny your supplemental

motion to suppress.

Mar. 7, 2014 Pretrial Tr. 73 (emphasis added).

40. Parker, 206 S.W.3d at 597.

23a

Appendix B

collision. This delay was without any time taken to obtain

a warrant. Assertions by the attorneys for the State and

Appellee with personal knowledge suggest that obtaining

a warrant Appellee’s arrest would have added potentially

hours of more delay (and was thereby very impractical).41

During pretrial hearing on March 7, 2014, the

attorneys (both having some prior personal experience

in obtaining warrants) detailed the unpredictability and

difficulty of obtaining a warrant in the middle of the night

in Fort Bend County. Around the time of trial, the steps

to obtaining a warrant included the following. Depending

on the night, an assistant district attorney may or may not

have been on call to assist with getting a warrant. If no

assistant district attorney was available, the officer would

have had to prepare the warrant and affidavit themself

and then contact a judge (from a list of judges and their

phone numbers) to see if they were available to sign it.

While there might have been a judge assigned to be “on

call” for that night, according to the prosecutor, the “on

call” judge was not always reliable or responsive. Trooper

Tomlin testified that he was once unable to find a judge to

sign off on a warrant in a prior instance in the middle of

the night. The officer or on-call ADA would then drive to

the judge’s house—however far that might be—and get

41. See McNeely, 569 U.S. at 156 (“[E]xigent circumstances

justifying a warrantless blood sample may arise in the regular

course of law enforcement due to delays from the warrant application

process.”). We realize that McNeely only deals with the seizure of

blood in a DWI investigation as opposed to the DWI arrest in this

case. However, there are useful parallels in the determination of

“exigency” that may be applicable here.

24a

Appendix B

the warrant signed before returning to the scene for its

execution. Furthermore, while some judges in Fort Bend

County were willing to transmit warrants by facsimile,

per the prosecutor, at least some were unable or unwilling

to do so.42 In summary, although there was no evidence

regarding that specific night, the general added difficulty

of getting a warrant at night combined with the type of

crime and the need to preserve evidence are sufficient to

demonstrate exigent circumstances under these specific

facts.

Conclusion

Under the facts of this case, the court of appeals

below erred in finding suppression was warranted under

Article 14.03(a)(1). We reverse the court of appeals and

the trial court’s suppression of Appellee’s arrest and all

evidence arising from it, and remand the case back to the

trial court.

Delivered: February 21, 2024

42. See id. at 154-55 (finding natural blood-alcohol dissipation

to no longer automatically qualifies as an exigency in a DWI scenario

but must instead be evaluated on a case-by-case basis— after noting

that search warrants can be obtained via electronic, telephonic,

or radio communications but also acknowledging that electronic

warrants may still be time-consuming and that “improvements in

communications technology do not guarantee that a magistrate

judge will be available when an officer needs a warrant after making

a late-night arrest.”).

25a

C

APPENDIX C —Appendix

CONCURRING

OPINION

OF THE COURT OF CRIMINAL APPEALS

OF TEXAS, DATED FEBRUARY 21, 2024

IN THE COURT OF CRIMINAL

APPEALS OF TEXAS

NO. PD-0984-19

THE STATE OF TEXAS,

Appellant

v.

SEAN MICHAEL MCGUIRE,

Appellee

ON STATE’S PETITION FOR DISCRETIONARY

REVIEW FROM THE FIRST COURT OF APPEALS

FORT BEND COUNTY

K eel, J., filed a concurring opinion in which K eller, P.J.,

and Yeary and Slaughter, JJ., joined.

CONCURRING OPINION

We granted review to decide whether exigency is

needed to justify a warrantless arrest under Article

14.03(a)(1). Neither its text nor our caselaw imposes an

exigency requirement, and we should say so. Since the

lead opinion hedges on the issue, I respectfully concur

only in its judgment.

26a

Appendix C

As pertinent here, Article 14.03(a)(1) authorizes the

warrantless arrest of “persons found in suspicious places

and under circumstances which reasonably show that

such persons have been guilty of some felony” or other

enumerated offense. Tex. Code Crim. P. art. 14.03(a)(1).

It makes no mention of exigent circumstances.

Other statutes governing warrantless arrests not

only mention exigent circumstances but require them.

Article 14.05 prohibits entry into a residence to make a

warrantless arrest absent “exigent circumstances” or

consent. Tex. Code Crim. P. art. 14.05. Article 14.03(a)(2)

specifies a particular exigency—“probable cause to believe

there is danger of further bodily injury” to a person

who has already been assaulted. Tex. Code Crim. P. art.

14.03(a)(2). Article 14.04 specifies another exigency—a

reported felon about to escape such that there is no time

to get a warrant. Tex. Code Crim. P. art. 14.04. But the

Legislature has never imposed an exigency requirement

on Article 14.03(a)(1)—a significant omission.

This Court has never imposed an exigency requirement

on Article 14.03(a)(1), either. Rather, we have cited

exigency as one circumstance in the totality that must be

analyzed to assess an arrest’s validity under the statute.

In Gallups v. State, for example, police were justified in

arresting the defendant at his house because he walked

there just after abandoning his wrecked car, and there was

an exigent need to test his blood-alcohol level. 151 S.W.3d

196, 201–02 (Crim. App. 2004). In Swain v. State, the

defendant’s arrest at his workplace was justified because

he admitted breaking into the missing victim’s house,

27a

Appendix C

beating her, and leaving her in a remote location, and the

police needed to prevent his flight and find the victim. 181

S.W.3d 359, 366–67 (Tex. Crim. App. 2005). Exigency was

one circumstance in the totality that Gallups and Swain

examined; it was not a particular requirement.

Dyar v. State declined an invitation to impose an

exigency requirement onto Article 14.03(a)(1) and instead

embraced the longstanding totality-of-the-circumstances

analysis. 125 S.W.3d at 468 (Tex. Crim. App. 2003). Dyar

observed that the Legislature had never amended Article

14.03(a)(1) in response to earlier cases applying a totality

of the circumstances test, so we presumed that the

Legislature intended the same construction to continue

to apply. Id.

Dyar applied a bifurcated test: (1) probable cause of

guilt and (2) the defendant’s location in a suspicious place.

Id. The same facts that demonstrated Dyar’s guilt also

showed that the hospital where he was arrested was a

suspicious place. Id. at 467–68. He had been identified as

the driver in a recent DUI and had admitted to drinking

and driving. Id. at 468.

Answering the suspicious-place question is a “highly

fact-specific analysis.” Id. Several factors have been

examined to answer the question. Id. Dyar identified one

“important” and “constant” factor in determining the

suspiciousness of a place of arrest: temporal proximity

between the crime and the arrest. Id. at 468. Another

factor is physical proximity. In Johnson v. State, the

defendant was arrested on probable cause at the scene

28a

Appendix C

of a murder within two hours of its commission; that was

a suspicious place. 722 S.W.2d 417, 421 (Tex. Crim. App.

1986) (overruled on other grounds, McKenna v. State 780

S.W.2d 797 (Tex. Crim. App. 1989)).

In this case, the “suspicious place” requisite was

fulfilled by probable cause to show Appellee’s guilt of a

felony and by temporal and physical proximity between

the crime and his arrest. He was found minutes after a car

crash at a gas station a few hundred feet from the crash

site. A motorcyclist was dead, and motorcycle parts were

stuck in the grill of Appellee’s truck. Appellee showed

signs of intoxication, he had beer in his truck, he admitted

he hit something, and his passenger said he hit a person.

His warrantless arrest was justified under Article 14.03(a)

(1) notwithstanding any exigency, and the court of appeals

erred in upholding the trial court’s order suppressing

evidence obtained as a result of Appellee’s arrest.

Accordingly, I concur in the Court’s decision to reverse

the lower court’s judgment.

Filed: February 21, 2024

29a

APPENDIX D —Appendix

OPINION

DOF THE COURT

OF APPEALS OF TEXAS, FIRST DISTRICT,

HOUSTON, DATED AUGUST 29, 2019

COURT OF APPEALS OF TEXAS,

FIRST DISTRICT, HOUSTON

NO. 01-18-00146-CR

THE STATE OF TEXAS,

Appellant,

v.

SEAN MICHAEL MCGUIRE,

Appellee.

August 29, 2019,

Opinion Issued

On Appeal from the 268th District Court

Fort Bend County, Texas

Trial Court Case No. 10-DCR-055898

OPINION

Sean Michael McGuire is charged with felony murder

for the death of a motorcyclist McGuire struck while

allegedly intoxicated. McGuire moved to suppress evidence

obtained after his arrest, arguing that his warrantless

arrest was unlawful. The State argued that Article

14.03(a)(1) of the Code of Criminal Procedure authorized

30a

Appendix D

McGuire’s warrantless arrest because McGuire was found

in a suspicious place. Tex. Code Crim. Proc. art. 14.03(a)

(1). The trial court granted McGuire’s motion to suppress,

and the State appealed. See Tex. Code Crim. Proc. art.

44.01(a)(5) (permitting State an interlocutory appeal of an

order granting a criminal defendant’s motion to suppress

evidence).

Because the Court of Criminal Appeals has interpreted

Article 14.03(a)(1) to require the State to show exigent

circumstances1 to arrest without a warrant under Article

14.03(a)(1) and the State did not, we affirm. Swain v. State,

181 S.W.3d 359, 366 (Tex. Crim. App. 2005); Gallups

v. State, 151 S.W.3d 196, 202 (Tex. Crim. App. 2004);

Minassian v. State, 490 S.W.3d 629, 637 (Tex. App.—

Houston [1st Dist.] 2016, no pet.) (describing Swain as

1. Black’s Law Dictionary defines exigent circumstances as

follows:

Circumstance . . .

-exigent circumstances(1906) 1. A situation that

demands unusual or immediate action and that may

allow people to circumvent usual procedures, as when a

neighbor breaks through a window of a burning house

to save someone inside. 2. A situation in which a police

officer must take immediate action to effectively make

an arrest, search, or seizure for which probable cause

exists, and thus may do so without first obtaining a

warrant. • Exigent circumstances may exist if (1) a

person’s life or safety is threatened, (2) a suspect’s

escape is imminent, or (3) evidence is about to be

removed or destroyed.

Circumstance, Black’s Law Dictionary (10th ed. 2014).

31a

Appendix D

holding that “warrantless arrest under [Article] 14.03(a)

(1) requires showing of exigent circumstances”); cf. Bell v.

State, No. 02-17-00299-CR, 2019 Tex. App. LEXIS 5934,

2019 WL 3024481, at *2-3 (Tex. App.—Fort Worth July

11, 2019) (mem. op., not designated for publication) (noting

Swain exigency requirement and numerous intermediate

appellate court opinions applying Swain to require proof

of exigency when State relies on Article 14.03(a)(1)’s

suspicious-place exception).

Background

Late one evening, Sean Michael McGuire was driving

home when his truck struck a motorcycle driven by David

Stidman. McGuire made a U-turn and pulled into the

parking area of a nearby Shell gas station. McGuire called

his mother and two people he knew in law enforcement.

After calling them, McGuire waited at the gas station.

Meanwhile, the police were investigating the discovery of

a motorcycle and dead motorist. During their investigation,

the police were told that McGuire was waiting at the Shell

gas station. They went to the gas station. At least one officer

who spoke with McGuire suspected he had been driving

while intoxicated.

The police drove McGuire to the location of Stidman’s

body. There, McGuire was arrested. He was taken to a

local hospital where a warrantless, nonconsensual blood

draw was performed to determine his blood-alcohol content.

McGuire was charged with felony murder on the basis

that he was driving while intoxicated, he had two prior

32a

Appendix D

out-of-state DWIs, and those DWIs elevated this offense

to a first-degree felony. See Tex. Penal Code §§ 19.02(b)

(3) (felony murder), 49.09(b)(2) (enhancing DWI to felony).

McGuire moved to suppress evidence on the argument

that his warrantless arrest and warrantless search were

unlawful. Among his arguments, he contended that the

warrantless blood draw was an unlawful search in violation

of the Fourth Amendment. His motion to suppress was

denied. He was convicted of murder and appealed. This

Court reversed his conviction, holding that the warrantless,

nonconsensual blood draw violated McGuire’s Fourth

Amendment right to be free from unreasonable searches

as recognized in Missouri v. McNeely, 569 U.S. 141, 133 S.

Ct. 1552, 185 L. Ed. 2d 696 (2013). See McGuire v. State,

493 S.W.3d 177, 199 (Tex. App.—Houston [1st Dist.] 2016,

pet. ref’d); see also id. at 202 (stating, “All remaining issues

raised in McGuire’s appeal of the murder conviction are

moot.”). The case was remanded and set for retrial in 2018.

In advance of retrial, McGuire filed another motion to

suppress evidence. 2 He argued that his warrantless arrest

2. A ruling on a motion to suppress evidence is interlocutory

and may be subject to reconsideration and revision on remand.

See Clement v. State, 530 S.W.3d 154, 160 (Tex. App.—Eastland

2015) (stating that “a pretrial motion to suppress evidence is

‘nothing more than a specialized objection to the admissibility of

that evidence’ that is interlocutory in nature . . . [and] may be the

subject of reconsideration and revision as is any other ruling on

the admissibility of evidence . . . [therefore,] the State will not be

precluded from seeking a reconsideration of the suppression on a

more fully developed record upon the remand of this case to the

trial court.”), rev’d on other grounds, PD-0681-15, 2016 WL 4938246

33a

Appendix D

was unlawful and did not fit within any of the Chapter 14

exceptions to the warrant requirement. See Tex. Code

Crim. Proc. art. 14.01-.06. In the State’s written response

and at the suppression hearing, the State argued that the

arrest fell within the suspicious-place warrant exception

under Article 14.03(a)(1), but the State did not note the

exigency requirement, point to any evidence that might

satisfy the exigency requirement, or argue that a per se

exigency exists.

The trial court—with a different trial judge than the

one who presided over the first trial—did not receive any

new evidence at the 2018 suppression hearing. Instead, the

court reviewed the 2012 suppression-hearing transcript,

the 2016 trial testimony, and the parties’ pleadings. After

considering these materials and the parties’ motion and

response, the trial court granted McGuire’s motion to

suppress, and the State appealed.

(Tex. Crim. App. Sept. 14, 2016) (not designated for publication).

This Court did not review the trial court’s 2012 suppression ruling

based on whether the warrantless arrest was legally permissible,

only whether the warrantless search was permissible. See McGuire,

493 S.W.3d at 202. Thus, there was no bar to reconsideration of

the warrantless-arrest suppression issue on remand at the 2018

suppression hearing; nor has law of the case been established on the

warrantless arrest issue because this Court did not rule on that issue.

See State v. Swearingen, 424 S.W.3d 32, 36 (Tex. Crim. App. 2014)

(“The ‘law of the case’ doctrine provides that an appellate court’s

resolution of questions of law in a previous appeal are binding in

subsequent appeals concerning the same issue.”) (emphasis added).

34a

Appendix D

Standard of Review

Appellate courts review a trial court’s ruling on a

motion to suppress using a bifurcated standard of review.

State v. Martinez, 570 S.W.3d 278, 281 (Tex. 2019). Under

the bifurcated standard, the trial court is given almost

complete deference in its determination of historical facts,

especially if based on an assessment of demeanor and

credibility, and the same deference is afforded the trial

court for its rulings on application of law to questions of

fact and to mixed questions of law and fact, if resolution of

those questions depends on an evaluation of demeanor and

credibility. Id. However, for mixed questions of law and fact

that do not fall within that category, the reviewing court

may conduct a de novo review. Id. Our review of questions

of law is de novo. Id.

We will sustain the trial court’s ruling if it is reasonably

supported by the record and correct on any theory of law

applicable to the case. Laney v. State, 117 S.W.3d 854, 857

(Tex. Crim. App. 2003). This is so even if the trial judge

gives the wrong reason for its decision. Id.; State v. Ross,

32 S.W.3d 853, 855-56 (Tex. Crim. App. 2000); State v.

Brabson, 899 S.W.2d 741, 745-46 (Tex. App.—Dallas 1995),

aff’d, 976 S.W.2d 182 (Tex. Crim. App. 1998) (stating that,

in context of reviewing trial court order granting motion to

suppress “we cannot limit our review of the [trial] court’s

ruling to the ground upon which it relied. We must review

the record to determine if there is any valid basis upon

which to affirm the county criminal court’s ruling”).

35a

Appendix D

Article 14.03(a)(1) and the Necessary

Showing of Exigency

Warrantless arrests in Texas are authorized only in

limited circumstances. Swain, 181 S.W.3d at 366. Once

a defendant has established that an arrest has occurred

and that no warrant was obtained, the burden shifts to

the State to show that the arrest was within an exception

to the warrant requirement. Covarrubia v. State, 902

S.W.2d 549, 553 (Tex. App.—Houston [1st Dist.] 1995,

pet. ref’d); Holland v. State, 788 S.W.2d 112, 113 (Tex.

App.—Dallas 1990, pet. ref’d). Most of the exceptions to

the warrant requirement are found in Chapter 14 of the

Code of Criminal Procedure. See Swain, 181 S.W.3d at

366; Tex. Code Crim. Proc. art. 14.01-.06 (delineating

those circumstances in which warrantless arrests are

permissible). The validity of a warrantless arrest can only

be decided by the specific factual situation in each individual

case. Holland, 788 S.W.2d at 113.

The exception relied on by the State in this appeal is

found in Article 14.03(a)(1), which provides:

A ny peace off icer may a r rest , w ithout

warrant . . . persons found in suspicious places

and under circumstances which reasonably

show that such persons have been guilty of some

felony . . . breach of the peace, or [various other

listed offenses] . . . or are about to commit some

offense against the laws[.]

Tex. Code Crim. Proc. art. 14.03(a)(1).

36a

Appendix D

The Court of Criminal Appeals has held that, when

relying on Article 14.03(a)(1), the State must establish

that (1) probable cause existed, (2) the person was found

in a suspicious place, and (3) “exigent circumstances call

for immediate action or detention by police.” Swain, 181

S.W.3d at 366 (concluding that exigent circumstances

were established on evidence that person arrested had

just admitted to leaving injured woman in secluded area

after beating her during robbery, police perceived urgent

need to find woman before she died from her injuries, and

held additional concern that person who had admitted his

involvement might flee); Gallups, 151 S.W.3d at 202; cf.

Dyar v. State, 125 S.W.3d 460, 470-71 & n.13 (Cochran,

J., concurring) (stating that “if there are no exigent

circumstances that call for immediate action or detention

by the police, article 14.03(a)(1) cannot be used to justify a

warrantless arrest”) (citing Gerald S. Reamey, Arrests in

Texas’s “Suspicious Places”: A Rule in Search of Reason,

31 Tex. Tech L. Rev. 931, 967-77, 980 (2000)).

At least five intermediate courts—including this

one—have noted the State’s burden to establish exigent

circumstances when relying on Article 14.03(a)(1). See,

e.g., Minassian v. State, 490 S.W.3d 629, 637 (Tex. App.—

Houston [1st Dist.] 2016, no pet.) (describing Swain as

holding that “warrantless arrest under Section 14.03(a)(1)

requires showing of exigent circumstances” and concluding

that risk of destruction of computer-data evidence on

laptops established exigency); Polly v. State, 533 S.W.3d

439, 443 & n.4 (Tex. App.—San Antonio 2016, no pet.)

(relying on Swain for proposition that exigency must be

established for warrantless arrest under Article 14.03(a)

37a

Appendix D

(1)); see also Cook v. State, 509 S.W.3d 591, 603-04 (Tex.

App.—Fort Worth 2016, no pet.); LeCourias v. State, 341

S.W.3d 483, 489 (Tex. App.—Houston [14th Dist.] 2011,

no pet.); State v. Morales, No. 08-09-00137-CR, 2010 Tex.

App. LEXIS 1679, 2010 WL 819126, at *2 (Tex. App.—El

Paso Mar. 10, 2010, no pet.) (mem. op., not designated for

publication).

There are several pre-2013 appellate court cases

in which Texas intermediate appellate courts have held

that the natural dissipation of alcohol in a suspect’s blood

provides an exigency under Article 14.03(a)(1) in that

dissipation destroys evidence of a DWI offense. See, e.g.,

Gallups, 151 S.W.3d at 202 (stating that “need to ascertain

appellant’s blood-alcohol level” was exigent circumstance);

Winter v. State, 902 S.W.2d 571, 575-76 (Tex. App.—

Houston [1st Dist.] 1995, no pet.); Morales, 2010 Tex. App.

LEXIS 1679, 2010 WL 819126, at *2; State v. Wrenn, No.

05-08-01114-CR, 2009 Tex. App. LEXIS 5213, 2009 WL

1942183, at *3 (Tex. App.—Dallas July 8, 2009, no pet.)

(mem. op., not designated for publication).

In 2013, the United States Supreme Court ruled that

the dissipation of alcohol does not provide a per se exigency

to relieve the State of the requirement of a search warrant

when conducting an unconsented-to blood draw of a DWI

suspect. McNeely, 569 U.S. at 155. Since McNeely, at

least one intermediate appellate court has held that the

dissipation of alcohol does not, without more, meet Article

14.03(a)(1)’s exigency requirement either. State v. Donohoo,

No. 04-15-00291-CR, 2016 Tex. App. LEXIS 6558, 2016

WL 3442258, at *6 (Tex. App.—San Antonio June 22,

38a

Appendix D

2016, no pet.) (mem. op., not designated for publication)

(stating that “McNeely forecloses the State’s position” that

“exigent circumstances called for Donohoo’s immediate

arrest” on its singular argument that it needed to obtain

his blood-alcohol level before the natural dissipation of

alcohol); see also Bell, 2019 Tex. App. LEXIS 5934, 2019

WL 3024481, at *2 n.2 (citing McNeely in discussion of

exigency justifying arrest); but see Dansby v. State, 530

S.W.3d 213, 222 (Tex. App.—Tyler 2017, pet. ref’d) (relying

on Gallups, and without citation to McNeely or discussion

of any case-specific facts influencing ability to timely obtain

warrant, holding that “exigent circumstances—the need

to ascertain Appellant’s alcohol concentration—existed

to justify Appellant’s immediate arrest” under Article

14.03(a)(1)); Lewis v. State, 412 S.W.3d 794, 802 (Tex.

App.—Amarillo 2013, no pet.) (without citing McNeely

or discussing any case-specific facts influencing ability to

timely obtain warrant, holding that officer “needed to take

prompt action to ascertain appellant’s blood-alcohol level”

and exigency existed to support warrantless arrest under

Article 14.03(a)(1)).

Here, the State does not argue that the dissipation of

alcohol provided the necessary exigency, either per se or

based on the particular facts of McGuire’s arrest. In fact,

the State’s position is that no exigency requirement exists

at all. At oral argument, the State explained that it reads

Minassian to say that no exigency is required under Article

14.03(a)(1). But the State misreads the case’s holding.

This Court stated, in Minassian, that proof of exigency

circumstances is not required “to pass constitutional

muster” in the context of a warrantless felony arrest made

39a

Appendix D

in a public place but that more had to be considered to

review the lawfulness of the arrest at issue because Article

14.03(a)(1) additionally “requires exigent circumstances to

make a warrantless arrest premised on suspicious activity

in a suspicious place.” 490 S.W.3d at 639 (citing Swain, 181

S.W.3d at 366). Proof of exigent circumstances is required

when the State relies on Article 14.03(a)(1) to justify a

warrantless arrest. Id.

The State had the burden at the 2018 suppression

hearing to establish exigent circumstances to permit the

warrantless arrest of McGuire, but it did not.

The State Made No Showing of Exigency;

Therefore, the Trial Court Did Not Err in

Granting Motion to Suppress

In its appellate brief, the State presents three

arguments why the trial court erred in granting McGuire’s

suppression motion; however, the State fails to point to

any evidence of exigent circumstances. This is consistent

with the State’s presentation of the issues to the trial

court. Neither the State’s response to McGuire’s motion

to suppress nor its arguments at the suppression hearing

addressed exigency.

This failure of evidence provided a basis for the trial

court to grant McGuire’s motion to suppress. On appeal of

the grant of a motion to suppress, “[w]e must review the

record to determine if there is any valid basis upon which

to affirm the [trial] court’s ruling.” Brabson, 899 S.W.2d

at 745-46. Because the State did not meet its evidentiary

burden to bring McGuire’s arrest within the sole warrant

40a

Appendix D

exception on which it relied, we must affirm the trial court’s

order granting the motion to suppress. The dissent’s

approach fails to hold the State to its evidentiary burden

or follow this well-established standard of review.

Even if the State had sought to meet its burden to

establish an exigency, there is no basis on which the trial

court could have found a per se or case-specific exigency on

this record. The State could not rely on McGuire’s alleged

intoxication to argue a per se exigency because, after

McNeely, there is no per se exigency for dissipation of alcohol

in a suspect’s blood. 569 U.S. at 164; see Donohoo, 2016 Tex.

App. LEXIS 6558, 2016 WL 3442258, at *6 (relying on

McNeely to reject State’s argument for warrantless arrest

under Article 14.03(a)(1) based on dissipation of suspect’s

blood-alcohol level, given that officers had testified they

never sought warrant); see also Bell, 2019 Tex. App. LEXIS

5934, 2019 WL 3024481, at *2 n.2 (in connection with

holding that, under Swain, exigent circumstances must be

shown, noting that the United States Supreme Court held,

in McNeely, that “the natural metabolization of alcohol in

the bloodstream does not present a per se exigency but

must be determined on a case-by-case basis on the totality

of the circumstances.”).

Neither do the case-specific facts establish an exigency

to successfully challenge the suppression order. McGuire

called his mother from the Shell gas station before he

interacted with any police officers, and she drove to the gas

station to wait with him. She was available to drive him,

should he have been allowed to leave, which meant there

was no danger of subsequent driving while intoxicated.

Cf. York v. State, 342 S.W.3d 528, 536-37 (Tex. Crim. App.

41a

Appendix D

2011) (evidence of defendant’s running vehicle warranted

reasonable belief that, if defendant were intoxicated, he

would eventually endanger himself and others when he

drove vehicle home). Moreover, McGuire waited at the

gas station for law enforcement to arrive and agreed to

ride with the officers to the location where Stidman’s body

was located. There was no evidence that, after the police

engaged McGuire, they held any concern that McGuire

would attempt to flee. Cf. Villalobos v. State, No. 14-1600593-CR, 2018 Tex. App. LEXIS 3577, 2018 WL 2307740,

at *6 (Tex. App.—Houston [14th Dist.] May 22, 2018, pet.

ref’d) (mem. op., not designated for publication) (concluding

that Article 14.03(a)(1) requirements were met on evidence

driver “needed to be detained because he had fled scene

of accident”).

Without any evidence or argument that an exigency

existed, we must conclude that the State failed to meet its

burden to establish that McGuire’s warrantless arrest was

authorized under Article 14.03(a)(1), on which the State

relied. See Brabson, 899 S.W.2d at 745-46; cf. Buchanan

v. State, 175 S.W.3d 868, 876 (Tex. App.—Texarkana

2005) (concluding that State failed to establish exigent

circumstances to support warrantless arrest under Article

14.03(a)(1) because there was no evidence suspect was

going to escape or that urgency existed, and stating, “We

cannot interpret Article 14.03(a)(1) to be so encompassing

that it swallows the general rule that a valid arrest should

be based on an arrest warrant.”), rev’d on waiver grounds,

207 S.W.3d 772 (Tex. Crim. App. 2006).

Accordingly, we conclude that the trial court did not

err in granting McGuire’s motion to suppress. See Laney,

42a

Appendix D

117 S.W.3d at 857 (stating that ruling on motion to suppress

must be upheld if legally correct even if trial court did not

present same basis in its ruling). In light of our holding,

we do not reach any other issues raised in the State’s brief.

Response to Dissent

The dissent addresses three issues that require a

response: whether Article 14.03 requires a showing of

exigency, whose burden it is to make that showing, and

whether certain facts or circumstances satisfy that burden

under a per se or fact-specific analysis.

A. Article 14.03 requires a showing of exigency

The dissent presents the current state of law on

exigency in the context of a warrantless arrest as though

a turn of phrase has been frivolously used and then given

unintended weight. Dissenting Op. at *10 (after determining

that “courts have implied an exigency requirement from

a sentence in” Swain v. State, openly doubting whether

Texas law actually does “require exigent circumstances

in all cases under article 14.03(a)(1)”). But there can be no

question that Texas law requires a showing of exigency

when relying on this warrant exception. The Court of

Criminal Appeals has expressly stated—twice—that a

showing of exigency is part of the proof necessary under

Article 14.03(a)(1). See Gallups, 151 S.W.3d at 202; Swain,

181 S.W.3d at 366-67. Both opinions show the deliberative

basis for the statement of law, citing to a 2003 concurrence

in another Court of Criminal Appeals opinion, Dyar, 125

S.W.3d at 468-71 (Cochran, J., concurring).

43a

Appendix D

The Dyar concurrence discussed the historical context

of Article 14.03(a)(1) and the ill fit between the terms of

the 150-year-old statute and modern Fourth Amendment

search-and-seizure law. Id. The provision now found in

Article 14.03, when implemented, sanctioned the arrest

of “suspicious people” who “might soon commit” breaches

of the peace such as “drunks in the bar” who “had not yet

breached the peace” but seemed like they might. Id. at 469.

Officials relied on the law to “arrest, escort out of town,

or generally hassle those who were not welcome.” Id. at

470. The concurrence noted that application of the statute

in such a manner “would not pass constitutional muster

today” and would, instead, be considered “constitutionally

offensive.” Id. at 469-70.

The Dyar concurrence stated that courts might best

harmonize the “original intent of the pre-Civil War statute”

and “current constitutional” norms and protections by using

“the organizational principle of exigent circumstances”

to analyze when the requirements of Article 14.03 are

satisfied. Id. at 470 (explaining that an exigency-based

analysis would “make some sense out of the ‘suspicious

places’ language”); see id. at 470 n.13 (quoting Gerald S.

Reamey’s Arrests in Texas’s “Suspicious Places”: A Rule

in Search of Reason, 31 Tex. Tech L.Rev. 931, 980 (2000)). 3

3. An excerpt of the law review quote reads as follows:

Necessity is the guiding principle in interpreting

warrant exceptions. Therefore, not every crime scene

qualifies as a suspicious place excusing a warrant. The

correct question in crime scene cases is not whether

an offense was committed at the place where the

44a

Appendix D

The Dyar concurrence explained how an exigency

framework would guide the Article 14.03 analysis while

adhering to Fourth Amendment jurisprudence:

[If] police have probable cause to believe that

person “X” has committed a felony or breach of

the peace and he is found in “Y” location under

“suspicious circumstances” and there is no time

to obtain a warrant because: 1) the person will

not otherwise remain at “Y” location; 2) the

evidence of the crime will otherwise disappear;

or 3) the person poses a continuing present

threat to others, then police may arrest “X”

without a warrant. On the other hand, if there

are no exigent circumstances that call for

immediate action or detention by the police,

article 14.03(a)(1) cannot be used to justify a

warrantless arrest . . . . [T]his construction best

adheres to the legitimate historical purpose and

scope of the statute . . [and] also complies with

Fourth Amendment jurisprudence.

Id. at 471.

suspect is found, but whether some reason exists not to

obtain prior judicial approval for the arrest. A certain

level of exigency usually accompanies the bringing

together of a suspect, criminal evidence (which may

be evanescent), and probable cause in the place where

the offense occurred.

Dyar, 125 S.W.3d at 470 n.13 (Cochran, J., concurring) (quoting

Gerald S. Reamey, Arrests in Texas’s “Suspicious Places”: A

Rule in Search of Reason, 31 Tex. Tech L.Rev. 931, 980 (2000)).

45a

Appendix D

The concurrence’s framework was adopted by a

majority of the Court of Criminal Appeals one year later

in Gallups. 151 S.W.3d at 202 (citing the Dyar concurrence

and requiring a showing that arrestee was in suspicious

place and that exigent circumstances existed to justify

immediate arrest under Article 14.03(a)(1)). The following

year, the Court again expressly stated that Article 14.03(a)

(1) requires a showing that exigent circumstances existed.

Swain, 181 S.W.3d at 366-67 (majority opinion adopted

by seven judges with two others concurring, citing Dyar

concurrence and requiring showing of exigency). In light

of this trio of Court of Criminal Appeals cases, there can

be no doubt that binding precedent requires a showing of

exigency when the State is relying on Article 14.03(a)(1).

See id.; Gallups, 151 S.W.3d at 202.

The dissent remains doubtful, citing post-Swain cases

that do not include an exigency analysis. See Dissent Op. at

*10-11 & n.3. Four of those cases are readily distinguishable

in that none involved the State arguing the Article 14.03(a)

(1) exception in response to a motion to suppress. For

example, in Griffin v. State, No. 03-15-00398-CR, 2017 Tex.

App. LEXIS 4589, 2017 WL 2229869 (Tex. App.—Austin

May 19, 2017, pet. ref’d) (mem. op., not designated for

publication), the appellate issue was a claim of ineffective

assistance of counsel based on a failure to ever move to

suppress evidence. 2017 Tex. App. LEXIS 4589, [WL] at *5.

The appellate court affirmed on that issue with alternative

holdings: first, there was a strategic reason for counsel to

not seek exclusion of the evidence, and, second, the evidence

was not subject to exclusion because the arrestee had just

assaulted a public official and was acting belligerently and

46a

Appendix D

aggressively to the arresting officer, thereby permitting a

warrantless arrest under Article 14.03(a)(1). 2017 Tex. App.

LEXIS 4589, [WL] at *6. True, the ineffective-assistanceof-counsel opinion did not discuss the exigency requirement.

But, the opinion amply described the arrestee’s agitated

and aggressive state, which would have warranted a belief

by the officer that an arrest was necessary to prevent

physical harm, and the opinion cited approvingly other

cases that did discuss the exigency requirement. See id.

(citing Dyar, Swain, and Cook v. State, 509 S.W.3d 591, 604

(Tex. App.—Fort Worth 2016, no pet.)); see also Dyar, 125

S.W.3d at 471 (Cochran, J., concurring) (discussing what

would constitute exigency in context of Article 14.03(a)(1)).

Neither Griffin nor any other case cited in the dissenting

opinion calls into question the Court of Criminal Appeals’s

direct statement of law that evidence of exigency is required

under Article 14.03(a)(1).

B. The State has the burden to show an exigency

It is the State’s burden, when arresting without a

warrant, to prove that its actions fell within one of the

statutory warrantless-arrest exceptions. See Fry v. State,

639 S.W.2d 463, 467 (Tex. Crim. App. 1982); cf. Gutierrez

v. State, 221 S.W.3d 680, 685 (Tex. Crim. App. 2007)

(in warrantless-search context, stating “the warrant

requirement is not lightly set aside, and the State shoulders

the burden to prove that an exception to the warrant

requirement applies”). It is not the Court’s role to scour

the record for exigent or quasi-exigent circumstances.

See Fry, 639 S.W.2d at 467 (rejecting argument that

testimony supported finding of exigency for warrantless

47a

Appendix D

arrest because testimony was “ambiguous at best” and,

therefore, did not meet State’s burden). When the State

argues only one warrant exception, yet fails to meet the

evidentiary burden to establish that exception, and the trial

court grants the motion to suppress, this Court is bound

to affirm the trial court’s grant of a motion to suppress.

See Brabson, 899 S.W.2d at 745-46 (“We must review the

record to determine if there is any valid basis upon which to

affirm the [trial] court’s ruling.”); Donohoo, 2016 Tex. App.

LEXIS 6558, 2016 WL 3442258, at *6 (affirming trial court

order granting motion to suppress because State failed to

present evidence of exigency).

C. Facts and circumstances identified in the dissent

do not satisfy the State’s burden under a per se or

fact-specific analysis

Without holding the State to its evidentiary burden, the

dissent looks to the record and identifies three facts that,

in the dissent’s view, would suffice to show an exigency: (1)

McGuire having “shown his willingness to flee,” (2) a need

to preserve evidence in the form of the motorcycle bumper

lodged in McGuire’s truck, and (3) McGuire’s suspected

intoxication. Even if a review of the record for exigency

were permitted without the State making any showing in

support of its burden, none of the three arguments meets

the threshold.

Fist, evidence that McGuire might have fled the scene

if not arrested is ambiguous at best, and ambiguity in this

context is resolved against the State. Fry, 639 S.W.2d at

467. Yes, this Court has held that legally sufficient evidence

48a

Appendix D

existed to support the jury’s determination that McGuire

failed to comply with the technical requirements of the stopand-render-aid statute when he left the scene of impact and

drove to the gas station. See McGuire v. State, 493 S.W.3d

177, 204-07 (Tex. App.—Houston [1st Dist.] 2016, pet. ref’d),

cert. denied 137 S. Ct. 2188, 198 L. Ed. 2d 255 (2017) (noting

McGuire did not get out of his truck to determine whether

an injured person might be near the known spot of impact

or call emergency services; he, instead, went to a gas station

and waited for police to come to him). But that evidence

cannot reasonably be argued to suggest that McGuire was

likely to flee from police. He went directly to a gas station,

called police personnel, waited for police to come to him,

and called his mother to bear witness to the entire episode.

Once the police arrived, he voluntarily answered questions

and left with them. Speculation that McGuire might have

called his mother and the police to his location only to flee

once they arrived does not show exigency. Moreover, had

the State chosen to make this argument, itself, its most

likely vehicle would have been Article 14.04, not 14.03,

because Article 14.04 permits the warrantless arrest of

suspected felons who are “about to escape.” See Tex. Code

Crim. Proc. art. 14.04.

Second, the police had more options than choosing

to arrest McGuire or to allow the possible destruction

of evidence on his truck: the State could have seized the

truck. See Dismukes v. State, 919 S.W.2d 887, 893-94 (Tex.

App.—Beaumont 1996, pet. ref’d) (with proper showing,

including existence of probable cause, police may seize

vehicle without warrant and hold the vehicle “for whatever

period is necessary to obtain a warrant for the search,”

detached from any arrest).

49a

Appendix D

Third, suspected intoxication and a related need to

determine a suspect’s blood-alcohol content no longer

provide a per se exigency. McNeely, 569 U.S. at 141; see

McGuire, 493 S.W.3d at 199. The dissent argues that

McNeely’s no-per-se-exigency holding is limited to invasive

searches to obtain a suspect’s blood and does not apply

to arrests. This position must be rejected in light of the

rationale provided in McNeely, the broader protections

provided by the Texas warrantless-arrest statute beyond

federal constitutional protections, and the perverse results

that would follow under the dissent’s construction.

The dissent posits that the need to expeditiously

draw a suspect’s blood to determine its blood-alcohol

content could supply a per se exigency to arrest a person

without approaching the judiciary for an arrest warrant,

even though, under McNeely, the police would not have

automatic legal authority to then draw the suspect’s blood

without approaching that same judicial actor for a search

warrant (or establishing case-specific exigency). If an

articulated need does not automatically excuse the State

from approaching the judiciary to obtain a search warrant,

as McNeely holds, it cannot follow that the same need

would automatically excuse the State from approaching

the judiciary for an arrest warrant, given that the State

would be required to approach the judiciary anyway, in the

interim as it held the suspect in custody.

The State should not be permitted to invoke a particular

assertion of exigency to invariably allow a predicate step

to a desired law-enforcement activity when the United

States Supreme Court has explicitly prohibited that same

50a

Appendix D

exigency from per se authorizing the desired activity. Cf.

State v. Villarreal, 475 S.W.3d 784, 808 (Tex. Crim. App.

2014) (rejecting State’s argument that dissipation of alcohol

can provide per se exigency for search incident to arrest

when it cannot supply per se exigency for search, itself,

under McNeely).

The incongruence of recognizing a per se exigency

for a predicate step when it cannot authorize the actual

police activity that is the focus of the encounter cannot be

explained away under a theory that the sanctity of one’s

freedom from searches and from arrests are markedly

different in a constitutional sense. See Dissent Op. at *16-17.

The requirement of a search warrant and the requirement

of an arrest warrant do not derive from distinct areas of

law with different standards or concepts of exigency—they

both derive from the Fourth Amendment. As the United

States Supreme Court has affirmed, the principles in the

Fourth Amendment “apply to all invasions on the part of

the government and its employees of the sanctity of a man’s

home and the privacies of life.” Boyd v. United States, 116

U.S. 616, 630, 6 S. Ct. 524, 29 L. Ed. 746 (1886); see Crane

v. State, 786 S.W.2d 338, 346 (Tex. Crim. App. 1990) (“In

order for a warrantless arrest or search to be justified,

the State must show the existence of probable cause at

the time the arrest or search was made and the existence

of circumstances which made the procuring of a warrant

impracticable.”). If dissipating blood-alcohol levels are not

considered a per se exigency in the search context, they are

not a per se exigency to justify a warrantless arrest for the

purpose of conducting a search. To treat arrests differently

than searches in this context would allow the government to

51a

Appendix D

subvert McNeely. It also would obviate the extra protection

the Article 14.03(a)(1) exigent-circumstances requirement

affords the public against unreasonable governmental

intrusion beyond Fourth Amendment protections.

Conclusion

We affirm the trial court’s order granting McGuire’s

motion to suppress.

Sarah Beth Landau

Justice

Panel consists of Justices Keyes, Higley, and Landau.

Justice Keyes, dissenting.

Publish. Tex. R. A pp. P. 47.2(b).

52a

E

APPENDIX E — Appendix

DISSENTING

OPINION OF

THE COURT OF APPEALS OF TEXAS, FIRST

DISTRICT, HOUSTON, DATED AUGUST 29, 2019

IN THE COURT OF APPEALS OF TEXAS

FIRST DISTRICT, HOUSTON

NO. 01-18-00146-CR

THE STATE OF TEXAS,

Appellant,

v.

SEAN MICHAEL MCGUIRE,

Appellee.

August 29, 2019, Opinion Issued

On Appeal from the 268th District Court

Fort Bend County, Texas

Trial Court Case No. 10-DCR-055898

DISSENTING OPINION

I respectfully dissent. I would hold that the trial

court abused its discretion in granting Sean McGuire’s

motion to suppress the evidence obtained as a result of his

warrantless arrest, effectively declaring his arrest illegal.

Based solely on review of the cold reporter’s record

from an evidentiary suppression hearing held two years

53a

Appendix E

earlier, the trial court, on remand, reached the opposite

conclusion of the original trial judge who had presided

over the hearing. The trial court selectively cited facts

from that record, disregarding important contradictory

facts, to draw the incorrect legal conclusions that the

officers lacked probable cause and that the suspicious place

exception to the warrant requirement did not apply. And

the majority opinion affirms by incorrectly presuming that

the United States Supreme Court’s holding in Missouri

v. McNeely extends beyond warrantless searches to draw

blood into the distinct domain of warrantless arrests. See

569 U.S. 141, 145, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013).

In so doing, it ignores this Court’s own binding precedent

holding that the need to preserve evidence constitutes an

exigent circumstance under the suspicious place exception

to the warrant requirement.

Suspicious Place Exception to Warrant Requirement

Warrantless arrests are authorized only in limited

circumstances outlined primarily in Chapter 14 of the

Texas Code of Criminal Procedure. Swain v. State, 181

S.W.3d 359, 366 (Tex. Crim. App. 2005). Here, the State

relies on the “suspicious place” exception, codified in

article 14.03(a)(1), authorizing the warrantless arrest of an

individual found in a suspicious place under circumstances

reasonably showing he committed a felony or a breach of

the peace. See Tex. Code Crim. Proc. A nn. art. 14.03(a)(1).1

1. McGuire was or ig inally charged w ith the felony of

intoxication manslaughter. See T ex . P enal Code A nn. § 49.08(b)

(stating that offense of intoxication manslaughter is second-degree

felony). He was later charged with felony murder, see id. § 19.02(b)

54a

Appendix E

The Court of Criminal Appeals has held that “the test

under [a]rticle 14.03(a)(1) is a totality of the circumstances

test. First, probable cause that the defendant committed

a crime must be found and second, the defendant must be

found in a ‘suspicious place.’” Dyar v. State, 125 S.W.3d

460, 468 (Tex. Crim. App. 2003); Lewis v. State, 412 S.W.3d

794, 801 (Tex. App.—Amarillo 2013, no pet.). I would hold

that the State met this test and established that McGuire’s

arrest was justifiable under the suspicious place exception

to the warrant requirement.

A. Probable Cause

Probable cause for a warrantless arrest exists when

the arresting officer possesses reasonably trustworthy

information sufficient to warrant a reasonable belief that

an offense has been or is being committed. See Amador

v. State, 275 S.W.3d 872, 878 (Tex. Crim. App. 2009).

The record establishes the following:

At approximately 12:45 a.m. on August 2, 2010,

Trooper Tomlin reported to the scene of a fatality crash,

which he was told by dispatch involved a motorcycle that

(3), and failure to stop and render aid, see Tex. Transp. Code A nn.

§ 550.021 (stating that failure to stop and render aid is felony offense).

In a previous opinion, this Court affirmed his conviction for failure to

stop and render aid, vacated his conviction for felony murder because

of the admission of an illegal blood draw, and remanded for further

proceedings. See McGuire v. State, 493 S.W.3d 177, 199, 208 (Tex.

App.—Houston [1st Dist.] 2016, pet. ref’d), cert. denied, 137 S. Ct.

2188, 198 L. Ed. 2d 255 (2017).

55a

Appendix E

had been hit and dragged 800 feet, “from Brazos Town

Center to the intersection of 2977.”

Around the same time, McGuire called his mother

and two police acquaintances, who in turn called law

enforcement to report that McGuire had hit something

in the road and was waiting at a nearby Shell station for

law enforcement to arrive.

At the scene of the accident, Trooper Tomlin saw the

complainant’s body on the side of the road. Tomlin was

then informed that the driver of the vehicle that had hit

the complainant’s motorcycle was across the highway at

a Shell gas station.

Trooper Tomlin was the first to arrive at the Shell

station, at approximately 12:50. Minutes later, Trooper

Wiles, who had heard over the police radio that there had

been a fatal accident and that the suspected driver was at

the Shell station, joined him there, where the two troopers

encountered McGuire.

McGuire stated that he had been driving his truck,

that he had hit something, and that his wife, who was in

the truck with him, told him that he had hit a person.

Trooper Wiles observed that McGuire’s truck had “a

piece of metal stuck inside the grille with some motor oil on

it” that “appeared to be the rear fender of the motorcycle,”

but he “didn’t seem to know where it came from.”

56a

Appendix E

Due to “[a] strong order of alcoholic beverage that

[Trooper Wiles] smelled [on McGuire’s] person and

breath,” his bloodshot, glassy eyes, and the “slight dazed

look on his face,” Wiles believed McGuire was intoxicated.

Wiles asked McGuire if he was willing to perform a field

sobriety test, and McGuire refused. Trooper Wiles then

drove McGuire to the scene of the accident. Wiles testified,

and video of the crime scene showed, that when McGuire

saw the motorcycle, “he covered his face and started

supposedly crying and said that he was sorry.”

I would hold that this information was sufficient to

warrant a reasonable belief that McGuire had committed

a crime. 2 See, e.g., Dyar, 125 S.W.3d at 468 (holding

arresting officer had probable cause to believe appellant

had committed DWI; officer found appellant at hospital

after having been informed that driver in one-car accident

was taken to hospital, appellant had slurred speech, red

glassy eyes, and strong smell of alcohol, and appellant

admitted to drinking and driving); Lewis, 412 S.W.3d at

801-02 (holding arresting officer had probable cause to

believe appellant had committed DWI based in part on

appellant’s flight from scene of accident, officer’s detection

of odor of alcohol emanating from appellant, appellant’s

highly emotional state, and appellant’s admission that she

“had too much to drink”); see also Coronado v. State, No.

01-99-00912-CR, 2000 Tex. App. LEXIS 3777, 2000 WL

730682, at *2-3 (Tex. App.—Houston [1st Dist.] June 8,

2000, pet. ref’d) (not designated for publication) (holding

officer had probable cause to arrest appellant after he

2. The majority opinion does not address probable cause.

57a

Appendix E

received information from other officers that appellant

was driver of one of vehicles in fatality accident and officer

noticed appellant had strong odor of alcohol, slurred

speech, and glassy eyes).

B. Suspicious Place

I would further hold that the State proved that the

Shell station where Troopers Tomlin and Wiles first

encountered McGuire was a suspicious place and that

the trial court erred in reaching the opposite conclusion

because that conclusion was not supported by the facts

and it failed to consider the totality of the circumstances.

Relevant to the question whether McGuire was found

at a suspicious place, the trial court found that Troopers

Tomlin and Wiles testified that there was nothing

suspicious about the location where they encountered

McGuire and that McGuire was not acting in a suspicious

manner. These findings are wholly inadequate to support

the legal conclusion that the Shell station was not a

suspicious place under the circumstances known to the

troopers at that time. Cf. Villalobos v. State, No. 14-1600593-CR, 2018 Tex. App. LEXIS 3577, 2018 WL 2307740,

at *6 (Tex. App.—Houston [14th Dist.] May 22, 2018, pet.

ref’d) (not designated for publication) (rejecting argument

that warrantless arrest was illegal because officer testified

that it was not suspicious for defendant to stay near his

damaged vehicle after accident). It appears the trial court

took the troopers’ testimony as a legal conclusion, and in

so doing, did not follow the well-established law that the

suspicious-place inquiry requires more than evaluating

58a

Appendix E

whether a particular place, on its own and without context,

is suspicious.

“Few places, if any, are inherently suspicious. The

determination of whether a place is suspicious requires a

highly fact-specific analysis.” Lewis, 412 S.W.3d at 802.

As the Court of Criminal Appeals has explained, under

article 14.03(a)(1),

Any place may become suspicious when an

individual at the location and the accompanying

circumstances raise a reasonable belief that

the individual committed a crime and exigent

circumstances call for immediate action or

detention by the police.

Swain, 181 S.W.3d at 366 (citations omitted).

Here, the trial court did not make any fact-specific

findings beyond the officers’ testimony that the Shell

station, in and of itself, was not a suspicious place and

that McGuire was not acting suspiciously when they

encountered him there. In concluding that “[t]here is no

evidence that the place where [McGuire] was arrested

was a suspicious place pursuant to Texas Code of

Criminal Procedure Article 14.03(a)(1),” the trial court

made no findings with respect to “the accompanying

circumstances,” which here clearly raised a reasonable

belief that McGuire had committed a crime. Id.

In determining whether to characterize a place as

suspicious, the Court of Criminal Appeals has stated that

59a

Appendix E

the “only . . . factor [that] seems to be constant throughout

the case law” is that “[t]he time frame between the crime

and the apprehension of a suspect in a suspicious place is

short.” Dyar, 125 S.W.3d at 468. Here, McGuire was found

at the Shell station only minutes after the crash occurred.

But this fact pales in significance in comparison to other

circumstances that surrounded McGuire’s presence at

the Shell station, including the facts that he called police

acquaintances to report that he had hit something in the

road just across from the Shell station, where he then

waited for law enforcement to arrive; upon his arrival at

the scene of the accident, Trooper Tomlin observed the

complainant’s dead body on the side of the road; at the

Shell station, Trooper Wiles observed “a piece of metal

stuck inside the grille [of McGuire’s truck] with some

motor oil on it” that “appeared to be the rear fender

of the motorcycle”; and McGuire, who showed signs of

intoxication, stated to the troopers that he believed he had

hit something and that his wife told him it was a person.

On this record, I would hold that the trial court erred

in concluding that the Shell station was not a suspicious

place under article 14.03(a)(1). See, e.g., Villalobos, 2018

Tex. App. LEXIS 3577, 2018 WL 2307740, at *6 (“[T]he

area where appellant was found was a suspicious place

because the police reasonably could have believed, based

on the surrounding circumstances [including facts that

appellant was found shortly after accident having fled

scene, his vehicle was missing wheel that matched model of

wheel and other debris found at accident site, he displayed

signs of intoxication, and he admitted he had been involved

in accident after leaving bar], that appellant drove while

60a

Appendix E

intoxicated and was involved in a recent accident nearby

and needed to be detained because he had fled the scene

of that accident.”); Polly v. State, 533 S.W.3d 439, 443

(Tex. App.—San Antonio 2016, no pet.) (holding scene of

hit-and-run accident was suspicious place where one hour

after accident appellant returned to scene and officer could

have reasonably believed appellant committed offense of

driving while intoxicated).

Turning to the focus of the majority opinion—exigent

circumstances—I do not agree that a strict showing of

exigency is always necessary, particularly in hit-andrun cases, where the suspect has shown his willingness

to flee with evidence of not only his intoxication but also

of the crash (such as the bumper of the complainant’s

motorcycle embedded in the grille of McGuire’s truck).

Cf. Cribley v. State, No. 04-04-00047-CR, 2005 Tex. App.

LEXIS 6078, 2005 WL 1812585, at *2 (Tex. App.—San

Antonio Aug. 3, 2005, no pet.) (mem. op., not designated

for publication) (holding, without mention of exigency,

that appellant’s home where she went shortly after fleeing

scene of accident was suspicious place).

The statutory language of article 14.03(a)(1) does not

mention exigency. It states only that a warrant is not

necessary to arrest

persons found in suspicious places and under

circumstances which reasonably show that

such persons have been guilty of some felony,

violation of Title 9, Chapter 42, Penal Code,

breach of the peace, or offense under Section

61a

Appendix E

49.02, Penal Code, or threaten, or are about to

commit some offense against the laws[.]

See Tex. Code Crim. Proc. A nn. art. 14.03(a)(1).

Nevertheless, some courts have implied an exigency

requirement from a sentence in the Court of Criminal

Appeals’ opinion in Swain: “Any ‘place’ may become

suspicious when a person at that location and the

accompanying circumstances raise a reasonable belief

that the person has committed a crime and exigent

circumstances call for immediate action or detention by

police.” See 181 S.W.3d at 366. I do not read this to require

exigent circumstances in all cases under article 14.03(a)

(1). While exigency does ordinarily play a prominent role

in the analysis, it is but one of innumerable circumstances

that may present for consideration in assessing the totality

of the circumstances.

Notably, many post-Swain cases have addressed

the suspicious place exception without ever mentioning

exigency, including at least two from this Court. See, e.g.,

Rodriguez-Rubio v. State, No. 01-17-00463-CR, 2018 Tex.

App. LEXIS 9479, 2018 WL 6061306, at *4 (Tex. App.—

Houston [1st Dist.] Nov. 20, 2018, no pet.) (mem. op., not

designated for publication) (“Although an apartment

complex is not an inherently suspicious place, the fact

that the GPS locator in the stolen cell phone showed that

the phone and appellant, who matched the witnesses’

description, were in the same location, rendered this

apartment complex a ‘suspicious place.’ The ‘pinging’ of the

stolen cell phone at the apartment complex tied appellant

62a

Appendix E

to the crime scene.”); Contreras v. State, No. 01-08-00424CR, 2009 Tex. App. LEXIS 6284, 2009 WL 2461483, at *3

(Tex. App.—Houston [1st Dist.] Aug. 13, 2009, pet. ref’d)

(mem. op., not designated for publication) (holding that

appellant, who was found at scene of crime searching for

something under bushes and cars, was found in suspicious

place where police were aware that robbery and shooting

suspects had lost firearm in course of committing crime). 3

3. See also, e.g., Gonzalez v. State, No. 08-14-00175-CR, 2017

Tex. App. LEXIS 5199, 2017 WL 2464690, at *6 (Tex. App.—El Paso

June 7, 2017, no pet.) (not designated for publication) (holding that

appellant’s location near ditch where his truck had landed tail-up

after accident was suspicious place where appellant showed signs of

intoxication); Griffin v. State, No. 03-15-00398-CR, 2017 Tex. App.

LEXIS 4589, 2017 WL 2229869, at *6 (Tex. App.—Austin May 19,

2017, pet. ref’d) (mem. op., not designated for publication) (stating that

warrantless arrest for assault of public servant was justified under

suspicious place exception based on: (1) short distance between scene

of assault and appellant’s residence; (2) short amount of time between

report of assault and appellant’s apprehension at his residence; (3)

appellant’s signs of intoxication, refusal to cooperate, and belligerent

behavior; (4) complainant’s statements to officers describing assault

and identifying appellant as assailant; and (5) physical evidence

tending to corroborate complainant’s account); Patel v. State, No.

08-13-00311-CR, 2015 Tex. App. LEXIS 10933, 2015 WL 6437413,

at *5 (Tex. App.—El Paso Oct. 23, 2015, no pet.) (not designated for

publication) (holding that, under totality of circumstances, location

where appellant, who showed signs of intoxication, was found near

single-car accident in which his vehicle left road, traveled thirty

yards down embankment, and landed in ditch was suspicious place);

Gary v. State, No. 13-12-00266-CR, 2013 Tex. App. LEXIS 1135, 2013

WL 485793, at *4 (Tex. App.—Corpus Christi—Edinburg Feb. 7,

2013, pet. ref’d) (mem. op., not designated for publication) (holding

that appellant’s car in parking lot of pub was suspicious place where

63a

Appendix E

In this connection, I disagree with the majority’s

conclusion that the State forfeited its argument that

the circumstances in this case were exigent. The State

asserted in the trial court and on appeal that McGuire’s

warrantless arrest was justified under article 14.03(a)

(1), which, again, makes no mention of an exigency

requirement in providing that a peace officer may make

a warrantless arrest of a person found in a suspicious

place. At no stage of this case did McGuire argue that the

officer observed him repeatedly come and go from his car over short

period of time because regular patron would have no reason to do

so); Owen v. State, No. 13-10-00417-CR, 2011 Tex. App. LEXIS 9016,

2011 WL 5515548, at *5 (Tex. App.—Corpus Christi—Edinburg

Nov. 10, 2011, pet. ref’d) (mem. op., not designated for publication)

(holding that truck was suspicious place because it was parked in

otherwise-vacant high school stadium parking lot in middle of night

in January in close proximity to scene of burglary, man meeting

appellant’s description had recently committed separate burglary,

and officer apprehended appellant thirty minutes after being

dispatched to scene); Perez v. State, No. 10-09-00022-CR, 2010 Tex.

App. LEXIS 6984, 2010 WL 3342009, at *2-3 (Tex. App.—Waco Aug.

25, 2010, no pet.) (mem. op., not designated for publication) (holding

that residence where appellant, who admitted to police he had been

drinking and was involved in traffic accident, was found asleep was

suspicious place); State v. Drewy, No. 03-08-00169-CR, 2008 Tex.

App. LEXIS 8140, 2008 WL 4682441, at *4 (Tex. App.—Austin Oct.

23, 2008, no pet.) (mem. op., not designated for publication) (holding

that appellant, who showed signs of intoxication and was combative,

was in suspicious place as he stood near his disabled vehicle); Hollis v.

State, 219 S.W.3d 446, 460 (Tex. App.—Austin 2007, no pet.) (holding

that dance hall where appellant was found was suspicious place

because it emanated strong odor of ether characteristic of “meth

lab,” was located in secluded area, and had no legitimate commercial

or residential purposes).

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Appendix E

State failed to prove exigent circumstances—indeed the

phrase does not appear in his motion to suppress or in the

transcript of the hearing on that motion, nor did he raise

the issue on appeal.4 Further, the State acknowledges

that exigent circumstances may figure into the 14.03(a)(1)

equation, and correctly notes that courts “sometimes use

the term ‘exigent circumstances’ and sometimes not,” and

that warrantless arrests under article 14.03(a)(1) “on very

similar facts to the facts in this case have been routinely

upheld by courts all over Texas.”

In my opinion, it would be a gross distortion of the

Rules of Appellate Procedure to affirm the trial court’s

suppression of evidence obtained from a warrantless

arrest that the record shows to have been justified under

article 14.03(a)(1), for the State’s purported failure to

preserve argument in the trial court on, or to adequately

address on appeal, a so-called element of the statute

that is absent from its express terms, and that McGuire

never brought to the trial court’s attention. See State v.

Allen, 53 S.W.3d 731, 733 (Tex. App.—Houston [1st Dist.]

2001, no pet.) (concluding theories not presented to trial

court are not “applicable to the case” and thus do not fall

under traditional rule that reviewing court should affirm

if trial court’s decision is correct on any theory of law

applicable to case); cf. Douds v. State, 472 S.W.3d 670,

674 (Tex. Crim. App. 2015) (concluding, under Texas Rule

of Appellate Procedure 33.1(a), that appellant failed to

4. McGuire did not argue that the State was required to

establish exigent circumstances to justify his warrantless arrest

under the suspicious place exception until this Court requested

supplemental briefing on the subject.

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Appendix E

preserve complaints because “isolated statements globally

asserting that a blood draw was conducted without a

warrant” were not “enough to apprise the trial court that it

must consider whether there were exigent circumstances

to permit the warrantless search”).

Assuming, nevertheless, that there is an exigency

requirement built into the suspicious place exception to

justify a warrantless arrest and that the requirement

applies in this case, I would hold, under Court of Criminal

Appeals precedent, that the need to preserve evidence

of McGuire’s blood alcohol level constituted exigent

circumstances, as did the more general need to preserve

evidence of the crash. See Gallups v. State, 151 S.W.3d

196, 202 (Tex. Crim. App. 2004) (holding appellant’s

warrantless arrest for DWI met exigency requirement

of suspicious place exception because “the circumstances

surrounding appellant’s warrantless home arrest raised a

reasonable belief that appellant had committed a breach

of the peace and that exigent circumstances (the need to

ascertain appellant’s blood-alcohol level) existed to justify

appellant’s immediate arrest”); see also, e.g., Banda v.

State, 317 S.W.3d 903, 912 (Tex. App.—Houston [14th

Dist.] 2010, no pet.) (holding that exigency requirement

for warrantless arrest under suspicious place exception

was met where police could reasonably believe it was

necessary to take prompt action to ascertain appellant’s

blood-alcohol level); see also State v. Wrenn, No. 05-0801114-CR, 2009 Tex. App. LEXIS 5213, 2009 WL 1942183,

at *3 (Tex. App.—Dallas July 8, 2009, no pet.) (mem. op.,

not designated for publication) (holding that necessity of

preserving evidence of DWI suspect’s blood alcohol level

constitutes exigency (citing Gallups, 151 S.W.3d at 202)).

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Appendix E

In holding that the need to preserve evidence of

McGuire’s blood alcohol level did not constitute exigent

circumstances, the majority relies on the United States

Supreme Court’s opinion in McNeely. McNeely held that

the natural metabolization of alcohol in the bloodstream

does not present an exigency justifying a warrantless

blood draw when there is time—as there was here—to

obtain a search warrant. See 569 U.S. at 145, 152. In

relying on McNeely, the majority overlooks an important

distinction: McNeely addressed the exigency required for

a warrantless blood draw, not a warrantless arrest. The

only authority the majority cites to support its expansion

of McNeely into new territory is the unpublished case

State v. Donohoo, in which the San Antonio Court of

Appeals assumed without discussion that McNeely’s

holding regarding warrantless blood draws extends to

warrantless arrests. See No. 04-15-00291-CR, 2016 Tex.

App. LEXIS 6558, 2016 WL 3442258, at *6 (Tex. App.—

San Antonio June 22, 2016, no pet.).

As noted in the majority opinion, other courts of

appeals have reached the opposite conclusion in published

cases, holding, in keeping with Gallups and subsequent

Texas cases, that the exigency requirement for a

warrantless arrest under the suspicious place exception is

met by the need to preserve evidence of a suspect’s blood

alcohol level. See Dansby v. State, 530 S.W.3d 213, 222

(Tex. App.—Tyler 2017, pet. ref’d) (holding that “exigent

circumstances—the need to ascertain Appellant’s alcohol

concentration—existed to justify Appellant’s immediate

arrest” under article 14.03(a)(1)); Lewis, 412 S.W.3d at

802 (holding that officer’s need “to take prompt action

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Appendix E

to ascertain appellant’s blood-alcohol level” satisfied

exigency requirement for warrantless arrest under

Article 14.03(a)(1)).

Minimizing the holdings in these cases, the majority

points out that they do not mention McNeely. I reply that

there is good reason for the omission—McNeely is a blood

draw case; Dansby, Lewis, and the case before us are

all arrest cases. The distinction is critical. As the Court

of Criminal Appeals has explained, “a search [such as a

blood draw] affects a person’s privacy interests, whereas

a seizure [such as an arrest] only affects a person’s

possessory interests and is generally less intrusive than

a search.” Sanchez v. State, 365 S.W.3d 681, 686 (Tex.

Crim. App. 2012). This distinction is perhaps even more

pronounced when the seizure compels a “physical intrusion

beneath [a person]’s skin and into his veins.” See McNeely,

569 U.S. at 148. “Such an invasion of bodily integrity

implicates an individual’s ‘most personal and deep-rooted

expectations of privacy.’” Id. (quoting Winston v. Lee, 470

U.S. 753, 760, 105 S. Ct. 1611, 84 L. Ed. 2d 662 (1985)).

Both Lewis and Dansby (and at least one other postMcNeely case)5 implicitly recognize the crucial distinction

between a warrantless blood draw and a warrantless

arrest—and consequently McNeely’s inapplicability to

the exigency requirement for a warrantless arrest—

and continue to regard the need to preserve the time5. See also Polly v. State, 533 S.W.3d 439, 443 (Tex. App.—San

Antonio 2016, no pet.) (upholding warrantless arrest under article

14.03(a)(1) in part because circumstances called for immediate action

by police to ascertain appellant’s blood alcohol level).

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Appendix E

sensitive evidence of a suspect’s blood alcohol level as

a valid exigency justifying a warrantless arrest. See

Gallups, 151 S.W.3d at 202. And these cases are consistent

with the long-standing broader principle that the need

to preserve any kind of evidence of a crime can be an

exigency justifying a warrantless arrest. For example, in

Minassian v. State, this Court held that that the possibility

of the “immediate erasure of any evidence of wrongdoing

provides the necessary exigency for an immediate arrest.”

See 490 S.W.3d 629, 639 (Tex. App.—Houston [1st Dist.]

2016, no pet.) (citing Coyne v. State, 485 S.W.2d 917, 919

(Tex. Crim. App. 1972)).

Here, the need to preserve evidence of McGuire’s

intoxication before its natural dissipation was not the

only exigency presented: there was also an urgent need

to preserve other evidence. This includes evidence of

the accident—including the fender of the complainant’s

motorcycle lodged in the grille of McGuire’s truck—the

need for which was made immediate by the knowledge

that McGuire had already fled the scene once, when

he continued to drive instead of stopping after having

crashed his truck into the complainant’s motorcycle.

The possibility that McGuire might again flee, taking

with him evidence of the collision in addition to the

blood evidence of his intoxication, established further

exigence. See Swain, 181 S.W.3d at 366-67 (holding that

appellant who admitted to beating victim and leaving her

at remote location was found at suspicious place, where

“[g]iven appellant’s nervous behavior and his admission

that he had been involved in a crime, it was reasonable to

believe that appellant would not remain at the residential

69a

Appendix E

treatment home if the officers left to obtain a warrant”);

Minassian, 490 S.W.3d at 639 (holding that possibility

that suspect would escape and destroy evidence contained

on laptop computers constituted exigent circumstances

under suspicious place exception); cf. Villalobos, 2018

Tex. App. LEXIS 3577, 2018 WL 2307740, at *6 (holding

that appellant’s warrantless arrest was justified under

suspicious place exception where appellant was found near

scene of accident and “needed to be detained because he

had fled the scene of that accident”); Cribley, 2005 Tex.

App. LEXIS 6078, 2005 WL 1812585, at *2 (holding that

warrantless arrest of suspected hit-and-run driver was

justified under suspicious place exception where police

found her at home shortly after she had fled scene). And

this concern would have been heightened by McGuire’s

emotional reaction to seeing the destroyed motorcycle.

In any event, the totality of the circumstances

presented in this case establishes exigence even under

McNeely, which noted that the need to preserve evidence

of a suspect’s blood alcohol level is but one factor to

consider in assessing the totality of the circumstances.

See 569 U.S. at 165 (“[T]he metabolization of alcohol in the

bloodstream and the ensuing loss of evidence are among

the factors that must be considered in deciding whether

a warrant is required.”); id. at 153 (“We do not doubt

that some circumstances will make obtaining a warrant

impractical such that the dissipation of alcohol from the

bloodstream will support an exigency justifying a properly

conducted warrantless blood test.”); see also Weems v.

State, 493 S.W.3d 574, 580-81 (Tex. Crim. App. 2016)

(holding that McNeely does not require courts “to turn a

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Appendix E

blind eye to alcohol’s evanescence and the body’s natural

dissipation of alcohol in [their] calculus of determining

whether exigency existed”; courts still must consider

“alcohol’s natural dissipation over time (and the attendant

evidence destruction) the antagonizing factor central to

law enforcement’s decision whether to seek a warrant or

proceed with a warrantless seizure”).

Indeed, the Court of Criminal Appeals has cautioned

against an approach that would reduce findings of exigency

“to an exceedingly and inappropriately small set of facts”

and thus “defeat a claim of exigency on the basis of a

single circumstance in direct opposition to the totality-ofcircumstances review McNeely requires.” Cole v. State,

490 S.W.3d 918, 926 (Tex. Crim. App. 2016) (holding that

availability of other officers on scene to obtain warrant is

relevant but not sole consideration in exigency analysis

for warrantless blood draw). In addition to immediacy,

the United States Supreme Court has recognized that

a totality of the circumstances analysis of exigency may

include consideration of “the gravity of the underlying

offense for which the arrest is being made.” See Welsh v.

Wisconsin, 466 U.S. 740, 753, 104 S. Ct. 2091, 80 L. Ed.

2d 732 (1984); see also State v. Villarreal, 475 S.W.3d 784,

857 (Tex. Crim. App. 2014) (Yeary, J., dissenting) (noting,

in dissenting to denial of State’s motion for rehearing, that

“as the gravity of the offense increases, so too does the

need to preserve, not just some evidence of intoxication,

but the very best evidence that may reasonably be

obtained”). McGuire stands accused of committing the

grave offense of intoxication manslaughter. Clearly, the

consequences of losing evidence of such a serious crime

71a

Appendix E

make it “all the more imperative that the best evidence

of intoxication not be lost in the time it usually takes to

secure a warrant.” Villarreal, 475 S.W.3d at 843.

Thus, even though I disagree with the majority’s

conclusions that McNeely applies to warrantless arrests

and that section 14.03(a)(1) requires an exigency finding, I

would hold that the State’s evidence established exigency

beyond the need to preserve evidence of McGuire’s blood

alcohol level, based on the totality of circumstances,

including the undisputed fact that McGuire left the scene

of the crash and the need to preserve evidence of his truck’s

collision with the complainant’s motorcycle. See, e.g., Cole,

490 S.W.3d at 927 (“[L]aw enforcement was confronted

with not only the natural destruction of evidence through

natural dissipation of intoxicating substances, but also

with the logistical and practical constraints posed by

a severe accident involving a death and the attendant

duties this accident demanded. We therefore conclude that

exigent circumstances justified [appellant]’s warrantless

blood draw.”); see also State v. Keller, No. 05-15-00919CR, 2016 Tex. App. LEXIS 8796, 2016 WL 4261068, at *5

(Tex. App.—Dallas Aug. 11, 2016, no pet.) (mem. op., not

designated for publication) (“Evaluating the totality of the

circumstances here, we conclude the warrantless blood

draw was constitutionally permissible under exigency

principles . . . [L]aw enforcement was confronted with

not only the natural destruction of evidence through

natural dissipation of intoxicating substances, but also

with the logistical and practical constraints posed by a

potentially fatal accident and the necessity of securing

the site and protecting the public. We therefore conclude

72a

Appendix E

that the warrantless blood draw did not violate the Fourth

Amendment and the trial court erred in concluding a

violation occurred.”).

On this record, the totality of the circumstances show

that McGuire’s warrantless arrest was justified under the

suspicious place exception because the troopers needed to

preserve evidence both of the level of alcohol in McGuire’s

blood, regardless of the separate search warrant required

to draw blood, and of the state of McGuire’s vehicle, with

a portion of the complainant’s motorcycle lodged in it,

shortly after the accident.

Conclusion

I would hold that because the State proved that

McGuire’s warrantless arrest was justified under the Code

of Criminal Procedure article 14.03(a)(1), the trial court

abused its discretion in granting the motion to suppress

the evidence obtained as a result of the arrest.

Evelyn V. Keyes

Justice

Panel consists of Justices Keyes, Higley, and Landau.

Keyes, J., dissenting.

Publish. Tex. R. A pp. P. 47.2(b).