Howard, Michael D. A/K/A Howard, Michael David

• Court: Court of Appeals of Texas
• Decided: August 7, 2015
• Docket: PD-1011-15
• Status: Published

Opinion

PD-1011-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 8/5/2015 3:04:12 PM AUGUST 7, 2015 Accepted 8/7/2015 10:53:51 AM ABEL ACOSTA No. 01-14-00112-CR CLERK

TO THE COURT OF CRIMINAL APPEALS

OF THE STATE OF TEXAS

MICHAEL D. HOWARD A/K/A MICHAEL DAVID HOWARD, Appellant

v.

THE STATE OF TEXAS, Appellee

Appeal from Tom Green County

* * * * *

STATE’S PETITION FOR DISCRETIONARY REVIEW

LISA C. McMINN State Prosecuting Attorney Bar I.D. No. 13803300

STACEY M. GOLDSTEIN Assistant State Prosecuting Attorney Bar I.D. No. 24031632

P.O. Box 13046 Austin, Texas 78711 information@spa.texas.gov 512-463-1660 (Telephone) 512-463-5724 (Fax) IDENTITY OF JUDGE, PARTIES, AND COUNSEL

* The parties to the trial court’s judgment are the State of Texas and Appellant, Michael D. Howard a/k/a Michael David Howard

* The trial judge was the Hon. Tom Gossett, 391st Judicial District.

* Counsel for the State at trial and before the Court of Appeals was Meagan White, Assistant District Attorney, Tom Green County, 123 West Beauregard, San Angelo, Texas 76903.

* Counsel for the State before the Court of Criminal Appeals is Stacey M. Goldstein, Assistant State Prosecuting Attorney, P.O. Box 13046, Austin, Texas 78711.

* Counsel for Appellant at trial was Evan Pierce-Jones, 125 South Washington Street, San Angelo, Texas 76901.

* Counsel for Appellant before the Court of Appeals was John E. Sutton, P.O. Box 871, San Angelo, Texas 76902. TABLE OF CONTENTS

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

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

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

STATEMENT OF PROCEDURAL HISTORY. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

GROUNDS FOR REVIEW.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

1. Is a warrantless, mandatory blood draw conducted pursuant to T EX. T RANS. C ODE § 724.012(b)(3)(B)—the repeat offender provision— reasonable under the Fourth Amendment?

2. Do the federal and state (T EX. C ODE C RIM. P ROC. art. 38.23) exclusionary rules require suppression when, at the time of the search, the warrantless blood draw was authorized by T EX. T RANS. C ODE § 724.012(b)(3)(B) and binding caselaw?

ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3-4

PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

APPENDIX (Opinion of the Court of Appeals)

i INDEX OF AUTHORITIES

Cases

Cole v. State, PD-0077-15 (granted Apr. 22, 2015).. . . . . . . . . . . . . . . . . . . . 3 n.1, 4

Douds v. State, PD-0857-14 (granted Sept. 17, 2014; argued and submitted Mar. 18, 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Holidy v. State, No. PD-0622-14 (granted Aug. 20, 2014; argued and submitted Jan. 14, 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Howard v. State, No. 01-14-00112-CR, 2015 Tex. App. LEXIS 7635 (Tex. App.—Houston [1st] July 23, 2015) (not designated for publication). . . . . . . . . 2-3

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

Reeder v. State, No. PD-0601-14 (granted Aug. 20, 2014; argued and submitted Jan. 15, 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

State v. Villarreal, PD-0306-14, 2014 Tex. Crim. App. 1898 (Tex. Crim. App. Nov. 26, 2014) (reh’g granted Feb. 25, 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Weems v. State, No. PD-0635-14 (granted Aug. 20, 2014; argued and submitted Nov. 17, 2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 n.1

Statutes

T EX. C ODE C RIM. P ROC. art. 38.23. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

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

ii No. 01-14-00112-CR

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

The State Prosecuting Attorney respectfully urges this Court to grant review.

STATEMENT REGARDING ORAL ARGUMENT

The State does not request oral argument.

STATEMENT OF THE CASE

The trial court denied Appellant’s suppression motion that challenged the

warrantless draw of his blood under T EX. T RANS. C ODE § 724.012(b)(3)(B)—the

1 repeat offender provision—based on the Supreme Court’s then-recent decision in

Missouri v. McNeely, 133 S. Ct. 1552 (2013). 1 CR 82-86, 97-102, 105-07. A jury

later found him guilty of felony DWI and sentenced him to sixteen years’

imprisonment. 1 CR 147-49.

STATEMENT OF PROCEDURAL HISTORY

The court of appeals reversed the denial of Appellant’s motion to suppress and,

after concluding that the denial was harmful, reversed the trial court’s judgment.

Howard v. State, No. 01-14-00112-CR, 2015 Tex. App. LEXIS 7635 (Tex.

App.—Houston [1st] July 23, 2015) (not designated for publication). The State did

not seek rehearing.

GROUNDS FOR REVIEW

1. Is a warrantless, mandatory blood draw conducted pursuant to T EX. T RANS. C ODE § 724.012(b)(3)(B)—the repeat offender provision— reasonable under the Fourth Amendment?

2. Do the federal and state (T EX. C ODE C RIM. P ROC. art. 38.23) exclusionary rules require suppression when, at the time of the search, the warrantless blood draw was authorized by T EX. T RANS. C ODE § 724.012(b)(3)(B) and binding caselaw?

2 ARGUMENT

Concluding that the blood draw was unreasonable, the court of appeals reversed

the trial court’s denial of Appellant’s suppression motion. Howard, 2015 Tex. App.

LEXIS 7635, at *1, 12. It held that Section 724.012(b)(3)(B) does not constitute a

valid a exception to the warrant requirement. Id. at *6-8. Regarding the remedy, the

court determined that the federal and state exclusionary rules require that the blood

test results be suppressed. Id. at *8-11.

1. The draw was reasonable under the Fourth Amendment.

The warrantless blood draw, conducted under Section 724.012(b)(3)(B), was

reasonable under Fourth Amendment jurisprudence. Review should be granted

because the same issue is pending on rehearing in State v. Villarreal, PD-0306-14,

2014 Tex. Crim. App. 1898 (Tex. Crim. App. Nov. 26, 2014) (reh’g granted Feb. 25,

2015), and in Holidy v. State, No. PD-0622-14 (granted Aug. 20, 2014; argued and

submitted Jan. 14, 2015), Reeder v. State, No. PD-0601-14 (granted Aug. 20, 2014;

argued and submitted Jan. 15, 2015), and Douds v. State, PD-0857-14 (granted Sept.

17, 2014; argued and submitted Mar. 18, 2015).1

1 Weems v. State, No. PD-0635-14 (granted Aug. 20, 2014; argued and submitted Nov. 17, 2014), and Cole v. State, PD-0077-15 (granted Apr. 22, 2015), do not implicate the repeat-offender provision.

3 2. Even if the Fourth Amendment was violated, the federal and state exclusionary rules do not require suppression because police relied on binding law authorizing the search at the time it was conducted.

In Cole, PD-0077-15 (granted Apr. 22, 2015), this Court also granted review to

decide whether the remedy of suppression under the federal and state (T EX. C ODE

C RIM. P ROC. art. 38.23) exclusionary rules, which are intended to deter police

misconduct, is appropriate when the blood draw was conducted pursuant to a

presumptively valid statute and case law interpreting it. Therefore, for the reasons

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

warranted.

4 PRAYER FOR RELIEF

WHEREFORE, the State of Texas prays that the Court of Criminal Appeals

grant review and reverse the decision of the court of appeals.

Respectfully submitted,

LISA C. McMINN State Prosecuting Attorney Bar I.D. No.13803300

/s/ STACEY M. GOLDSTEIN Assistant State Prosecuting Attorney Bar I.D. No. 24031632

P.O. Box 13046 Austin, Texas 78711 information@spa.texas.gov 512-463-1660 (Telephone) 512-463-5724 (Fax)

5 CERTIFICATE OF COMPLIANCE

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

document contains 357 words, exclusive of the items excepted by T EX. R. A PP. P.

9.4(i)(1).

/s/ STACEY M. GOLDSTEIN Assistant State Prosecuting Attorney

6 CERTIFICATE OF SERVICE

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

Review has been served on August 5, 2015, via certified electronic service provider

or email to:

Hon. Meagan White Tom Green County District Attorney’s Office 123 West Beauregard San Angelo, Texas 76903 meagan.white@co.tom-green.tx.us

Hon. John E. Sutton P.O. Box 871 San Angelo, Texas 76902 jsuttlaw@wcc.net

7 APPENDIX MICHAEL D. HOWARD A/K/A MICHAEL DAVID HOWARD, Appellant v. THE STATE OF TEXAS, Appellee

NO. 01-14-00112-CR

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

2015 Tex. App. LEXIS 7635

July 23, 2015, Opinion Issued

NOTICE: PLEASE CONSULT THE contends that his conviction should be TEXAS RULES OF APPELLATE reversed because the trial court erred in PROCEDURE FOR CITATION OF denying his motion to suppress evidence UNPUBLISHED OPINIONS. relating to the warrantless blood draw. We reverse the trial court's judgment and PRIOR HISTORY: [*1] On Appeal remand for a new trial. 2

from the 391st District Court, Tom Green County, Texas. Trial Court Case No. D-12- 1 See T EX. P ENAL C ODE A NN. §§ 1004-SB. 12.42(a), 49.09(b)(2) (West Supp. 2014) (third-degree felony enhanced by prior felony conviction, thereby JUDGES: Panel consists of Chief Justice elevating punishment range to that of Radack and Justices Brown and Lloyd. second-degree felony). 2 This appeal, originally filed in the OPINION BY: Russell Lloyd Third Court of Appeals, Austin, Texas, was transferred to the First OPINION Court of Appeals, Houston, Texas. See T EX. G OV'T C ODE A NN. § 73.001 MEMORANDUM OPINION (West 2013) (authorizing transfer of cases). A jury convicted appellant Michael D. Howard a/k/a Michael David Howard of Background felony driving while intoxicated. The trial 1

court assessed his punishment at sixteen Howard was stopped for a traffic years' confinement in the Institutional violation and was subsequently arrested for Division of the Texas Department of DWI. After Howard refused to provide [*2] Criminal Justice. On appeal, Howard a breath specimen, the arresting officer transported him to a hospital where a Miller, called Sergeant Scott and informed warrantless blood draw was taken pursuant him that Howard had two previous DWI to Texas Transportation Code section convictions and had refused to provide a 724.012(b)(3)(B). See T EX. T RANSP. C ODE breath specimen. At that point, Sergeant A NN. § 724.012(b)(3)(B) (West 2011). Scott met Howard and Officers Miller and Howard filed a motion to suppress the N. Anderson at the hospital where Sergeant blood analysis results, challenging the Scott assisted the officers in conducting a w arrantless blood draw on Fourth mandatory blood draw. Although Howard Amendment grounds. 3 had agreed to provide a blood specimen at the jail, he revoked his consent to the blood 3 Howard also argued that the draw at the hospital. Sergeant Scott testified warrantless blood draw violated the that the officers did not attempt to obtain a Texas Constitution. T EX. C ONST. art. I, warrant because once Howard refused to §§ 9, 10. We need not consider provide a breath specimen at the jail they whether the warrantless blood draw "had the mandatory blood draw in effect." violates the state constitution, Sergeant Scott testified that he believed that however, because Howard did not Howard's consent to the blood draw was separately brief his state and federal irrelevant in light of the mandatory blood constitutional issues or argue that the draw statute. Texas Constitution provides greater The trial court denied Howard's motion protection than the United States to suppress. In its findings of fact and Constitution. See Keehn v. State, 279 conclusions of law, the trial court found that S.W.3d 330, 334 (Tex. Crim. App. there was no testimony as to any exigent 2009) (not reaching defendant's state circumstances that required the drawing of a c o n s ti tu t i o n a l i s s u e r e g a r d i n g blood specimen from [*4] Howard without warrantless search because defendant a search warrant and that the blood did not brief state and federal specimen obtained from Howard was constitutional issues separately); "mandated by C hapter 724, Texas Black v. State, 26 S.W.3d 895, 896 Transportation Code." The trial court also (Tex. Crim. App. 2000) ("The concluded that the warrantless blood draw [defendant] offers no reason for was "authorized under the implied consent construing the Texas Constitution as law of Chapter 724, Texas Transportation conferring greater protection in this Code." area of the law than the federal constitution, and therefore we will not At trial, Officer Miller testified about address his state constitutional the circumstances of the traffic stop that led argument."). to Howard's arrest and to his observations of Howard. Officer Miller testified that At the pre-trial hearing on Howard's based on his observations, he believed that motion to suppress, Sergeant A. Scott Howard was intoxicated. testified that he assisted Officer H. Miller in obtaining [*3] Howard's blood specimen. O fficer A nderson adm inistered Sergeant Scott testified that he remained at standardized field sobriety tests to Howard the scene to inventory Howard's vehicle at the scene. Officer Anderson testified that after Howard was arrested and transported although he was previously certified to to the jail. The arresting officer, Officer administer such tests, his certification had lapsed as of the date of the arrest. He also testified that all of the tests he administered witnesses' credibility, and it may choose to to Howard were flawed in some respect. believe or disbelieve all or any part of the Although the court allowed Officers Miller witnesses' testimony. Maxwell v. State, 73 and Anderson to testify regarding their S.W.3d 278, 281 (Tex. Crim. App. 2002); observations of Howard, Officer Anderson State v. Ross, 32 S.W.3d 853, 855 (Tex. was prohibited from opining about whether Crim. App. 2000). he believed that Howard was intoxicated When the trial [*6] court enters findings based upon his performance on the field of fact, the appellate court considers all of sobriety tests. the evidence in the record and "must Dusky Wells, the medical technologist determine whether the evidence supports who drew Howard's blood specimen, [*5] those facts by viewing the evidence in favor and Marissa Silva, the forensic scientist of the trial court's ruling." Castro v. State, with the Texas Department of Public Safety 373 S.W.3d 159, 164 (Tex. App--San Laboratory in Midland who analyzed the Antonio 2012, no pet.) (citing Keehn v. blood specimen, also testified for the State. State, 279 S.W.3d 330, 334 (Tex. Crim. App. According to Silva, Howard's blood sample 2009)). Additionally, an appellate court contained 0.198 grams of ethanol per 100 must "uphold the trial court's ruling if it is milliliters, which was over twice the legal supported by the record and correct under limit in Texas. any theory of law applicable to the case." State v. Iduarte, 268 S.W.3d 544, 548 (Tex. Warrantless Blood Draw Crim. App. 2008). Howard contends that the trial court A blood draw conducted at the direction erred in denying his motion to suppress the of a law enforcement officer is a search blood analysis results because the evidence subject to the reasonableness requirement of resulted from a warrantless, non-consensual the Fourth Amendment. Schmerber v. blood draw that violated the Fourth California, 384 U.S. 757, 767, 86 S. Ct. Amendment. 1826, 1834, 16 L. Ed. 2d 908 (1966); State v. Villarreal, No. PD-0306-14, 2014 Tex. A. Standard of Review and Applicable Crim. App. LEXIS 1898, 2014 WL 6734178, Law at *9 (Tex. Crim. App. Nov. 26, 2014) (reh'g We review a trial court's denial of a granted). A warrantless search of a person is unreasonable unless it falls within a motion to suppress evidence under a recognized exception to the warrant bifurcated standard of review. Turrubiate v. requirement. Villarreal, 2014 Tex. Crim. State, 399 S.W.3d 147, 150 (Tex. Crim. App. App. LEXIS 1898, 2014 WL 6734178, at *8 2013). We give almost total deference to a (citing Missouri v. McNeely, 133 S. Ct. trial court's determination of historical facts, 1552, 1558, 185 L. Ed. 2d 696 (2013)); see especially if those determinations turn on also Katz v. United States, 389 U.S. 347, witness credibility or demeanor, and we 357, 88 S. Ct. 507, 514, 19 L. Ed. 2d 576 review de novo the trial court's application (1967) (holding that warrantless search or of the law to facts not based on an seizure is per se unreasonable unless it falls evaluation of credibility and demeanor. under recognized exception to warrant Gonzales v. State, 369 S.W.3d 851, 854 requirement). Voluntary consent to search (Tex. Crim. App. 2012). At a suppression and the existence of exigent circumstances hearing, the trial court is the sole and are two of the recognized exceptions. See exclusive trier of fact and judge of the McNeely, 133 S. Ct. at 1558; Villarreal, Tex. App. LEXIS 2492, 2015 WL 1245469, 2014 Tex. Crim. App. LEXIS 1898, 2014 at *8 (Tex. App.--Houston [1st Dist.] Mar. WL 6734178, at *8. 17, 2015, pet. filed). The Court of Appeals also rejected the argument that the implied B. Mandatory Blood Draw/Implied consent statute (§ 724.011(a)) constitutes an Consent Statutes exception to the warrant requirement and held that "in the context [*8] of a The State argues that the trial court did nonconsensual, warrantless bodily search of not abuse its discretion in admitting the a person suspected of criminal activity, a blood analysis results because the statute providing for irrevocable implied warrantless blood draw was mandated by consent cannot supply the type of voluntary Transportation Code section consent necessary to establish an exception 724.012(b)(3)(B), and alternatively, [*7] to the Fourth Amendment warrant that Howard is deemed to have consented to requirement." Villarreal, 2014 Tex. Crim. the blood draw pursuant to Transportation App. LEXIS 1898, 2014 WL 6734178, at Code section 724.011(a). See T EX. T RANSP. *14. The court concluded that "implied C ODE A NN. § 724.011(a) (West 2011) consent that has been withdrawn or revoked (providing that person arrested for DWI "is by a suspect cannot serve as a substitute for deemed to have consented, subject to this the free and voluntary consent that the chapter, to submit to the taking of one or Fourth Amendment requires." 2014 Tex. more specimens of the person's breath or Crim. App. LEXIS 1898, [WL] at *11. In blood for analysis to determine the alcohol this case, the State conceded at the concentration"); id. § 724.012(b)(3)(B) suppression hearing that Howard revoked (providing for mandatory-blood-specimen his consent to the blood draw at the collection for person twice before convicted hospital. of DWI). We construe these arguments as asserting that the mandatory blood draw C. Exclusionary Rule statute and the implied consent statute each constitute an exception to the Fourth The State further contends that even if Amendment's warrant requirement. the blood draw violated Howard's Fourth Amendment rights, the trial court was While this case has been pending on nevertheless correct in admitting the appeal, the Court of Criminal Appeals evidence because the state and federal considered the question of whether a exclusionary rules are inapplicable. warrantless search of a DWI suspect's blood Specifically, the State argues that there are conducted pursuant to section 724.012(b) applicable good-faith exceptions to the complied with the Fourth Amendment. See federal exclusionary rule and the Texas Villarreal, 2014 Tex. Crim. App. LEXIS exclusionary rule does not apply because 1898, 2014 WL 6734178, at *6-8. In doing the police did not obtain the evidence in so, the court rejected both arguments violation of the law, as the law existed at advanced by the State. Specifically, the the time of the blood draw. court held that the mandatory blood draw statute (§ 724.012(b)) does not constitute a The State argues that the federal recognized exception to the warrant exclusionary rule does not bar admission of requirement. See 2014 Tex. Crim. App. the evidence in this case because the officer LEXIS 1898, [WL] at *8, 17-18; see also relied [*9] in good faith on the mandatory Perez v. State, No. 01-12-01001-CR, 2015 blood draw statute and on binding judicial precedent. See Davis v. United States, 131 (declining to apply another federal good- S. Ct. 2419, 2423-24, 2434, 180 L. Ed. 2d faith exception to Texas exclusionary rule 285 (2011) (stating that officer's good-faith because federal exception was "inconsistent reliance on binding case law is exception to with the text of article 38.23"); see also federal exclusionary rule); Illinois v. Krull, Weems v. State, 434 S.W.3d 655, 666 (Tex. 480 U.S. 340, 360, 107 S. Ct. 1160, 1172, App.--San Antonio 2014, pet. granted) 94 L. Ed. 2d 364 (1987) (stating that (rejecting argument that officer's good-faith officer's good-faith reliance on statute is reliance on mandatory blood draw and exception to federal exclusionary rule). implied consent statutes constituted good- faith exception to article 38.23). The Texas exclusionary rule provides that "[n]o evidence obtained . . . in violation The State also argues that the Texas of any provisions of the Constitution or exclusionary rule is inapplicable because laws of the State of Texas, or of the "[a]t the time of the blood draw, Texas case Constitution or laws of the United States of law clearly held that alcohol dissipation America, shall be admitted in evidence alone constituted exigent circumstances in against the accused on the trial of any DWI cases." According to the State, criminal case." T EX. C ODE C RIM. P ROC. art. "McNeely changed the law when it rejected 38.23 (West 2005). The Court of Criminal a per se exigency in DWl cases, but A p p eals has previously held that McNeely was issued after the search in this "exceptions to the federal exclusionary rule case." This court recently addressed a only apply to the Texas statutory similar argument and concluded that exclusionary rule if they are consistent with M cN eely did not set out a new the plain language of the statute." Douds v. constitutional rule, but rather clarified State, 434 S.W.3d 842, 861 (Tex. App.-- Schmerber and reaffirmed the Supreme Houston [14th Dist.] 2014, pet. granted). Court's prior rulings regarding the Unlike the federal rule, the plain language admissibility [*11] of blood evidence of Texas's statutory exclusionary rule only acquired without a warrant. See Tercero, expressly recognizes one good-faith 2015 Tex. App. LEXIS 3284, 2015 WL exception and that is for "a law enforcement 1544519, at *7. officer acting in objective good faith reliance upon a warrant issued by a neutral D. Harm Analysis magistrate based on probable cause." T EX. We review the harm resulting from a C ODE C RIM. P ROC. art. 38.23(b) (emphasis trial court's erroneous denial of a motion to added). Accordingly, we decline [*10] to suppress and subsequent admission of apply the federal good-faith exceptions evidence obtained in violation of the Fourth urged by the State to the Texas exclusionary Amendment under the constitutional rule set forth in Article 38.23 because the harmless-error standard. T EX. R. A PP. P. federal exceptions are not "consistent with 44.2(a); see Hernandez v. State, 60 S.W.3d the plain language of the [Texas] statute," 106, 108 (Tex. Crim. App. 2001) which only recognizes one exception based (mandating application of rule 44.2(a) to on an officer's good-faith reliance upon a harm analysis of trial court's erroneous warrant. See State v. Tercero, No. 01-14- denial of motion to suppress under Fourth 00120-CR, 2015 Tex. App. LEXIS 3284, Amendment). This standard requires us to 2015 WL 1544519, at *7 (Tex. App.-- reverse the trial court's judgment of Houston [1st Dist.] Apr. 2, 2015, pet. filed) conviction unless we determine "beyond a cannot determine beyond a reasonable reasonable doubt that the error did not doubt that the error did not contribute to contribute to the conviction or punishment." Howard's conviction. See Perez, 2015 Tex. T EX. R. A PP. P. 44.2(a). App. LEXIS 2492, 2015 WL 1245469, at *9- 10; Weems, 434 S.W.3d at 667. Here, the jury charge instructed the jurors that "[a] person is deemed to be We conclude that the warrantless taking intoxicated within the meaning of the law of Howard's blood sample in this case when he does not have the normal use of his violated his Fourth Amendment rights by mental or physical faculties by reason of the requiring him to submit to a blood test introduction of alcohol in his body, or without a warrant or a recognized exception having an alcohol concentration of 0.08 or to the warrant requirement and that this more." The State presented the testimony of error was harmful. Officers Miller and Anderson regarding We sustain Howard's complaint that the Howard's conduct leading up to and trial court erred in denying his motion to following his arrest as evidence of suppress evidence relating to th e intoxication. The State also presented the warrantless blood draw. testimony of the medical technologist who took Howard's blood sample on the night he Conclusion was arrested. [*12] Finally, the State presented the testimony of a forensic We reverse the trial court's judgment scientist who testified that Howard's blood and remand for a new trial consistent with sample contained 0.198 grams of ethanol this opinion. per 100 milliliters and that this amount of Russell Lloyd alcohol was over twice the legal limit in Texas. Justice

Given the testimony regarding the Panel consists of Chief Justice Radack taking of Howard's blood sample and his and Justices Brown and Lloyd. toxicology results and the jury's instruction Do not publish. T EX. R. A PP. P. 47.2(b). that intoxication means, in part, "having an alcohol concentration of 0.08 or more," we