Chidyausiku, Walter Tendai

Opinion

PD-0313-15 & PD-0314-15 PD-0313&0314-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 4/8/2015 2:09:29 PM Accepted 4/15/2015 11:40:36 AM ABEL ACOSTA IN THE COURT CLERK OF CRIMINAL APPEALS OF TEXAS

THE STATE OF TEXAS, § APPELLANT § § V. § NOS. PD-0313-15 § & PD-0314-15 WALTER CHIDYAUSIKU, § APPELLEE §

§ § §

STATE'S PETITION FOR DISCRETIONARY REVIEW

§ § §

SHAREN WILSON Criminal District Attorney Tarrant County, Texas

DEBRA WINDSOR, Assistant Criminal District Attorney April 15, 2015 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 IDENTITY OF THE PARTIES AND COUNSEL

The Hon. Sharen Wilson, Tarrant County Criminal District Attorney,

represents the State of Texas in this appeal. Additionally, representing the

State on appeal is the Hon. Tanya S. Dohoney, Assistant Criminal District

Attorney and Hon. Debra Windsor, Post-Conviction Chief. At trial, the Hon.

Dawn Ferguson, Hon. Brock Groom, and the Hon. Mark Thielman

represented the prosecution. The State’s attorneys’ address is Office of

the Criminal District Attorney of Tarrant County, Tim Curry Criminal Justice

Center, 401 W. Belknap, Fort Worth, Texas 76196-0201.

The Hon. Lisa C. McMinn is the State’s Prosecuting Attorney. Mail

for the Office of the State Prosecuting Attorney, located in the Price Daniel

Sr. Building, may be sent to P.O. Box 13046, Austin, Texas, 78711.

Appellee, Defendant below, is Walter Tendai Chidyausiku. Hon. Wes

Ball, 4025 Woodland Park Boulevard, Suite 100, Arlington, Texas, 76013,

represented Appellee at trial and now on appeal.

The State tried Appellee’s cases in the Criminal District Court No. 4

of Tarrant County, Texas, also located in the Tim Curry Criminal Justice

Center. The Hon. Mike Thomas presided over the cases.

ii SUBJECT INDEX

SUBJECT INDEX ...................................................................................... iii

INDEX OF AUTHORITIES .......................................................................... v

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? (2RR; 3RR at 4–6)

SECOND QUESTION FOR REVIEW ......................................................... 4

Are Fourth Amendment warrant-preference exceptions the sole measure of Fourth Amendment reasonableness in warrantless scenarios? (2RR; 3RR at 4–6)

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? (2RR; 3RR at 4–6)

ARGUMENT AND AUTHORITIES .............................................................. 4

iii I. Valid, compelled statutory blood draw ............................................... 6

A. Codification of Fourth Amendment principles............................ 6 B. Special-needs framework adds to the reasonableness calculation ................................................................................ 8 C. Erroneous Consideration of the “Less Intrusive Means” Test .......................................................................................... 9

II. Implied-Consent Draws Are Reasonable ......................................... 10

III. Exclusionary rule inapplicable and not invoked ................................ 12

CONCLUSION AND PRAYER .................................................................. 15

CERTIFICATE OF COMPLIANCE ............................................................ 16

CERTIFICATE OF SERVICE .................................................................... 16

COURT OF APPEALS’ OPINION ............................................... APPENDIX

iv INDEX OF AUTHORITIES

Cases

Breithaupt v. Abram, 352 U.S. 432 (1957) ........................................................................ 12

Davis v. United States, ___ U.S. ___, 131 S. Ct. 2419 (2011) .............................................. 13

Douds v. State, 434 S.W.3d 842 (Tex. App.—Houston [14th Dist.] 2014, pet. granted) ...................................................................................................... 5, 6

Heien v. North Carolina, 135 S.Ct. 530 (2014) ................................................................. 14, 15

Hulit v. State, 982 S.W.2d 431 (Tex. Crim. App. 1998) .................................... 10, 11

Illinois v. Krull, 480 U.S. 342 (1987) ........................................................................ 13

Maryland v. King, 569 U.S. ___, 133 S.Ct. 1958 (2013) ............................................... 11

McGee v. State, 105 S.W.3d 609 (Tex. Crim. App. 2003) .......................................... 11

Michigan Dept. of State Police v. Sitz, 496 U.S. 444 (1990) ........................................................................ 11

Michigan v. DeFillippo, 443 U.S. 31 (1979) .......................................................................... 14

Miles v. State, 241 S.W.3d 28 (Tex. Crim. App. 2007) .............................................. 6

v Missouri v. McNeely, 569 U.S. ___, 133 S.Ct. 1552 (2013) ........................................passim

Segundo v. State, 270 S.W.3d 79 (Tex. Crim. App. 2008), cert. denied, 558 U.S. 828 (2009) .................................................... 11

Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602 (1989) ...................................................................... 8, 9

State v. Villarreal, PD-0306-14, 2014 WL 6734178 (Tex. Crim. App. 2014)...........passim

Tharp v. State, 935 S.W.2d 157 (Tex. Crim. App. 1996) ............................................ 9

Vernonia School Dist. 47J v. Acton, 515 U.S. 646 (1995) ........................................................................ 10

Weems v. State, 434 S.W.3d 655 (Tex. App.—San Antonio 2014, pet. granted) ...... 5, 6

Welsh v. Wisconsin, 466 U.S. 740 (1984) .......................................................................... 7

Statutes

TEX. CODE CRIM. PROC. art. 14.04................................................................ 7

TEX. CODE CRIM. PROC. art. 18.16................................................................ 6

TEX. CODE CRIM. PROC. art. 38.23........................................................ 13, 14

TEX. PENAL CODE §49.04 ............................................................................. 6

TEX. PENAL CODE §49.07 ............................................................................. 2

TEX. PENAL CODE §49.08 ............................................................................. 2

vi TEX. PENAL CODE §1.07(a)(30) .................................................................. 13

TEX. TRANSP. CODE §524.012(b).................................................................. 9

TEX. TRANSP. CODE §724.012(b).........................................................passim

U.S. CONST. amend. IV ......................................................................passim

Rules

TEX. R. APP. P. 66.3 .................................................................................... 5

TEX. R. APP. P. 9.4 .................................................................................... 16

vii IN THE COURT OF CRIMINAL APPEALS OF TEXAS

THE STATE OF TEXAS, § APPELLANT § § V. § NOS. PD-0313-15 § & PD-0314-15 WALTER CHIDYAUSIKU, § APPELLEE §

STATE’S PETITION FOR DISCRETIONARY REVIEW

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 these causes 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 criteria 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). (2RR). The trial judge rejected the defense argument attacking the

validity of blood seized pursuant to the Texas implied-consent statute.

(2RR; 3RR at 4–6). Appellant pled guilty to intoxication assault and

intoxication manslaughter, then asked a jury to assess punishment. (4RR

at 10-12; 5RR; 6RR). The jury sentenced Appellant to penitentiary time.

(1CR at 170,196–96 [1264242R]; 1CR at 177–79 [1264243R]; 6RR at 68).

TEX. PENAL CODE §§49.07, 49.08; 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 Lee Ann Dauphinot. Justice Lee

Gabriel concurred, with Chief Justice Terri Livingston joining that opinion.

Chidyausiku v. State, 02-14-00078-CR, 2015 WL 737391 (Tex. App.—Fort

Worth Feb. 19, 2015, no. pet. h.). Rehearing was not sought. The State

timely files this petition, following one extension.

2 STATEMENT OF FACTS

Appellant was convicted of intoxication assault and intoxication

manslaughter after he sped, ran a stop sign, and plowed into a mother

driving her ten-year-old son to football practice. (4RR at 23–57; 5RR at

15–72,95–109,138–54,187–190). TEX. PENAL CODE §§49.07, 49.08. The

woman suffered serious injuries requiring long-term medical intervention

and hospitalization; worse, her young son died. (4RR at 27–33; 5RR at

61,78,155,172). Arlington Police officers seized Appellant’s blood pursuant

to the mandatory blood draw provisions contained in Texas’ implied-

consent law; his BAC measured 0.12. TEX. TRANSP. CODE §724.012(b).

(5RR at 6–8,67–77). Appellant primarily relied on the McNeely decision to

complain of the trial court’s pretrial denial of his motion to suppress.

Missouri v. McNeely, 569 U.S. ___, 133 S.Ct. 1552 (2013). (2RR).

Appellant also complained about the status of the person who conducted

the hospital-based blood draw, an issue the lower court did not reach.

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; 3RR at 4–6)

SECOND QUESTION FOR REVIEW

Are Fourth Amendment warrant-preference exceptions the sole measure of Fourth Amendment reasonableness in warrantless scenarios? (2RR; 3RR at 4–6)

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? (2RR; 3RR at 4–6)

ARGUMENT 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. State v. Villarreal, PD-0306-14, 2014 WL 6734178

4 (Tex. Crim. App. 2014) (reh’g granted Feb. 25, 2015). Per the Court’s

docket, Villarreal was submitted again on March 18, 2015, the same day

argument was heard in another McNeely case. See Douds v. State, 434

S.W.3d 842 (Tex. App.—Houston [14th Dist.] 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, the lower courts

in Weems and Douds addressed the exclusionary rule’s applicability.

Weems v. State, 434 S.W.3d 655, 666–67 (Tex. App.—San Antonio 2014,

pet. granted); Douds, 434 S.W.3d at 861. In other words, this Court has

already granted review on the issues presented herein.

Review should be granted because this case involves important

questions of law that 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).

5 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. 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 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

decision 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

6 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 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.

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.

7 CODE CRIM. PROC. art. 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, 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 (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 8 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.”

Tharp v. State, 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 Tharp, 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 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 9 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

Dist. 47J v. Acton, 515 U.S. 646, 663–64 (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-drastic alternatives in scenarios that include

warrantless and even suspicionless seizures for toxicological testing,

similar to Appellant’s facts. Id. 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.

10 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 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. 11 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 continued viability of

Texas’ implied-consent framework.

III. Exclusionary rule inapplicable and not invoked

Statutory mandatory blood-draws are reasonable. But see Villarreal,

2014 WL 6734178(opinion on original submission; under re-submission).

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 with objective reasonableness by relying on (1) a statute, later

declared unconstitutional, or (2) binding judicial precedent, subsequently

12 overruled. Illinois v. Krull, 480 U.S. 340, 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 State

recognizes that article 38.23(b)—Texas’ limited good faith exception—

requires a warrant. TEX. CODE CRIM. PROC. §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. 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.

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

13 investigatory stop where the officer misunderstood the traffic code provision

he relied on to support the stop. See Heien v. North Carolina, 135 S.Ct.

530, 538–39 (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.

Heien, 135 S.Ct at 538–39; see generally Michigan v. DeFillippo, 443 U.S.

31, 3–9 (1979) (suggesting that exclusion might have been appropriate had

the provision been “grossly and flagrantly unconstitutional”).

Although the Heien discussion is merely dicta, it reiterates the

importance of focusing on the fact that the instant officer’s conduct—at the

time of the arrest—complied with mandatory, settled law. Heien, 135 S.Ct.

at 538–39. 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, Texas’ exclusionary provision does not apply.

TEX. CODE CRIM. PROC. art. 38.23(a). And since any legal error by the

14 officer was reasonable, Fourth Amendment cases do not mandate the

remedy of exclusion. See Heien, 135 S.Ct. at 539.

CONCLUSION AND PRAYER

Review should be granted and the decision of the Court of Appeals

should be reversed, remanding the causes to address the remaining non-

McNeely claim. Ultimately, these convictions should be upheld.

Respectfully submitted,

SHAREN WILSON Criminal District Attorney Tarrant County, Texas

DEBRA WINDSOR, Assistant Criminal District Attorney Chief, Post-Conviction

/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 FAX (817) 884-1672 State Bar No. 02760900 ccaappellatealerts@tarrantcountytx.gov

15 CERTIFICATE OF COMPLIANCE

This document complies with the typeface requirements of TEX. R.

APP. P. 9.4(e) because it has been prepared in a conventional typeface no

smaller than 14-point for text and 12-point for footnotes. This document

also complies with the word-count limitations of TEX. R. APP. P. 9.4 (i)

because it contains less than 4500 words, excluding any parts exempted

by TEX. R. APP. P. 9.4(i)(1), as computed by Microsoft Word, 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 for discretionary review has been e-

served to opposing counsel, the Hon. Wes Ball, 4025 Woodland Park

Boulevard, Suite 100, Arlington, Texas, 76013, at

WBnotices@ballhase.com on this, the 8th day of April 2015.

/s/ Tanya S. Dohoney TANYA S. DOHONEY

H:\DOHONEY.D11\PDRS\031815 chidyausiku pdr post-villarreal-reh hyperlinked.docx

A Page 1 --- S.W.3d ----, 2015 WL 737391 (Tex.App.-Fort Worth) (Cite as: 2015 WL 737391 (Tex.App.-Fort Worth))

110XXIV Review Only the Westlaw citation is currently available. 110XXIV(L) Scope of Review in General 110XXIV(L)13 Review De Novo NOTICE: THIS OPINION HAS NOT BEEN RE- 110k1139 k. In general. Most Cited LEASED FOR PUBLICATION IN THE PER- Cases MANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAW- Criminal Law 110 1158.12 AL. 110 Criminal Law OPINION 110XXIV Review 110XXIV(O) Questions of Fact and Findings Court of Appeals of Texas, 110k1158.8 Evidence Fort Worth. 110k1158.12 k. Evidence wrongfully Walter Tendai Chidyausiku, Appellant obtained. Most Cited Cases v. The appellate court reviews a trial court's rul- The State of Texas, State ing on a motion to suppress evidence under a bi- NO. 02–14–00077–CR, NO. 02–14–00078–CR furcated standard of review, giving almost total de- DELIVERED: February 19, 2015 ference to a trial court's rulings on questions of his- torical fact and application-of-law-to-fact questions Background: After his motion to suppress evid- that turn on an evaluation of credibility and de- ence was denied, defendant pled guilty in the Crim- meanor, but reviewing de novo application- inal District Court No. 4, Tarrant County, Michael of-law-to-fact questions that do not turn on credib- R. Thomas, J., to intoxication assault and intoxica- ility and demeanor. tion manslaughter. Defendant appealed. [2] Automobiles 48A 414 Holdings: The Court of Appeals, Lee Ann Dauphinot, J., held that: 48A Automobiles (1) natural dissipation of alcohol in defendant's 48AIX Evidence of Sobriety Tests bloodstream following a fatal car accident did not 48Ak414 k. Right to take sample or conduct constitute an exigent circumstance that justified the test; initiating procedure. Most Cited Cases warrantless blood draw, and The natural dissipation of alcohol in defend- (2) error in denying defendant's motion to suppress ant's bloodstream following a fatal car accident did was not harmless. not constitute an exigent circumstance that justified the warrantless blood draw used to determine de- Reversed and remanded. fendant's blood alcohol content, especially in light of the local protocol and procedure for obtaining search warrants efficiently and without undue Gabriel, J., filed concurring opinion in which delay. U.S. Const. Amend. 4. Livingston, C.J., joined. [3] Searches And Seizures 349 24 West Headnotes 349 Searches and Seizures [1] Criminal Law 110 1139 349I In General 110 Criminal Law 349k24 k. Necessity of and preference for warrant, and exceptions in general. Most Cited

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Cases 110 Criminal Law Searches conducted outside the judicial pro- 110XXIV Review cess, without prior approval by judge or magistrate, 110XXIV(Q) Harmless and Reversible Error are per se unreasonable, subject only to a few spe- 110k1162 k. Prejudice to rights of party cifically established and well delineated exceptions. as ground of review. Most Cited Cases U.S. Const. Amend. 4. If the appellate record in a criminal case re- veals constitutional error that is subject to harmless [4] Automobiles 48A 414 error review, the court of appeals must reverse a judgment of conviction or punishment unless the 48A Automobiles court determines beyond a reasonable doubt that the 48AIX Evidence of Sobriety Tests error did not contribute to the conviction or punish- 48Ak414 k. Right to take sample or conduct ment. test; initiating procedure. Most Cited Cases A nonconsensual search of a driving while in- [8] Criminal Law 110 1169.1(8) toxicated (DWI) suspect's blood conducted pursu- ant to the mandatory-blood-draw and implied-con- 110 Criminal Law sent provisions in the Transportation Code, when 110XXIV Review undertaken in the absence of a warrant or any ap- 110XXIV(Q) Harmless and Reversible Error plicable exception to the warrant requirement, viol- 110k1169 Admission of Evidence ates the right of protection against unreasonable 110k1169.1 In General searches and seizures. U.S. Const. Amend. 4. 110k1169.1(8) k. Evidence wrong- fully obtained. Most Cited Cases [5] Searches And Seizures 349 24 Error in denying defendant's motion to sup- press results of blood test that was performed in vi- 349 Searches and Seizures olation of his right of protection against unreason- 349I In General able searches and seizures was not harmless, in pro- 349k24 k. Necessity of and preference for secution for intoxication assault and intoxication warrant, and exceptions in general. Most Cited manslaughter; Court of Appeals could not say that Cases the denial of defendant's motion to suppress the res- To be constitutionally permissible, a warrant- ults of the blood test did not contribute to his de- less search must fall within one of the well-ac- cision to enter a guilty plea. U.S. Const. Amend. 4. cepted exceptions to the warrant requirement. U.S. Const. Amend. 4. FROM CRIMINAL DISTRICT COURT NO. 4 OF [6] Automobiles 48A 414 TARRANT COUNTY, TRIAL COURT NOS. 1264242R, 1264243R, MICHAEL R. THOMAS, 48A Automobiles TRIAL COURT JUDGEWes Ball, Arlington, TX, 48AIX Evidence of Sobriety Tests for Appellant. 48Ak414 k. Right to take sample or conduct test; initiating procedure. Most Cited Cases Sharen Wilson, Criminal District Attorney; Debra The natural dissipation of alcohol in the A. Windsor, Chief of the Post-Conviction Division; driver's bloodstream does not constitute an exi- Tanya S. Dohoney, Dawn Ferguson, Assistant gency in every case sufficient to justify conducting Criminal District Attorneys for Tarrant County, a blood test without a warrant. U.S. Const. Amend. Fort Worth, TX, for State. 4.

[7] Criminal Law 110 1162 PANEL: LIVINGSTON, C.J.; DAUPHINOT and

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GABRIEL, JJ. a fast speed and then failed to stop, striking the vehicle operated by Tina R. As a result of the colli- sion, Tina suffered severe bodily injuries causing OPINION her to be hospitalized for six weeks. Additionally, LEE ANN DAUPHINOT, JUSTICE the wreck resulted in the death of Tina's ten- *1 After the denial of his motions to suppress, year-old son. Appellant Walter Tendai Chidyausiku pled guilty to intoxication assault and intoxication manslaughter, The City of Arlington Fire Department and the charged in separate indictments, reserving his right DWI unit of the City of Arlington Police Depart- to appeal the denial of his motions to suppress. He ment responded to the wreck. Officer Brian Martin pled “not true” to the deadly-weapon allegation in spoke with Appellant when he arrived on the scene each case. A jury convicted him as instructed to do and noticed that Appellant had been crying and was by the trial court, found the deadly-weapon allega- a bit emotional. Appellant admitted to having had tion in each case true, and assessed his punishment two alcoholic drinks at a bar after work before the at three years' confinement for his conviction of in- collision occurred. Appellant also told Officer Mar- toxication assault and ten years' confinement for his tin that he had been trying to rinse his mouth with conviction of intoxication manslaughter. The trial mouthwash just before the collision to mask the court sentenced him accordingly, with the sentences smell of cigarette smoke, and may have even swal- FN1 to run concurrently. lowed some mouthwash, because he was on his way to meet his son. FN1. See Tex.Code Crim. Proc. art. 42.08(a) (West Supp. 2014). Officer Martin directed Appellant to perform field sobriety tests because Appellant showed signs In two points, Appellant challenges the trial of impairment such as poor balance, bloodshot and court's denial of his motions to suppress the evid- glassy eyes, and the smell of alcohol from his ence obtained from the warrantless, mandatory, and mouth. When asked about the specific results of the involuntary blood draw. Because the trial court re- tests, Officer Martin testified that Appellant had versibly erred by denying his motion to suppress in FN2 scored six of six points on the horizontal- each case, we reverse the trial court's judg- gaze-nystagmus test and four of eight on the walk- ments and remand both causes to the trial court for and-turn test, failing both, but that he had passed a new trial or other proceedings consistent with this the final test by scoring zero on the one-leg stand. opinion. As a result of those tests, Officer Martin placed FN2. See State v. Villarreal, No. Appellant under arrest for driving while intoxic- PD–0306–14, –––S.W.3d ––––, ––––, ated. Appellant was then transported to the Medical 2014 WL 6734178, at *20 (Tex.Crim.App. Center of Arlington (MCA), where he was asked to Nov. 26, 2014) (holding that implied con- give a blood sample. He refused, so blood-draw sent statutes, “taken by themselves, [do technician Adam Tomlinson performed the blood not] form a constitutionally valid alternat- draw without Appellant's consent while Officer ive to the Fourth Amendment warrant re- Martin was present. Tomlinson worked for the quirement”). MCA “as a side gig part time while [also] working Brief Facts on the ambulance [at Arlington EMS].” As an Appellant was involved in a car wreck at a Emergency Department Tech II at MCA, some of four-way stop intersection in Arlington, Texas. Ap- Tomlinson's primary duties included “[s]tarting pellant's automobile approached the intersection at IVs, drawing blood, [inserting and removing] Foley catheters[,] ... transporting patients[,] and assisting

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the nurses and doctors in other procedures.” After tion to suppress evidence under a bifurcated stand- FN5 the sample was collected, Officer Martin transpor- ard of review. We give almost total deference ted the blood vials to the main police station and to a trial court's rulings on questions of historical locked them in the evidence room, where they re- fact and application-of-law-to-fact questions that mained refrigerated. Analyst Joyce Ho tested Ap- turn on an evaluation of credibility and demeanor, pellant's blood. but we review de novo application-of-law-to-fact questions that do not turn on credibility and de- *2 In both cases, Appellant filed a motion to FN6 meanor. suppress the blood evidence on the ground that it was seized without a warrant and without consent, FN5. Amador v. State, 221 S.W.3d 666, under the auspices of transportation code section 673 (Tex.Crim.App.2007); Guzman v. 724.012, authorizing mandatory blood draws, and State, 955 S.W.2d 85, 89 triggering section 724.017, which lists those author- (Tex.Crim.App.1997). ized to draw blood under the implied consent stat- FN3 FN6. Amador, 221 S.W.3d at 673; Estrada utes. Appellant argued in his motions to sup- press that under section 724.017, a qualified techni- v. State, 154 S.W.3d 604, 607 cian must draw the blood, that the statute excludes (Tex.Crim.App.2005); Johnson v. State, 68 emergency medical services personnel from the S.W.3d 644, 652–53 (Tex.Crim.App.2002) definition of “qualified technician,” and that be- . cause Tomlinson holds an EMT paramedic license, [3][4]It is well established that he is included in emergency medical services per- sonnel. Appellant also contended that the mandat- [t]he Fourth Amendment (of the United States ory blood draw was a search, and he moved to sup- Constitution) proscribes all unreasonable press the blood evidence on the ground that the searches and seizures, and it is a cardinal prin- Fourth Amendment “does not permit nonconsensual ciple that searches conducted outside the judicial blood draws in every instance,” citing Missouri v. process, without prior approval by judge or ma- McNeely in his brief supporting his motion in each gistrate, are per se unreasonable under the Fourth FN4 case. The trial court denied the motions in Amendment—subject only to a few specifically both cases. FN7 established and well-delineated exceptions. FN3. Tex. Transp. Code Ann. § 724.012 The Texas Court of Criminal Appeals instructs (West 2011), § .017 (West Supp. 2014). us that a nonconsensual search of a DWI suspect's blood FN4. ––– U.S. ––––, 133 S.Ct. 1552, 1557, conducted pursuant to the mandatory-blood-draw 185 L.Ed.2d 696 (2013). and implied-consent provisions in the Transporta- At trial, subject to Appellant's objections to the tion Code, when undertaken in the absence of a blood evidence, he and the State stipulated to the warrant or any applicable exception to the war- result of Ho's analysis showing that he had a blood- rant requirement, violates the Fourth Amend- FN8 alcohol concentration of 0.12. Dr. Robert Johnson, ment. Chief Toxicologist for the Tarrant County Medical The Supreme Court of the United States has Examiner's Office, testified concerning Appellant's held, 0.12 blood-alcohol concentration. Our cases have held that a warrantless search of Motion to Suppress the person is reasonable only if it falls within a [1][2]We review a trial court's ruling on a mo- recognized exception. That principle applies to

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the type of search at issue in this case, which in- cords do not reflect any other exception to justify FN13 volved a compelled physical intrusion beneath the search. We further point out that this court McNeely's skin and into his veins to obtain a has already rejected the State's argument that the sample of his blood for use as evidence in a crim- evidence should not be excluded under article FN14 inal investigation. Such an invasion of bodily in- 38.23. We therefore hold that the trial court tegrity implicates an individual's most personal erred by denying Appellant's motion to suppress the FN9 FN15 and deep-rooted expectations of privacy. blood test results in each case.

FN10. Id. at 1558–59; Villarreal, ––– FN7. Gonzales v. State, 369 S.W.3d 851, S.W.3d at ––––, 2014 WL 6734178, at *9. 854 (Tex.Crim.App.2012) (internal quota- tion marks and citation omitted). FN11. McNeely, 133 S.Ct. at 1568.

FN8. Villarreal, ––– S.W.3d at ––––, 2014 FN12. See id. WL 6734178, at *21. FN13. See Villarreal, ––– S.W.3d at ––––, FN9. McNeely, 133 S.Ct. at 1558 (citations 2014 WL 6734178 at *10 (rejecting im- and internal quotation marks omitted). plied consent, exceptions to the warrant re- quirement—the automobile exception, the [5][6]To be constitutionally permissible, a war- special-needs exception, and the search- rantless search must fall within one of the well- incident-to-arrest-exception, as well as the accepted exceptions to the warrant requirement. treatment of the blood draw as a seizure, FN10 We have found no exception to the warrant not a search and employing a balancing requirement that would justify the search in the test as justifications for mandatory blood cases now before this court. The only possible exi- draw). gency suggested by the records is the natural dissip- ation of alcohol in Appellant's body. But, as the FN14. See Burks v. State, No. McNeely court held, the natural dissipation of alco- 02–13–00560–CR, –––S.W.3d ––––, ––––, hol in the bloodstream does not constitute an exi- 2015 WL 115964, at *3 (Tex.App.–Fort gency in every case sufficient to justify conducting Worth Jan. 8, 2015, no pet. h.) (noting that FN11 a blood test without a warrant. Examining the “there is no exception to our statutory ex- totality of the circumstances here, we*3 see no clusionary rule for an officer's good faith basis to justify Appellant's blood draw on the reliance on a statute”). FN12 ground of exigency. The records show that the Arlington Police Department and the Arlington ju- FN15. See id. at ––––, 2015 WL 115964, diciary, in a commendable commitment to assuring at *1, *3 (reversing trial court's order Fourth Amendment protections, have established a denying motion to suppress in DWI-felony protocol and procedure to obtain search warrants repetition blood-draw case). efficiently and without undue delay. In 2011 alone, Harm 288 search warrants were procured. The records re- [7][8]Because the denial of Appellant's mo- flect that this procedure, described by Officer Mar- tions to suppress and the admission of the fruits of tin, Sergeant Steve Chow, also of the City of Ar- the unlawful search of Appellant by means of a lington Police Department, and Judge Stewart Mil- warrantless, nonconsensual blood draw violated his ner, the chief municipal judge of the City of Arling- Fourth Amendment constitutional rights, we per- ton, was efficient and available twenty-four hours a form the harm analysis mandated by rule 44.2(a) of day, seven days a week, holidays included. The re- the Rules of Appellate Procedure:

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If the appellate record in a criminal case reveals FN19. See Tex.R.App. P. 47.1. constitutional error that is subject to harmless er- ror review, the court of appeals must reverse a Conclusion judgment of conviction or punishment unless the Having held that the trial court reversibly erred court determines beyond a reasonable doubt that by denying Appellant's motions to suppress, we re- the error did not contribute to the conviction or verse the trial court's judgments and remand both FN16 causes to the trial court for a new trial or other pro- punishment. ceedings consistent with this opinion.

FN16. Tex.R.App. P. 44.2(a). GABRIEL, J., filed a concurring opinion in which LIVINGSTON, C.J., joins. In each case, if the denial of the motion to sup- LEE GABRIEL, JUSTICE, concurring. press contributed in some measure to the State's *4 I agree that the trial court's judgments must leverage in the plea-bargaining process and may be reversed and remanded for further, consistent have contributed to Appellant's decision to relin- proceedings. I write separately to clarify the para- quish his constitutional rights of trial and confront- meters of this court's holdings. ation, we cannot conclude beyond a reasonable doubt that the error did not contribute to the convic- This case involves a mandatory blood draw un- FN17 tion or punishment. As a result, the error can- der transportation code section 724.012(b)(1), not be found harmless. We cannot say that the deni- which implies consent for a breath or blood sample al of Appellant's motion to suppress the results of if a suspected impaired driver is in an accident and the blood test did not contribute to his decision to someone other than the impaired driver “has enter a guilty plea in each case. Consequently, we suffered bodily injury and been transported to a cannot say that the erroneous denial of his motion hospital ... for medical treatment.” Tex. Transp. to suppress did not contribute to his conviction in Code Ann. § 724.012(b)(1)(C) (West 2011). The FN18 each case. Because the trial court reversibly court of criminal appeals, in a case involving sec- erred by denying Appellant's motion to suppress in tion 724.012(b)(3), recently held that “a nonconsen- each case, we are compelled to sustain his first sual search of a DWI suspect's blood conducted point in each case. We therefore do not reach his pursuant to the mandatory-blood-draw and implied- remaining point in each case, which challenges the consent provisions in the Transportation Code, FN19 blood draw under section 724.017. when undertaken in the absence of a warrant or any applicable exception to the warrant requirement, vi- FN17. See McKenna v. State, 780 S.W.2d olates the Fourth Amendment.” State v. Villarreal, 797, 799–800 (Tex.Crim.App.1989); Cas- No. PD–0306–14, ––– S.W.3d ––––, ––––, 2014 tleberry v. State, 100 S.W.3d 400, 404 WL 6734178, at *21 (Tex.Crim.App. Nov. 26, (Tex.App.–San Antonio 2002, no pet.); 2014) (5–4 opinion). Thus, the warrantless blood Woodberry v. State, 856 S.W.2d 453, draw under section 724.012(b)(1) in this case viol- 458–59 (Tex.App.–Amarillo 1993, no pet.) ated the Fourth Amendment and must be sup- . pressed in the absence of any exception to the war- rant requirement. FN18. See Burks, ––– S.W.3d at ––––, 2015 WL 115964, at *3 (implicitly holding I agree that there are no exceptions to the war- error harmful by reversing trial court's rant requirement in this case because the record re- judgment and order denying motion to sup- FN1 veals (1) no exigency; (2) that Appellant did press in DWI-felony repetition blood draw not consent to the search; and (3) that the auto- case). mobile, search-incident-to-arrest, and special-needs

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exceptions are inapplicable. See id. at –––– – ––––, no exigency sufficient to justify a warrant- 2014 WL 6734178, at *10–16; Lloyd v. State, No. less search. 05–13–01004–CR, ––– S.W.3d ––––, ––––, 2014 WL 7249747, at *3 (Tex.App.–Dallas Dec. 22, *5 Having found error, the opinion correctly 2014, no pet. h.). However, the police officers at proceeds to a harm analysis under rule 44.2(a). the time of the blood draw did nothing wrong by re- Tex.R.App. P. 44.2(a). Neither Appellant nor the lying on a then-valid statute to compel a blood spe- State briefed whether any harm flowed from the cimen without a warrant when faced with two constitutional error; thus, it is unclear whether Ap- people who were severely injured after Appellant pellant argues that the error contributed to his de- was in a wreck with them, one of whom—a ten- cision to plead guilty, to his punishment as assessed year-old boy—later died. Similarly, the trial court by the jury, or both. But the court of criminal ap- understandably held that section 724.012(b)(1) spe- peals has indicated that even though the blood-test cifically authorized the blood draw and was, in ef- results were admitted only during punishment, the fect, an exception to the warrant requirement. harm from the trial court's denial of appellant's mo- Whether or not the police had a “commendable ... tion to suppress, if any, is deeply connected to Ap- protocol” in place to secure a warrant as stated by pellant's decision to plead guilty. See Holmes v. the opinion, the police justifiably relied on an au- State, 323 S.W.3d 163, 172–73 thorizing statute to compel the warrantless search. I (Tex.Crim.App.2009); see also Sanchez v. State, 98 recognize that there is no good-faith exception to S.W.3d 349, 357–58 (Tex.App.–Houston [1st Dist.] the exclusionary rule, see Burks v. State, No. 2003, pet. ref'd). Thus, any harm arising from the 02–13–00560–CR, –––S.W.3d ––––, ––––, 2015 trial court's denial should be looked at relative to WL 115964, at *3 (Tex.App.–Fort Worth Jan. 8, Appellant's decision to plead guilty. See Gentry v. 2015, no pet. h.), but I believe it imperative to State, No. 12–13–00168–CR, 2014 WL 4215544, at avoid any implication that the police officers or the *4 (Tex.App.–Tyler Aug. 27, 2014, pet. filed) trial court in this case were willfully or knowingly (mem. op., not designated for publication) (in an disregarding constitutional requirements. In any appeal from DWI conviction where defendant event, the State failed to prove under the totality of pleaded guilty and jury assessed punishment and the circumstances that the warrantless search was after concluding warrantless blood draw violated nevertheless reasonable based on an established ex- Fourth Amendment, appellate court considered ception to the warrant requirement. See Amador v. “whether the trial court's admission of the blood State, 221 S.W.3d 666, 672–73 test evidence contributed to Appellant's decision to (Tex.Crim.App.2006) (holding once defendant es- plead ‘guilty’ ”); Forsyth v. State, 438 S.W.3d 216, tablishes a search or seizure occurred without a 225 (Tex.App.–Eastland 2014, pet. ref'd) (same warrant and rebuts the presumption of proper police holding in case where defendant pleaded guilty and conduct, the burden shifts to the State to prove the trial court assessed punishment); Jaganathan v. reasonableness of the search or seizure). State, 438 S.W.3d 823, 828–29 (Tex.App.–Houston [14th Dist.] 2014, pet. granted) (same). But see FN1. The opinion states that the “only pos- Noriega v. State, No. 04–13–00744–CR, 2014 WL sible exigency suggested by the record is 7339735, at *2 (Tex.App.–San Antonio Dec. 23, the natural dissipation of alcohol in Appel- 2014, no pet. h.) (mem. op., not designated for pub- lant's body.” I disagree to the extent this lication) (concluding defendant who pleaded guilty statement could be construed as a holding to DWI and had jury assess punishment was not that dissipation is the only arguable exi- harmed by admission at punishment of blood-test gency in this type of case. I agree, results obtained without a warrant because “the jury however, that the record in this case shows would [not] have assigned much weight to the stat-

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utory blood draw evidence in view of the other evidence of the extent of defendant's intoxication”).

Under rule 44.2(a), we must reverse the trial court's judgments unless we can determine beyond a reasonable doubt that the error did not contribute to Appellant's decision to plead guilty. In other words, we must conclude beyond a reasonable doubt that the trial court's failure to suppress the blood-test results did not influence Appellant's de- cision to plead guilty. Forsyth, 438 S.W.3d at 225. The record shows that after the trial court an- nounced that it was denying the motions to sup- press, Appellant's counsel stated that it was Appel- lant's “intention ... to enter pleas of guilty” and that he specifically intended to preserve his right to ap- peal the trial court's suppression rulings. Counsel further stated that Appellant would “enter a plea to this now” to “not fuss about things that aren't in dispute” and would take up the “legal issue” later on appeal. I believe these statements by counsel preclude a finding that Appellant's decision to plead guilty was not influenced by the trial court's denials of his motions to suppress. See Gentry, 2014 WL 4215544, at *4; Jaganathan, 438 S.W.3d at 829.

With these comments, I concur in the court's reversal of the trial court's judgments and remand for further, consistent proceedings.

LIVINGSTON, C.J. Joins.

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