March 12, 2015
IN THE COURT
OF CRIMINAL APPEALS OF TEXAS
GENE ALLEN BURKS, § APPELLANT § § V. § NO. PD-0157-15 § THE STATE OF TEXAS, § APPELLEE §
§§§
STATE'S PETITION FOR DISCRETIONARY REVIEW
SHAREN WILSON Criminal District Attorney Tarrant County, Texas
DEBRA WINDSOR, Assistant Criminal District Attorney Chief, Post-Conviction
TANYA S. DOHONEY, Assistant Criminal District Attorney Tim Curry Criminal Justice Center 401 W. Belknap Fort Worth, Texas 76196-0201 (817) 884-1687 FAX (817) 884-1672 State Bar No. 02760900 CCAAppellateAlerts@tarrantcountytx.gov
LISA C. MCMINN State Prosecuting Attorney
ORAL ARGUMENT IS REQUESTED SUBJECT INDEX
INDEX OF AUTHORITIES ......................................................................... iv
STATEMENT REGARDING ORAL ARGUMENT ........................................ 1
STATEMENT OF THE CASE ..................................................................... 2
STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE ............. 2
STATEMENT OF FACTS ........................................................................... 3
QUESTIONS PRESENTED FOR REVIEW................................................. 4
FIRST QUESTION FOR REVIEW .............................................................. 4 Does a warrantless, nonconsensual blood draw conducted pursuant to TEX. TRANSP. CODE §724.012(b) violate the Fourth Amendment?
SECOND QUESTION FOR REVIEW ......................................................... 4 Are Fourth Amendment warrant-preference exceptions the sole measure of Fourth Amendment reasonableness in warrantless scenarios?
THIRD QUESTION FOR REVIEW .............................................................. 4 Do exclusionary rule principles mandate suppression of blood evidence seized via a warrantless, nonconsensual, valid-at-the-time mandatory blood draw? TEX. CODE CRIM. PROC. art. 38.23(b).
ARGUMENTS AND AUTHORITIES............................................................ 5
I. Valid, compelled statutory blood draw ..................................................... 6
A. Codification of Fourth Amendment principles................................... 7
B. Special-needs framework adds to the reasonableness calculation ............................................................. 9 ii C. Erroneous Consideration of the “Less Intrusive Means” Test ........ 11
II. Implied-Consent Draws Are Reasonable ............................................. 12
III. Exclusionary rule inapplicable and not invoked .................................... 14
CONCLUSION AND PRAYER .................................................................. 18
CERTIFICATE OF COMPLIANCE ............................................................ 19
CERTIFICATE OF SERVICE .................................................................... 19
COURT OF APPEALS’ OPINION ............................................... APPENDIX
iii INDEX OF AUTHORITIES
CASES
Beeman v. State, 86 S.W.3d 613 (Tex. Crim. App. 2002) ................................................. 15
Breithaupt v. Abram, 352 U.S. 432 (1957)............................................................................... 13
Burks v. State, No. 02-13-00560-CR, ___ S.W.3d ___, 2015 WL 115964 (Tex. App.—Fort Worth January 8, 2015) ............................................. 2,3
Davis v. United States, ___ U.S. ___, 131 S. Ct. 2419 (2011) ............................................... 14,15
Douds v. State, 434 S.W.3d 842 (Tex. App.—Houston [14th] 2014, pet. granted) ....... 5,6n
Ex parte Tharpe, 935 S.W.2d 157 (Tex. Crim. App. 1996) ................................................ 10
Heien v. North Carolina, ___ S.Ct. ___, 2014 WL 7010684 (2014) ............................................... 16
Holidy v. State, No. 06-13-00261-CR, 2014 WL 1722171 (Tex. App.—Texarkana 2014, pet. granted) ....................................... 6 & n
Hulit v. State, 982 S.W.2d 431 (Tex. Crim. App. 1998) ........................................... 12,13
Illinois v. Krull, 480 U.S. 342 (1987)........................................................................ 14,15n
Karev v. State, 281 S.W.3d 428 (Tex. Crim. App 2009) ............................................... 15n iv Mapp v. Ohio, 367 U.S. 643 (1961)............................................................................... 15
Maryland v. King, 569 U.S. ___, 133 S.Ct. 1958 (2013) ..................................................... 12
McGee v. State, 105 S.W.3d 609 (Tex. Crim. App. 2003) ................................................ 13
Michigan Dept. of State Police v. Sitz, 496 U.S. 444 (1990)............................................................................... 12
Michigan v. DeFillippo, 443 U.S. 31 (1979)................................................................................. 16
McGruder v. State, No. 10-13-109-CR, ___ S.W.3d ___, 2014 WL 3973089 (Tex. App.—Waco 2014, pet. granted) ............................................... 6 & n
Miles v. State, 241 S.W.3d 28 (Tex. Crim. App. 2007) .................................................... 7
Missouri v. McNeely, 569 U.S. ___, 133 S.Ct. 1552 (2013) .............................................. passim
Reeder v. State, 428 S.W.3d 924 (Tex. App.—Texarkana 2014, pet. granted)........... 6 & 6n
Schmerber v. California, 384 U.S. 757 (1966)............................................................................... 8n
Segundo v. State, 270 S.W.3d 79 (Tex. Crim. App. 2008), cert. denied, 558 U.S. 828 (2009).......................................................................... 12,13
Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602 (1989)............................................................................ 9-12
v Smith v. State, No. 13-11-00694-CR, ___ S.W.3d ___, 2014 WL 5901759 (Tex. App.—Corpus Christi 2014, pet. granted) ................................. 6 & n
State v. Reese, 353 Wis.2d 266, 844 N.W.2d 396 (Wis. App. 2014) ............................. 16n
State v. Villarreal, ___ S.W.3d ___, 2014 WL 6734178 (Tex. Crim. App. 2014) (reh’g granted Feb. 25, 2015) ......................................................... passim
Thornton v. State, 145 S.W.3d 228 (Tex. Crim. App. 2004) .............................................. 16n
United States v Peltier, 422 U.S. 531 (1975)............................................................................. 15n
Weems v. State, 434 S.W.3d 655 (Tex. App.—San Antonio 2014, pet. granted) .......... 6 & n
Welsh v. Wisconsin, 466 U.S. 740 (1984)................................................................................. 8
Vernonia School District 47J v. Acton, 515 U.S. 646 (1995)............................................................................... 11
ADDITIONAL AUTHORITIES
U.S. CONST. amend. IV .......................................................................... 9,12
TEX. CODE CRIM. PROC. art. 14.04................................................................ 9
TEX. CODE CRIM. PROC. art. 18.16 ................................................................ 7
TEX. CODE CRIM. PROC. art. 38.23 ...................................................... 4,15-17
vi TEX. PENAL CODE §1.07 ............................................................................. 15
TEX. PENAL CODE §49.04 ............................................................................. 7
TEX. PENAL CODE §49.00 ............................................................................. 7
TEX. TRANSP. CODE §524.01 ...................................................................... 10
TEX. TRANSP. CODE §724.012 ............................................................. passim
TEX. R. APP. P. 66.3 .................................................................................... 6
vii IN THE COURT OF CRIMINAL APPEALS OF TEXAS
GENE ALLEN BURKS, § APPELLANT § § V. § NO. PD-0157-15 § THE STATE OF TEXAS, § APPELLEE §
TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:
Comes now the State of Texas, by and through her Tarrant
County Criminal District Attorney, and respectfully urges this Court to
grant discretionary review of this cause in accordance with the rules
of appellate procedure.
STATEMENT REGARDING ORAL ARGUMENT
The reasonableness of statutory mandatory blood draws merits
argument. Likewise, argument should be granted to discuss the
inapplicability of the exclusionary rule to cases where, at the time of
the seizure, the officer’s conduct conformed to ubiquitous, nationally-
recognized criterion that did not violate constitutional protections.
1 STATEMENT OF THE CASE
Appellant premised a pretrial suppression claim on the
Supreme Court’s decision in Missouri v. McNeely, 569 U.S. ___, 133
S.Ct. 1552 (2013). (1CR at 14-17). The trial judge rejected the
defense argument attacking the validity of blood seized pursuant the
Texas implied-consent statute. (2RR at 11-16). Appellant pled guilty
to felony driving-while-intoxicated [DWI], and the trial court sentenced
him to ten years’ incarceration, probated. (1CR at 5,49-54,56-58).
TEX. PENAL CODE §§49.04, 49.091; TEX. TRANSP. CODE §724.012(b).
STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE
The Fort Worth Court of Appeals reversed the trial court in a
published opinion authored by Justice Sue Walker. Burks v. State,
No. 02-13-00560-CR, ___ S.W.3d ___, 2015 WL 115964 (Tex.
App.—Fort Worth January 8, 2015). Rehearing was not sought. The
State files this petition, due on March 11, 2015, following one
extension.
1 Statutory cites throughout are to the current version. 2 STATEMENT OF FACTS
The parties stipulated to the case’s facts including those
encompassing the stop of Appellant’s vehicle, the factors culminating
in his felony DWI arrest, and the mandatory-draw predicate under
Texas’ implied-consent statute. TEX. TRANSP. CODE §724.012(b).
(1CR at 48; 2RR at 5-7; 3RR at SX1). When denying the motion to
suppress, the judge found that:
• the circumstances surrounding Appellant’s offense did not present any factual exigency, (2RR at 12);
• officers conducted the blood draw under the authority of Transportation Code Section 724.012(b), (2RR at 12,14);
• the totality of the circumstances warranted reliance on the limited provisions of the implied-consent statute, (2RR at 13);
• officers could have obtained a warrant, (2RR at 14);
• as a licensed driver, Appellant had notice of the implied- consent provisions applied, (2RR at 15);
• public safety/welfare considerations supported the judge’s decision to reject suppression, (2RR at 13-16).
The Fort Worth Court rejected the trial court’s ruling. Burks, 2015 WL
115964, at *1-3 (Tex. App.—Fort Worth January 8, 2015). The court
relied on this Court’s decision in Villarreal. State v. Villarreal, ___
3 S.W.3d ___, 2014 WL 6734178 (Tex. Crim. App. 2014) (reh’g granted
Feb. 25, 2015). The lower court’s opinion also applied article
38.23(b) and held that the Texas exclusionary rule did not apply to a
warrantless seizure. Id. at *3.
QUESTIONS PRESENTED FOR REVIEW
FIRST QUESTION FOR REVIEW
Does a warrantless, nonconsensual blood draw conducted pursuant to TEX. TRANSP. CODE §724.012(b) violate the Fourth Amendment? (2RR at 11-16)
SECOND QUESTION FOR REVIEW
Are Fourth Amendment warrant-preference exceptions the sole measure of Fourth Amendment reasonableness in warrantless scenarios? (2RR at 11-16)
THIRD QUESTION FOR REVIEW
Do exclusionary rule principles mandate suppression of blood evidence seized via a warrantless, nonconsensual, valid-at-the-time mandatory blood draw? TEX. CODE CRIM. PROC. art. 38.23(b). (2RR at 11-16)
4 ARGUMENTS AND AUTHORITIES
This Court is in the midst of deciding the issues presented
herein. Whilst a November 2014 decision addressed the merits of
the Fourth Amendment issue in one of the several McNeely-related
cases pending before this Court at that time, the case is in flux since
the Court recently granted rehearing. Villarreal, 2014 WL 6734178
(Tex. Crim. App. 2014) (reh’g granted Feb. 25, 2015). Per the
Court’s docket, Villarreal is now set for submission on March 18,
2015, the same day another McNeely case is set for submission.
See Douds v. State, 434 S.W.3d 842 (Tex. App.—Houston [14th]
2014, pet. granted Sep. 17, 2014).
The State’s petition focuses on two aspects of any McNeely-
related consequences: the validity of a statutorily compelled draw
and the invalidity of the exclusionary rule. Note that Villarreal only
went to the merits of the mandatory-draw issue, not addressing the
applicability of the exclusionary rule. Villarreal, 2014 WL 6734178.
However, Douds addressed the exclusionary rule’s applicability.
Douds, 434 S.W.3d at 861. In other words, this Court has already
granted review on the issues presented herein.
5 Review should be granted because this case involves important
questions of law that are have not been finally addressed by this
Court, matters in conflict in the interim appellate courts, and the
misapplication of a Supreme Court decision that does not undermine
the validity of the country’s implied-consent statutes. TEX. R. APP. P.
66.3(a)(b)(c)(d)(f). 2
I. Valid, compelled statutory blood draw
The State’s appellate stance is in lockstep with that of
prosecutors from other counties across the State who have already
had cases granted for review on a McNeely-related issue. 3 Hence,
the State respectfully asks this Court to dispose of the instant case in
a manner consistent with the petitions in Villarreal, Smith, McGruder,
Douds, Weems, Holidy, and Reeder. Here, the officer reasonably
relied on an existing, ubiquitous statute to obtain a compelled blood
2 See Villarreal, 2014 WL 6734178 (reh’g granted); Smith v. State, No. 13- 11-00694-CR, ___ S.W.3d ___, 2014 WL 5901759 (Tex. App.—Corpus Christi 2014, pet. granted); McGruder v. State, No. 10-13-109-CR, ___ S.W.3d ___, 2014 WL 3973089 (Tex. App.—Waco 2014, pet. granted); Douds, 434 S.W.3d 842 (pet. granted); Weems v. State, 434 S.W.3d 655 (Tex. App.—San Antonio 2014, pet. granted); Holidy v. State, No. 06-13-00261-CR, 2014 WL 1722171 (Tex. App.—Texarkana 2014, pet. granted); Reeder v. State, 428 S.W.3d at 930 (Tex. App.—Texarkana 2014, pet. granted); see also McNeely, 133 S.Ct at 1566 & n.9 (referencing nationwide reliance on implied-consent provisions). 3 See cases cited supra note 2. 6 draw. The seizure occurred when the officer—at the time of the
offense—possessed probable cause that Appellant’s impaired and
intoxicated conduct constituted felony DWI. TEX. PENAL CODE
§§49.04, 49.09; TEX. TRANSP. CODE §724.012(b).
In addition, the State differs with Villarreal’s original-submission
reasoning and further asserts that several important arguments
should be considered on the merits.
A. Codification of Fourth Amendment principles
Villarreal failed to consider that the implied-consent statute
codified Fourth Amendment principles. For instance, this Court has
previously recognized a statutory codification of the exigency
exception. See Miles v. State, 241 S.W.3d 28, 39-40 & n.54 (Tex.
Crim. App. 2007) (citing TEX. CODE CRIM. PROC. art. 18.16). McNeely
recognized that every case involving the dissipation of alcohol
included some exigency. McNeely, 133 S.Ct. at 1561, 1568. This
ever-present exigency must be considered when assaying the
reasonableness of statutory draws.
Combine the static alcohol-evaporation exigency consideration
with the Legislature’s clear codification of the gravity-of-the-offense
7 exigency. The implied-consent statute extinguished a defendant’s
right to refuse where an officer possesses probable cause to believe
that certain enumerated, egregious circumstances exist. TEX.
TRANSP. CODE §724.012(b). Defendants only lose their refusal right
under carefully circumscribed scenarios involving felonious
intoxication-related offenses and/or resultant injuries necessitating
hospitalization. Id. 4
This statutory limitation amounts to a codification of an
additional recognized exigency unrelated to blood-alcohol dissipation.
Welsh v. Wisconsin held that the Fourth Amendment authorizes
common-sense consideration of the underlying offense’s gravity
when weighing the existence of an exigency. Welsh v. Wisconsin,
466 U.S. 740, 751-52 (1984) (exigency calculations include
consideration of a crime’s severity). Consideration of a crime’s
gravity is the essence of reasonableness because the state’s interest
is greater in a more serious case. Cf. TEX. CODE CRIM. PROC. art.
4 Notably, under the Texas statute, the McNeely and Schmerber defendants would have retained their right to refuse based upon the less serious nature of their crimes. Compare McNeely, 133 S.Ct. at 1556-57 (DWI); Schmerber v. California, 384 U.S. 757, 758-59 (1966) (DWI arising from a one-car collision). 8 14.04 (authorizing warrantless arrests for felonies where an officer
did not observe the offense).
Of course, it almost goes without saying that Texas’ implied-
consent legislation codified Fourth Amendment probable cause
requirements. U.S. CONST. amend. IV. Predicate elements of the
implied consent statute codify this well-known quantum-of-evidence
as a requirement for a compelled search. TEX. TRANSP. CODE
§724.012(b). Probable cause, along with the exigencies based upon
the gravity-of-the-crime and the dissipation-of-alcohol exigency,
create a framework that provides a neutral set of guidelines
authorizing a narrowly defined seizure from an already-in-custody
arrestee. These provisions embrace the essence of Fourth
Amendment reasonableness.
B. Special-needs framework adds to the reasonableness calculation
The now-withdrawn Villarreal decision rejected application of
the Supreme Court’s special needs doctrine to the mandatory blood
draw framework. Villarreal, 2014 WL 6734178, at *14-15; see
Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 619
9 (1989). However, the Court did not consider that blood drawn
pursuant to Chapter 724’s mandate also implicates administrative
license revocation [ALR] procedures, a separate regulatory process
that focuses on protecting the traveling public by removing offenders
from the road. See TEX. TRANSP. CODE §524.012(b)(1) (mandating
license suspension based upon BAC).
“The primary purpose of the administrative license suspension
statute is not to deter the licensee or to seek retribution, but to protect
the public from the carnage on the public roads of Texas caused by
drunk drivers.” Ex parte Tharpe, 935 S.W.2d 157, 159 (Tex. Crim.
App. 1996). Such regulation focuses on the government’s strong
interest in removing intoxicated drivers from the road, just as railroad
regulation in Skinner sought to increase railway safety by detecting
intoxicated employees. Compare Skinner, 489 U.S. at 620-21 with
Ex parte Tharpe, 935 S.W.2d at 159.
Special needs’ principles recognize the statute’s provision of a
neutral, detached vehicle for protecting citizens from impaired drivers
and defendants from unfettered discretion. The special-needs
exception constitutes another factor to consider in a non-dualistic
10 analysis that renders Texas’ compelled-draw framework reasonable.
C. Erroneous Consideration of the “Less Intrusive Means” Test
The original Villarreal decision considered the ready availability
of warrants when rejecting the validity of Texas’ mandatory draw
statute. Villarreal, 2014 WL 6734178, at *18 (finding no compelling
need to uphold warrantless, nonconsensual blood searches where
warrants are “often readily available”). However, factors such as
electronic warrants and the availability of a magistrate shift the focus
away from an officer’s conduct and, instead, weigh considerations of
alternative means. See McNeely, 133 S.Ct. at 1561-63.
The Supreme Court often rejects arguments applying less-
intrusive-alternative-practices attacks in Fourth Amendment cases.
Vernonia School District 47J v. Acton, 515 U.S. 646 (1995)
(upholding warrantless, random urine screening of athletes and
rejecting an argument for drug testing based upon suspicion of drug
use); Skinner, 489 U.S. at 629 n.9 (upholding random, suspicionless
drug screening of railway employees following safety breaches and
rejecting arguments voicing less drastic and equally effective means).
One footnote in Skinner flatly rejects the propriety of considering less-
11 drastic alternatives in scenarios that include warrantless and even
suspicionless seizures for toxicological testing, similar to Appellant’s
facts. Skinner, 489 U.S. 602, 629 n.9. Villarreal mistakenly applied
this discounted, post-hoc consideration on original submission.
II. Implied-Consent Draws Are Reasonable
Reasonableness has always been the linchpin of the Fourth
Amendment, venerated in the provision’s plain language. U.S.
CONST. amend IV; Hulit v. State, 982 S.W.2d 431, 435-36, 438 (Tex.
Crim. App. 1998). Discernment of what is “reasonable” requires
courts to consider the balance between an individual’s privacy and
the legitimate governmental interests, especially when public safety is
of utmost concern. See Maryland v. King, 569 U.S. ___, 133 S.Ct.
1958, 1979 (2013); Michigan Dept. of State Police v. Sitz, 496 U.S.
444, 455 (1990); Segundo v. State, 270 S.W.3d 79 (Tex. Crim. App.
2008), cert. denied, 558 U.S. 828 (2009). Villarreal viewed the choice
between applying a Fourth Amendment exception and consideration
of a reasonableness balancing approach as mutually exclusive
analytical constructs. The State respectfully believes that this black-
white consideration of these two concepts is mistaken, especially in
12 light of the fact that this Court has conducted the reasonableness
balancing approach to similar issues. See Segundo, 270 S.W.3d at
96-99; McGee v. State, 105 S.W.3d 609 (Tex. Crim. App. 2003);
Hulit, 982 S.W.2d at 434 n.1, 436.
Years ago, the Supreme Court recognized that a framework
requiring a driver’s consent was anything but nonsensical. The
Breithaupt court pointed to then recently adopted implied-consent
provisions and wrote:
It might be a fair assumption that a driver on the highways in obedience to a policy of the State, would consent to have a blood test made as part of a sensible and civilized system protecting himself as well as other citizens not only from the hazards of the road due to drunken driving, but also from some use of dubious lay testimony.
Breithaupt v. Abram, 352 U.S. 432, 435 n.2 (1957). The State
contends that compelled draws under implied-consent provisions are
inherently reasonable when all side’s needs are weighed. Indeed,
Fourth Amendment reasonableness underpins the statute. The well-
known exceptions—as argued in the myriad cases already before this
Court—considered individually and in concert with each other,
alongside a balancing of the competing interests, all support the
13 continued viability of Texas’ implied-consent framework.
III. Exclusionary rule inapplicable and not invoked
Statutory mandatory blood-draws are reasonable. But see
State v. Villarreal, 2014 WL 6734178 (opinion on original submission;
under re-submission). 5 When the ink dries on Villarreal and future
McNeely-related decisions and if those cases are adverse to the
State on the merits, the rules requiring evidence exclusion should not
apply to mandatory blood-draw scenarios that occurred prior to the
Supreme Court’s April 2012 pronouncement.
Federally, the good-faith exception to the Fourth Amendment’s
exclusionary rule applies when law enforcement, at the time of the
search, acted objectively reasonably by relying on (1) a statute, later
declared unconstitutional, or (2) binding judicial precedent,
subsequently overruled. Illinois v. Krull, 480 U.S. 342, 349-57 (1987)
(statutes); Davis v. United States, ___ U.S. ___, 131 S. Ct. 2419,
2428-34 (2011) (caselaw).
Under state law, the Texas exclusionary rule is not invoked
because—at the time of the offense—no violation occurred. The
5 See cases cited supra note 2. 14 State recognizes that article 38.23(b)—Texas’ limited good faith
exception—requires a warrant. TEX. CODE CRIM. APP. §38.23(b).
Notwithstanding, invocation of exclusionary rule principles relies on
article 38.23(a). That subsection’s plain language requires a violation
for exclusion to be triggered. When Appellant’s blood was drawn, no
one credibly questioned the validity of the officer’s statutory
authority. 6 In other words, at the time of the seizure, the officer
followed then-existing law. See TEX. CODE CRIM. PROC. art. 38.23(a);
see also TEX. PENAL CODE §1.07(a)(30) (defining “law” as meaning
the state and federal constitution and statutes, in addition to the
written opinions of a court of record); see also Davis, 131 S.Ct. at
2427-28 (“obtained” applies to unlawfulness at the time of the
seizure; exclusion not triggered in an absence of police culpability).
Simply put, these circumstances do not invoke exclusion. 7
6 See Beeman v. State, 86 S.W.3d 613, 615 (Tex. Crim. App. 2002); TEX. TRANSP. CODE §724.012(b); see also Karev v. State, 281 S.W.3d 428, 434 (Tex. Crim. App 2009) (statutes presumed constitutional until held otherwise). 7 See also United States v Peltier, 422 U.S. 531, 541-42 (1975) (upholding suspicionless, warrantless seizure of individual by roving border patrol agents based upon statutory framework that, at the time, was constitutional); Krull, 480 U.S. at 349–50 (exclusionary rule inapplicable when police reasonably rely on a statute later deemed unconstitutional); see also Mapp v. Ohio, 367 U.S. 643, 656 (1961) (exclusionary rule seeks to deter officers from committing violations of the law to obtain evidence); Thornton v. State, 145 S.W.3d 228, 233-34 (Tex. Crim. App. 2004) (exclusion not justified where facts reveal marginal or nonexistent deterrent benefits); accord State v. Reese, 353 Wis.2d 266, 844 N.W.2d 396, 402 (Wis. App. 2014) (exclusion inappropriate 15 The Supreme Court mentioned, in dictum, the application of the
exclusionary rule versus Fourth Amendment violations in a non-
blood-draw scenario decided recently. In Heien, the Court weighed
the validity of an investigatory stop where the officer misunderstood
the traffic code provision he relied on to support the stop. See Heien
v. North Carolina, ___ S.Ct. ___, 2014 WL 7010684, at *6-9
(December 15, 2014). The Supreme Court considered the
reasonableness of the officer’s mistake that lead to the stop and
arrest when considering remedies. In so doing, the Court pointed out
the myriad decisions finding exclusionary-rule invocation
inappropriate where the officer’s conduct—valid at the time—was
later declared unconstitutional. Id. With only one justice dissenting,
the Supreme Court’s decision pondered the exclusionary rule’s limits
which had been briefly considered in Michigan v. DeFillippo, 443 U.S.
31,33,37-38 (1979) (suggesting that exclusion might have been
appropriate had the provision been “grossly and flagrantly
unconstitutional”) (citation omitted). Although the Heien discussion is
merely dicta, it reiterates the importance of focusing on the fact that
in McNeely scenario because no officer misconduct at the time of the seizure). 16 the instant officer’s conduct fully complied with mandatory, settled law
at the time of Appellant’s arrest. McNeely and subsequent caselaw
questioning implied-consent blood draws came later. Since, no
violation occurred at the time of the Appellant’s 2011 blood draw,
article 38.23’s exclusionary provision does not apply.
17 CONCLUSION AND PRAYER
Review should be granted and the decision of the Court of
Appeals should be reversed, upholding this felony DWI conviction.
Respectfully submitted,
SHAREN WILSON Criminal District Attorney Tarrant County, Texas
DEBRA WINDSOR Chief, Post-Conviction Assistant Criminal District Attorney
/s/ Tanya S. Dohoney TANYA S. DOHONEY Assistant Criminal District Attorney Tim Curry Criminal Justice Center 401 W. Belknap Fort Worth, Texas 76196-0201 (817) 884-1687 (817)884-1672 FAX State Bar No. 02760900 CCAAppellateAlerts@tarrantcountytx.gov
18 CERTIFICATE OF COMPLIANCE
This document, prepared in a conventional typeface no smaller
than 14-point for text and 12-point for footnotes, complies with the
typeface requirements of TEX. R. APP. P. 9.4(e). This document also
complies with the word-count limitations of TEX. R. APP. P. 9.4 (i)
because it contains less than 3100 words, excluding any parts
exempted by TEX. R. APP. P. 9.4(i)(1), as computed by Microsoft
Word10, the computer software used to prepare the document.
/s/ Tanya S. Dohoney TANYA S. DOHONEY
CERTIFICATE OF SERVICE
A true copy of the State’s petition has been e-served to
opposing counsel, Hon. Abe Factor, 5719 Airport Freeway, Fort
Worth, Texas 76117 at lawfactor@yahoo.com, and to the State
Prosecuting Attorney, Hon. Lisa McMinn, information@spa.texas.gov,
P.O. Box 13046, Austin, Texas 78711, on this 11th day of March,
2015.
H:\DOHONEY.D11\BRIEFS\011615 burks mcneely post-villarreal.doc
19 (COURT OF APPEALS’ OPINION)
A