Leal, Jonathan Albert

• Court: Court of Appeals of Texas
• Decided: July 7, 2015
• Docket: PD-0836-15
• Status: Published

Opinion

PD-0836-15 PD-0836-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 7/6/2015 2:02:07 PM Accepted 7/7/2015 3:39:48 PM ABEL ACOSTA No. 14-13-00208-CR CLERK

TO THE COURT OF CRIMINAL APPEALS

OF THE STATE OF TEXAS

JONATHAN ALBERT LEAL, Appellant

v.

THE STATE OF TEXAS, Appellee

Appeal from Galveston County

* * * * *

STATE’S PETITION FOR DISCRETIONARY REVIEW

July 7, 2015 LISA C. McMINN State Prosecuting Attorney Bar I.D. No. 13803300

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

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

* The parties to the trial court’s judgment are the State of Texas and Appellant, Jonathan Albert Leal.

* The trial Judge was Hon. John Ellisor.

* Counsel for the State at trial were Daniel Eugene Lazarine, Jennifer Stabe, and Jared Robinson, Galveston County Justice Center, 600 59th Street, Suite 1001, Galveston, Texas 77511.

* Counsel for the State before the Court of Appeals was Allison Lindblade, 600 59th Street, Suite 1001, P.O. Box 17254, Galveston, Texas 77551.

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

* Counsel for Appellant at trial and before the Court of Appeals was Hon. Mark W. Stevens, P.O. Box 8118, Galveston, Texas 77553. TABLE OF CONTENTS

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

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

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

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

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

1. Is a challenge to a warrantless blood draw under T EX. T RANS. C ODE § 724.012(b)(3)(B) preserved for review when Appellant did not explain the impact of Missouri v. McNeely in his suppression motion or at trial but did so later on rehearing?

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

3. Do the federal and state (T EX. C ODE C RIM. P ROC. art. 38.23) exclusionary rules require suppression when, at the time of the search, the warrantless blood draw was authorized by T EX. T RANS. C ODE § 724.012(b)(1)(A) and binding caselaw?

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

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

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

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

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

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

APPENDIX C (Amended Motion to Suppress)

ii INDEX OF AUTHORITIES

Cases

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

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

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

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

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

Douds v. State, PD-0857-14 (granted Sept. 17, 2014; argued and submitted Mar. 18, 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

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

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

Holidy v. State, No. PD-0622-14 (granted Aug. 20, 2014; argued and submitted Jan. 14, 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

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

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

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

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

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

Leal v. State, __ S.W.3d __, No. 14-13-00208-CR, 2015 Tex. App. LEXIS 6460 (Tex. App.—Houston [14th] 2015) (op. on remand). . . . . . . . . . . . . . . . . . . . . . . . 2-3, 10

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

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

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

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

Reeder v. State, No. PD-0601-14 (granted Aug. 20, 2014; argued and submitted Jan. 15, 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

State v. Villarreal, No. PD-0306-14, 2014 Tex. Crim. App. LEXIS 1898 (Tex. Crim. App. Nov. 26, 2014, reh’g granted). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 10 n.11

Weems v. State, No. PD-0635-14 (granted Aug. 20, 2014; argued and submitted Nov. 17, 2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 n.12

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

Statutes

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

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

Rule

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

Act

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

iv No. 14-13-00208-CR

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

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

STATEMENT REGARDING ORAL ARGUMENT

The State does not request oral argument.

STATEMENT OF THE CASE

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

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

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

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

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

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

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

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

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

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

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

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

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

47.

STATEMENT OF PROCEDURAL HISTORY

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

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

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

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

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

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

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

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

GROUNDS FOR REVIEW

1. Is a challenge to a warrantless blood draw under T EX. T RANS. C ODE § 724.012(b)(3)(B) preserved for review when Appellant did not explain the impact of Missouri v. McNeely in his suppression motion or at trial but did so later on rehearing?

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

3. Do the federal and state (T EX. C ODE C RIM. P ROC. art. 38.23) exclusionary rules require suppression when, at the time of the search, the warrantless blood draw was authorized by T EX. T RANS. C ODE § 724.012(b)(1)(A) and binding caselaw?

ARGUMENT

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

A. Suppression Motion

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

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

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

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

Immediately following, he asserted:

1 It also reasserted the grounds presented in his first motion to suppress, which challenged the validity of the stop. 1 CR 27-28.

3 The matter is presently under review before the U.S. Supreme Court. Missouri v. McNeely, USSC Docket No. 11-1425, was argued on January 9, 2013. Briefly, the Supreme Court of Missouri apparently ruled that a warrantless blood draw violated the Eighth Amendment, and the United States Supreme Court granted cert. The publicly available recording of the arguments before the U.S. Supreme Court . . . suggest that a significant number of justices were openly concerned about the prospect of a government official approaching an unwilling citizen with a needle. Such information is not of course binding or in many instances predictive of the ultimate ruling, but they do suggest that the issue is a close one and should be carefully reviewed before this court commits resources to a trial which may be fatally flawed from the beginning.

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

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

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

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

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

admissible. 4 RR 92.

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

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

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

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

Thank you.” 4 RR 161.

B. Supplemental New Trial Motion

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

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

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

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

provision “unconstitutionally substitutes two prior convictions for any constitutional

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

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

C. Court of Appeals

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

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

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

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

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

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

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

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

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

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

2 As noted by the court of appeals, Appellant’s amended motion was untimely; however, the trial court granted Appellant leave to file, and the State did not object. Leal, 2015 Tex. App. LEXIS 6460, at *5; 7 RR 8.

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

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

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

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

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

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

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

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

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

a mistake. Id. at *8-9.

D. Analysis

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

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

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

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

3 This Court stated: “Appellant also filed an amended motion to suppress evidence, challenging the warrantless blood draw on Fourth Amendment grounds. A hearing was held on the motion to suppress complaining of an illegal stop, and the trial court denied the motion. That hearing did not pertain to appellant’s amended motion to suppress.”

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

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

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

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

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

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

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

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

a non-consensual blood draw violates the Fourth Amendment.

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

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

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

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

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

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

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

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

4 This Court recognized that the statute implicitly dispenses with the warrant requirement. See State v. Johnston, 336 S.W.3d 649, 660 (Tex. Crim. App. 2011) (“Chapter 724 of the Texas Transportation Code, which contains Texas’ implied consent statutes, governs the State’s ability to obtain a breath or blood sample from a DWI suspect when there is no warrant.”) (citing Beeman v. State, 86 S.W.3d 613, 616 (Tex. Crim. App. 2002)).

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

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

be regarded as preserving the claim raised on appeal.6

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

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

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

5 See Lovill v. State, 319 S.W.3d 687, 692 (Tex. Crim. App. 2009) (when a legal claim is rarely urged, like a selective prosecution claim, the objecting party should invoke the proper federal and state constitutional provisions or use key legal phrases); Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009) (novel argument of greater rights under Texas’ due course of law provision was not sufficiently distinguished from the federal Due Process Clause in the trial court). 6 Even if Appellant’s amended motion had been sufficiently specific, contrary to Justice Frost’s opinion, the record could be construed as Appellant having abandoned or waived the issue. Because he never argued the issue at the suppression hearing, the judge never explicitly ruled on it. Therefore, the trial judge’s statements that he overruled Appellant’s motions to suppress could be limited to the validity of the stop issue the trial judge did explicitly resolve. 3 RR 119; 4 RR 161. Depending on how the trial court’s statements are construed, there is authority from this Court that may support a contrary determination, however. In Bishop v. State, 85 S.W.3d 819, 821-22 (Tex. Crim. App. 2002), this Court stated the trial courts have the authority to dispose of a motion based on the motion alone. See also Eisenhauer v. State, 754 S.W.2d 159, 161 (Tex. Crim. App. 1988) (stating that a motion to suppress that raised both federal and state search and seizure provisions was sufficient to preserve state constitutional claim when oral argument covered only the federal constitutional claim).

There is also a question as to whether Appellant’s objection to the admission to the blood test results during trial even included his non-specific amended motion to suppress ground. As the State noted in its brief below, State’s Brief on Remand at 7- 8, his objections immediately preceding the final “all prior objections” statement did not pertain to the validity of the statutory draw itself. 4 RR 73-92.

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

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

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

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

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

of which Appellant was aware before trial.

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

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

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

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

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

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

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

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

7 Aliff v. State, 627 S.W.2d 166, 169-70 (Tex, Crim. App. 1982); see also Pesina v. State, 676 S.W.2d 122, 123-27 (Tex. Crim. App. 1984) (same). 8 See Williams v. State, 773 S.W.2d 525, 534-35 (Tex. Crim. App. 1988), aff’d on reh’g (Batson claim could not be raised for the first time on appeal even though Batson was decided after Appellant’s trial; the legal basis was not so novel that it could not have been reasonably anticipated); see also Karenev v. State, 281 S.W.3d 428, 434 (Tex. Crim. App. 2009) (facial challenge to a presumptively constitutional statute cannot be raised for the first time on appeal).

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

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

preserved.

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

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

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

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

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

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

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

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

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

The warrantless blood draw, conducted under Texas Transportation Code

9 See, e.g., Buchanan v. State, 207 S.W.3d 772, 776-79 (Tex. Crim. App. 2006) (an objection under the Fourth Amendment does not preserve a challenge to an arrest under Chapter 14 of the Code of Criminal Procedure); Heidelberg v. State, 144 S.W.3d 535, 539-43 (Tex. Crim. App. 2004) (an objection under the Fifth Amendment does not preserve a Texas constitutional challenge). 10 The court of appeals incorporated its first opinion by reference on remand. Leal, 2015 Tex. App. LEXIS 6460, at *1. 11 No. PD-0306-14, 2014 Tex. Crim. App. LEXIS 1898 (Tex. Crim. App. Nov. 26, 2014, reh’g granted).

10 Section 724.012(b)(3)(B), was reasonable under Fourth Amendment jurisprudence.

Review should be granted because the same issue is pending on rehearing in

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

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

2014; argued and submitted Jan. 15, 2015), and Douds v. State, PD-0857-14 (granted

Sept. 17, 2014; argued and submitted Mar. 18, 2015).12

3. Even if foregoing issues are resolved in Appellant’s favor, the federal and state exclusionary rules do not require suppression because police relied on binding law authorizing the search at the time it was conducted.

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

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

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

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

presumptively valid statute and case law interpreting it. Therefore, if the other issues

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

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

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

warranted.

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

11 PRAYER FOR RELIEF

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

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

Respectfully submitted,

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

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

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

12 CERTIFICATE OF COMPLIANCE

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

document contains 2,372 words, exclusive of the items excepted by T EX. R. A PP. P.

9.4(i)(1).

/s/ STACEY M. GOLDSTEIN Assistant State Prosecuting Attorney

13 CERTIFICATE OF SERVICE

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

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

Hon. Allison Lindblade 600 59th Street, Suite 1001 P.O. Box 17254 Galveston, Texas 77551 allison.lindblade@co.galveston.tx.us

Hon. Mark W. Stevens P.O. Box 8118 Galveston, Texas 77553 markwandstec@sbcglobal.net

14 APPENDIX A 6 of 100 DOCUMENTS

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

NO. 14-13-00208-CR

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

2014 Tex. App. LEXIS 12286

November 13, 2014, Dissenting Opinion Filed

NOTICE: PUBLISH -- TEX. R. APP. P. 47.2(b). the officer in this case had sufficient evidence to justify the warrantless temporary detention of appellant. W ith PRIO R HISTORY: [*1] On Appeal from the 122nd regard to appellant's second issue, we hold that the District Court, Galveston County, Texas. Trial Court intrusion [*2] into appellant's veins was an unreasonable Cause No. 12CR0947. warrantless search in violation of the Fourth Amendment. W e therefore reverse the trial court's judgment and remand to the trial court for a new trial consistent with CO UNSEL: For Appellant: M ark W. Stevens, this opinion. GALVESTON, TX. I. F A C TS A ND P RO CED U R A L B A CKGROUN D For Appellee: Allison Lindblade, GALVESTON, TX. Early in the morning of April 2, 2012, Jacob Hodges 1 was on patrol driving east in the right lane of W est M ain JUDGES: Panel consists of Chief Justice Frost and Street in League City, Galveston County, Texas. Hodges Justices Donovan and Brown. (Frost, C.J., dissenting). observed appellant approaching W est Main Street from an apartment complex parking lot. Appellant was driving OPINION BY: Marc W . Brown a white sport utility vehicle (SUV) approaching from the south at a high rate of speed. Immediately prior to turning OPINION onto W est Main Street, appellant applied his brakes. This caused the SUV to visibly rock forward, compressing the M AJORITY OPINION front suspension. The front end of appellant's SUV Appellant Jonathan Albert Leal was stopped for entered W est Main Street. Hodges had to slam on his failing to yield the right of way. Appellant was arrested brakes in order to avoid a collision. on suspicion of driving while intoxicated (DW I) and, over his explicit refusal, compelled by the arresting 1 At the time of the events at issue, Hodges was officer to submit to a warrantless intrusion into his veins. a police officer with the League City Police Appellant was convicted of felony DW I. See Tex. Penal Department. At the time of trial, Hodges was a Code Ann. §§ 49.04, 49.09(b) (W est 2011 & Supp. special agent with the Drug Enforcement 2014). Administration. Appellant presents this court with two issues for As a result of this near collision, Hodges initiated a review. The first issue is whether the traffic stop was traffic stop. During the course of the traffic stop, Hodges supported by reasonable suspicion. The second issue is saw a [*3] bottle of rum behind the passenger's seat of whether, under Missouri v. McNeely, U.S. , 133 S. appellant's SUV. Hodges noticed that appellant's eyes Ct. 1552, 185 L. Ed. 2d 696 (2013), and based solely on were red and watery. He also noticed the faint odor of the arresting officer's application of the repeat-offender alcohol on appellant's breath. In response to Hodges's provision of the implied-consent statute, see Tex. Transp. questioning, appellant admitted to drinking three mixed Code Ann. § 724.012(b)(3)(B) (W est 2011), the State was drinks. Hodges administered a battery of standardized justified in obtaining a blood sample from appellant's field sobriety tests. Based on appellant's performance on veins without a warrant. the sobriety tests and Hodges's personal observations, Hodges concluded that appellant was under the influence W ith regard to appellant's first issue, we hold that of alcohol. Hodges arrested appellant and transported him to the League City jail. II. S TA N DA R D OF R EVIEW At the jail, Hodges gave appellant the requisite A trial court's denial of a motion to suppress and a statutory warning regarding the implied-consent statute trial court's denial of a motion for new trial are both and the consequences of refusing to submit to the taking reviewed under the abuse of discretion standard. of a blood or breath specimen. See Tex. Transp. Code Okonkwo v. State, 398 S.W.3d 689, 694 (Tex. Crim. App. Ann. § 724.015 (W est Supp. 2014). The warning was 2013); Ex parte Moore, 395 S.W.3d 152, 158 (Tex. Crim. given orally and in writing. After receiving the statutory App. 2013). A trial court abuses its discretion if no warning, appellant refused to submit to the taking of both reasonable view of the record could support its ruling. a blood and a breath specimen.2 Hodges then reviewed Okonkwo, 398 S.W.3d at 694. W e view the evidence in appellant's criminal history and discovered that appellant the light most favorable to the trial court's ruling. Id.; had two prior DW I convictions. Per the implied-consent Moore, 395 S.W.3d at 158. At a hearing on the motion, statute, Hodges was required to obtain a specimen of the trial court is the sole judge of witness credibility and appellant's blood. See Tex. Transp. Code Ann. § the weight given to witness testimony. Okonkwo, 398 724.012(b)(3)(B). Hodges transported appellant to Clear S.W.3d at 694; Moore, 395 S.W.3d at 158. W e must [*4] Lake Regional Hospital where a nurse drew afford [*6] almost total deference to the trial court's appellant's blood. According to Hodges's offense report, findings of historical facts as well as mixed questions of appellant was "very uncooperative" at the hospital; three law and fact that turn on an evaluation of credibility and people had to hold appellant down while the nurse took demeanor. Okonkwo, 398 S.W.3d at 694; Abney v. State, his blood. Hodges did not obtain a search warrant to 394 S.W.3d 542, 547 (Tex. Crim. App. 2013). W hen the draw appellant's blood. trial court does not make explicit findings of fact, we assume the trial court made implicit findings of fact 2 W hile the written refusal in the record denotes supported by the record. Okonkwo, 398 S.W.3d at 694; only a refusal to submit a breath specimen, the Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App. testimony at trial in response to the State's 2005). questioning clearly demonstrates that appellant W e review de novo (1) questions of law based on refused to submit samples of both breath and undisputed facts and (2) mixed questions of law and fact blood. that do not turn on an evaluation of credibility and Appellant was indicted for operating a motor vehicle demeanor. Jones v. State, 437 S.W.3d 536, 538 (Tex. in a public place while intoxicated. See Tex. Penal Code App.--Texarkana 2014, pet. filed); see Oles v. State, 993 Ann. § 49.04(a). The indictment alleged two prior DW I S.W.2d 103, 106 (Tex. Crim. App. 1999); Guzman v. convictions. Appellant stipulated to the validity of the State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). two prior convictions. Appellant filed a motion to Additionally, we review de novo the trial court's suppress challenging the legality of the traffic stop. After application of the law of search and seizure to the trial conducting a hearing, the trial court denied the motion to court's express or implied determination of historical suppress. facts. Shepherd v. State, 273 S.W.3d 681, 684 (Tex. Crim. App. 2008). Finally, we review de novo indisputable The case was tried before a jury. Appellant's blood evidence contained in a video recording. State v. Duran, alcohol content, which was nearly three times the legal 396 S.W.3d 563, 570-71 (Tex. Crim. App. 2013); see limit, was admitted into evidence. The jury found Carmouche v. State, 10 S.W.3d 323, 332 (Tex. Crim. App. appellant guilty of the charged offense, and the trial court 2000). assessed punishment at eight years' confinement. The sentence was suspended and appellant [*5] was placed III. D ISC U SSIO N on community supervision. W e begin our discussion with a general overview of The trial court's judgment was signed on February the Fourth Amendment. W e then analyze whether Hodges 15, 2013. Appellant filed his notice of appeal on the had reasonable suspicion that appellant committed the same day. On March 8, 2013, appellant filed a motion for traffic violation of failing to yield the right of way. new trial, asserting various grounds not pertinent to this Finally, we analyze whether the warrantless intrusion into appeal. On April 22, 2013, five days after the Supreme appellant's veins was justified under an exception to the Court decided McNeely, appellant filed a supplemental Fourth Amendment's warrant requirement. motion for new trial in which he challenged the validity of the warrantless blood draw under McNeely. The trial A. The Fourth Amendment court held a hearing on appellant's motion for new trial and ultimately denied the motion. On appeal, appellant The Fourth Amendment provides: "The right of the challenges (1) the legality of the traffic stop and (2) the people to be secure in their persons, houses, papers, [*7] legality of the warrantless blood draw. and effects, against unreasonable searches and seizures, shall not be violated, and no W arrants shall issue, but upon probable cause, supported by Oath or affirmation, private road or driveway shall yield the right-of-way to a and particularly describing the place to be searched, and vehicle approaching on the highway to be entered." Tex. the persons or things to be seized." U.S. Const. amend. Transp. Code Ann. § 545.155 (W est 2011). The IV. The ultimate touchstone of the Fourth Amendment is undisputed evidence showed the following: o Hodges was reasonableness. Riley v. California, U.S. , , 134 S. driving eastbound in the right lane of W est Main Street. Ct. 2473, 2482, 189 L. Ed. 2d 430 (2014). Reasonableness generally requires the obtaining of a o Appellant was driving through a judicial warrant. Id. A warrantless search is reasonable parking lot at a high rate of speed. only if it falls within a specific exception to the Fourth o A p p e l l a n t 's t r a j e c t o r y was Amendment's warrant requirement. Id. perpendicular to that of Hodges. A defendant who alleges a search or seizure in o Appellant was approaching W est violation of the Fourth Amendment must produce some Main Street from the south. evidence that rebuts the presumption of proper police conduct. Amador v. State, 275 S.W.3d 872, 878 (Tex. o Appellant's SUV stopped suddenly, Crim. App. 2009). To satisfy this burden, the defendant causing its weight to visibly shift forward must establish that the search or seizure occurred without and its front suspension to compress. a warrant. Id. Once the defendant makes this showing, o The front end of appellant's SUV the State must prove that the search or seizure was entered Hodges's lane. conducted pursuant to a warrant or was reasonable. Id. Here, the State seized and searched appellant without a o Hodges had to slam on his brakes in warrant. Therefore, we must determine whether the order to avoid colliding with the SUV. warrantless temporary detention of appellant was reasonable and, if so, whether the warrantless intrusion into appellant's veins was reasonable. Based on the totality of these circumstances, we B. The traffic stop was reasonable. conclude that Hodges had reasonable suspicion that appellant committed the traffic violation of failing to The [*8] warrantless temporary detention of yield the right of way. The record indicates that appellant appellant was reasonable. A warrantless temporary did not yield the right of way to Hodges. Specifically, detention, such as the traffic stop in this case, is lawful appellant allowed the front end of his SUV to enter the when the officer has reasonable suspicion to believe that highway from the apartment complex's driveway when an individual is violating the law. Ford, 158 S.W.3d at Hodges was approaching on the highway to be entered, 492. Reasonable suspicion exists if the officer has namely W est Main Street. See id.; see, e.g., Thomas v. specific articulable facts that, when combined with State, 336 S.W.3d 703, 708-09 (Tex. App.--Houston [1st rational inferences from those facts, would lead him to Dist.] 2010, pet. ref'd) (traffic stop for failing to yield reasonably suspect that a person has engaged, is right [*10] of way was justified when defendant's abrupt engaging, or soon will be engaging in criminal activity. turn forced officer to apply brakes in order to avoid a Abney, 394 S.W.3d at 548. This objective standard collision). disregards the officer's subjective intent and looks solely at whether an objective basis for the detention exists. The trial court did not err in denying appellant's Ford, 158 S.W.3d at 492. A reasonable-suspicion motion to suppress. Appellant's first issue is overruled. determination is made by considering the totality of the circumstances at the time of the detention and must be C. The State's drawing of appellant's blood without a based on commonsense judgments and inferences about warrant was not reasonable because the State failed to human behavior. Illinois v. Wardlow, 528 U.S. 119, 125, establish a recognized exception to the Fourth 120 S. Ct. 673, 145 L. Ed. 2d 570 (2000); State v. Amendment's warrant requirement. Woodard, 341 S.W.3d 404, 412 (Tex. Crim. App. 2011). The State's drawing of appellant's blood without a In this case, Hodges testified that he stopped warrant was not reasonable. The State failed to establish a appellant for failing to yield the right of way. In order to recognized exception to the Fourth Amendment's warrant satisfy its burden, the State was required to show that requirement.3 A blood draw conducted at the direction of Hodges had a reasonable suspicion that appellant the police is a search subject to the reasonableness violated section 545.155 of the Texas Transportation requirement of the Fourth Amendment. Schmerber v. Code by failing to yield the right of way. See Abney, 394 California, 384 U.S. 757, 767, 86 S. Ct. 1826, 16 L. Ed. S.W.3d at 548. 2d 908 (1966). A warrantless search of the person is unreasonable unless it falls within a recognized exception Section 545.155 provides that "[a]n operator about to to the warrant requirement. McNeely, 133 S. Ct. at 1558. enter or cross a highway from an alley, building, [*9] or Voluntary consent to search and exigent circumstances new trial, the State acknowledged that, under McNeely, are among the recognized exceptions. McGee v. State, "it is not a per se exception to the general warrant 105 S.W.3d 609, 615 (Tex. Crim. App. 2003). W e are requirement . . . that alcohol naturally dissipates in the persuaded by the reasoning of our sister courts of appeal blood stream." The State argues, however, that exigent and join them in concluding that the repeat-offender circumstances did justify the warrantless blood draw in provision of the implied-consent statute, see Tex. Transp. this case. The State avers that two hours elapsed from the Code Ann. § 724.012(b)(3)(B), is not one of the time of the traffic stop to the time that appellant's blood recognized exceptions to the warrant requirement. State was drawn. The State contends that the additional time v. Anderson, S.W.3d , , No. 09-13-00400-CR, 2014 needed to acquire a warrant threatened the destruction of Tex. App. LEXIS 11151, 2014 WL 5033262, at *15 (Tex. the evidence of appellant's blood alcohol content. The App.--Beaumont Oct. 8, 2014, no pet. h.); Aviles v. State, State's position is untenable because it is not supported by S.W.3d , , No. 04-11-00877-CR, 2014 Tex. App. evidence in the record. LEXIS 8508, 2014 WL 3843756, at *3 (Tex. App.--San The exigent circumstances exception applies "when Antonio Aug. 6, 2014, pet. filed) [*11] ; Forsyth v. State, the exigencies of the situation make the needs of law 438 S.W.3d 216, 223 (Tex. App.--Eastland 2014, pet. enforcement so compelling that a warrantless search is filed); Sutherland v. State, 436 S.W.3d 28, 41 (Tex. App.- objectively reasonable under the Fourth Amendment." -Amarillo 2014, pet. filed); Weems v. State, 434 S.W.3d McNeely, 133 S. Ct. at 1558 (quoting Kentucky v. King, 655, 665 (Tex. App.--San Antonio 2014, pet. granted); U.S. , , 131 S. Ct. 1849, 1856, 179 L. Ed. 2d 865 Reeder v. State, 428 S.W.3d 924, 930 (Tex. App.-- (2011)). The State has a compelling need to prevent the Texarkana 2014, pet. granted); State v. Villarreal, imminent destruction of evidence. Id. A law enforcement S.W.3d , , No. 13-13-00253-CR, 2014 Tex. App. officer may conduct a search without a warrant if, under LEXIS 645, 2014 WL 1257150, at *11 (Tex. App.-- the circumstances, the delay necessary to obtain a warrant Corpus Christi Jan. 23, 2014, pet. granted). threatens the destruction of evidence. Schmerber, 384 U.S. at 770. 3 To the extent appellant asks us to decide the constitutionality of the implied-consent statute, W e must look to [*13] the totality of the we decline his invitation. "The constitutionality circumstances as set forth in the record to determine of a statute is not to be determined in any case whether the officer faced an exigency that justified acting unless such a determination is absolutely without a warrant. McNeely, 133 S. Ct. at 1559. However, necessary to decide the case in which the issue is "in order to establish a plausible justification for an raised." State ex rel. Lykos v. Fine, 330 S.W.3d exigent circumstances exception to the warrant 904, 909 (Tex. Crim. App. 2011) (quoting Briggs requirement, the State ha[s] the burden to show facts and v. State, 740 S.W.2d 803, 806-07 (Tex. Crim. App. circumstances beyond the passage of time and the 1987)). Because section 724.012(b)(3)(B) is not a resulting dissipation of alcohol in the bloodstream." recognized exception to the Fourth Amendment's Douds v. State, 434 S.W.3d 842, 851 (Tex. App.--Houston warrant requirement and because the State did not [14th Dist.] 2014, pet. granted) (en banc, op. on reh'g). satisfy its burden to establish a recognized Here, the State has not shown or articulated any facts exception to the warrant requirement, we supporting the existence of an exigency beyond the conclude that appellant's Fourth Amendment passage of time and the resulting dissipation of alcohol in rights were violated. Therefore, it is not the bloodstream. The record shows that Hodges initiated "absolutely necessary" for us to decide whether the traffic stop just after 2:00 a.m. on April 2, 2012. section 724.012(b)(3)(B) is unconstitutional, Hodges arrested appellant at 2:46 a.m. The nurse drew either facially or as applied to appellant. appellant's blood at 4:20 a.m. Although Hodges testified Therefore, the State was required to prove that the that he was aware that he could obtain a blood-draw warrantless intrusion into appellant's veins was justified warrant, the record contains no evidence that he by exigent circumstances or valid consent.4 attempted to acquire such a warrant. Additionally, the record contains no evidence regarding what Hodges knew 4 The State has not argued that any other about the time needed to obtain a warrant. The State recognized exception to the warrant requirement presented no evidence that further delay to obtain a applies to this case. warrant threatened the destruction of evidence. [*14] The only evidence of an exigency in this case is the two hours 1. The drawing of appellant's blood without a warrant that elapsed from the time of the traffic stop to the time of was not justified by exigent circum stances. the warrantless blood draw and the resulting dissipation of alcohol in appellant's blood stream. The State has not met its burden to establish the exigent circumstances exception [*12] to the warrant Even though findings of historical fact supported by requirement. At the hearing on appellant's motion for the record must be implied in favor of the trial court's ruling, whether those facts meet the legal standard of se rule of irrevocable consent by comparing a exigent circumstances is a legal question we review de warrantless blood draw to an administrative novo. Douds, 434 S.W.3d at 855. The findings that can search at an airport is unconvincing. be implied on this record do not support the conclusion The State has not met its burden to establish that that the delay necessary to obtain a warrant threatened exigent circumstances justified the warrantless search into the imminent destruction of the evidence of appellant's appellant's veins. blood alcohol content. Nor does the record support the dissent's position 2. The drawing of appellant's blood without a warrant that appellant posed a risk similar to that of a suspected was not justified by valid consent. terrorist in a highly crowded airport. Here, appellant was The State next contends, "It is well settled that one of in police custody and no longer a threat to anyone on the the established exceptions to a warrant requirement is a public roadways. This is in marked contrast to the would- search pursuant to consent." The State equates statutory be "air pirate" in the "zone of danger." The warrantless implied consent with the recognized consent exception to search in this case was for evidence of intoxication, not the Fourth Amendment's warrant requirement. The State's for weapons or implements of mass destruction that position is that a suspect with two prior DW I convictions could still be used. Further, the dissent advances an has irrevocably consented to a mandatory warrantless argument that was not advanced by the [*15] State at blood draw. W e disagree and conclude that, under the trial or on appeal. 5 totality of the circumstances in the record, the State has not met its burden to establish that the warrantless search 5 W e also note that courts deciding the validity into appellant's veins was justified by valid consent.6 of searches at airports after the 9/11 terrorist attacks have eschewed the notion that searches at 6 Like the First Court of Appeals in Perez v. airports are justified by consent. See United State, we do not consider the constitutionality of States v. Aukai, 497 F.3d 955, 960-61 (9th Cir. the implied-consent statute. See S.W.3d , , 2007) (en banc) (overruling prior cases that No. 01-12-01001-CR, 2014 Tex. App. LEXIS predicated the reasonableness of airport screening 2681, *16, 2014 WL 943126, at *7 (Tex. App.-- on ongoing consent or irrevocable implied Houston [1st Dist.] Mar. 11, 2014, no pet.); supra consent; "[G]iven that consent is not required, it note 3. Rather, we must decide an issue not makes little sense to predicate the reasonableness addressed in Perez--whether [*17] such implied of an administrative airport screening search on consent can be revoked. an irrevocable implied consent theory."); see also Corbett v. Transp. Sec. Admin., 767 F.3d 1171, a. Consent under the Fourth Am endm ent 1180 (11th Cir. 2014) (describing airport search as administrative search rather than consent Under the Fourth Amendment, a warrantless search search); George v. Rehiel, 738 F.3d 562, 575 (3d authorized by consent is wholly valid. Schneckloth v. Cir. 2013) (noting that airport screening was Bustamonte, 412 U.S. 218, 222, 93 S. Ct. 2041, 36 L. Ed. permissible under administrative search doctrine); 2d 854 (1973). Like searches justified by consent in other Elec. Privacy Info. Ctr. v. Dep't of Homeland contexts, "consent to a blood test must be free and Sec., 653 F.3d 1, 10, 397 U.S. App. D.C. 313 voluntary, and it must not be the result of physical or (D.C. Cir. 2011) (screening passengers at an psychological pressures brought to bear by law airport is an administrative search). In fact, Texas enforcement." Fienen v. State, 390 S.W.3d 328, 333 (Tex. courts have held that travelers who attempt to Crim. App. 2012). A person's consent is not voluntary if board a commercial aircraft or check their his will was overborne and his capacity for self- baggage lack standing to challenge the search determination was critically impaired. See Schneckloth, because they do not have a reasonable 412 U.S. at 225-26; Fienen, 390 S.W.3d at 333. expectation of privacy. E.g., Kjolhede v. State, Moreover, a person is free to limit the scope of or 333 S.W.3d 631, 633-34 (Tex. App.--Dallas 2009, even revoke the consent that was given. Florida v. pet. ref'd); Turner v. State, 132 S.W.3d 504, 507- Jimeno, 500 U.S. 248, 252, 111 S. Ct. 1801, 114 L. Ed. 2d 08 (Tex. App.--Houston [1st Dist.] 2004, pet. 297 (1991); Valtierra v. State, 310 S.W.3d 442, 450 (Tex. ref'd); see also Florida v. J.L., 529 U.S. 266, 274, Crim. App. 2010). If a person withdraws his or her 120 S. Ct. 1375, 146 L. Ed. 2d 254 (2000) consent before the search is completed, the police cannot (reasonable expectation of privacy is diminished continue searching based on the prior consent. See, e.g., at airports). In a post-9/11 world, a person's Mason v. Pulliam, 557 F.2d 426, 429 (5th Cir. 1977) submission to administrative airport screening has (citizen's withdrawal of consent and reinvocation of little to do with his or her consent, implied [*16] Fourth Amendment rights did not affect validity of IRS or otherwise. The dissent's effort to justify a per agent's actions prior to receiving notice of citizen's withdrawal of consent). A suspect's ability to withdraw within the state, to consent to blood alcohol content his or her consent is particularly important in cases like testing if they are arrested or detained on suspicion of this one that involve a compelled intrusion into the drunk driving. McNeely, 133 S. Ct. at 1566. Implied- human body. See McNeely, 133 S. Ct. at 1565 ("W e have consent statutes do not generally authorize searches; never retreated . . . from our recognition that any instead, they authorize [*20] the police to require compelled intrusion into the human body implicates motorists to choose between giving actual consent or significant, constitutionally [*18] protected privacy withdrawing their "implied consent" and suffering the interests."). consequences. State v. Padley, 2014 WI App 65, 354 Wis. 2d 545, 849 N.W.2d 867, 880 (Wis. Ct. App. 2014); see It is the State's burden to show valid consent by clear McNeely, 133 S. Ct. at 1566. A suspect who consents and convincing evidence. Fienen, 390 S.W.3d at 333. when presented with the choice has given actual consent, The question of whether a person's consent was valid is but a suspect who refuses to consent withdraws the one of fact to be determined from the totality of the statutorily "im plied consent" and accep ts the circumstances and from the point of view of the consequences of that choice. Padley, 849 N.W.2d at 879. objectively reasonable person. Id. "The standard for In this respect, choosing to submit a breath or blood measuring the scope of a suspect's consent under the specimen rather than accepting the consequences of Fourth Amendment is that of 'objective' reasonableness-- refusal is valid consent under the Fourth Amendment. See what would the typical reasonable person have McGautha v. California, 402 U.S. 183, 213, 91 S. Ct. understood by the exchange between the officer and the 1454, 28 L. Ed. 2d 711 (1971) ("The criminal process . . . suspect?" Jimeno, 500 U.S. at 251. One of the factors in is replete with situations requiring 'the making of difficult determining the validity of a search based on consent is judgments' as to which course to follow. Although a whether the suspect had the option to withdraw his or her defendant may have a right . . . to follow whichever consent. Flores v. State, 172 S.W.3d 742, 749 (Tex. App.- course he chooses, the Constitution does not . . . always -Houston [14th Dist.] 2005, no pet.). forbid him to choose." (citations omitted)), vacated on An officer's invocation of section 724.012(b)(3)(B) other grounds sub nom, Crampton v. Ohio, 408 U.S. 941, is not alone sufficient to establish the existence of valid 92 S. Ct. 2873, 33 L. Ed. 2d 765 (1972); Cantu v. State, consent justifying a warrantless blood draw. In McNeely, 738 S.W.2d 249, 256 (Tex. Crim. App. 1987) ("No the Supreme Court rejected the state's argument that constitutional violation is presented by the fact of a "whenever an officer has probable cause to believe an difficult decision for a defendant."). individual has been driving under the influence of The Texas implied-consent statutory scheme is alcohol, exigent circumstances will necessarily exist similar to the general model. In Texas, "implied consent" because [blood alcohol content] evidence is inherently means that a person arrested for DW I is deemed to have evanescent." McNeely, 133 S. Ct. at 1560. The Court consented to the taking of one or more specimens of the held that the dissipation of alcohol in the blood does not person's breath or blood for analysis to determine [*21] categorically support a finding [*19] of exigency and alcohol concentration. Tex. Transp. Code Ann. § 724.011 reiterated that "[w]hether a warrantless blood test of a (W est 2011). A specimen can only be taken if the person drunk-driving suspect is reasonable must be determined agrees to an officer's request for one, unless the case by case based on the totality of the circumstances." provisions of 724.012(b) apply. Id. § 724.013 (W est Id. at 1563. Here, the State's position is similar to that of 2011). If a person refuses an officer's request to submit a the state in McNeely: whenever a person has been specimen, the Department of Public Safety must arrested for DW I and is a repeat offender, consent will immediately suspend the person's driver's license. Id. § necessarily exist because section 724.012(b)(3)(B) says it 724.035 (W est 2011). At issue in this case is section does. Like the McNeely Court, we reject the State's 724.012(b)(3)(B) of the Transportation Code, the repeat- argument in favor of a categorical rule supporting a offender provision of the implied-consent statute. This finding of irrevocable consent and instead reiterate that provision requires an officer to take a specimen of a whether a warrantless blood test of a drunk-driving person's breath or blood if (1) the officer arrests the suspect is reasonable under the Fourth Amendment must person for DW I, (2) the person refuses the officer's be determined case by case based on the totality of the request to submit a specimen voluntarily, and (3) at the circumstances. Therefore, in this case, we must look at time of arrest, the officer possesses or receives reliable the facts and circumstances beyond application of section information from a credible source that the person has 724.012(b)(3)(B) to determine whether the search into been previously convicted of DW I on two or more prior appellant's veins was justified by valid consent. occasions. Id. § 724.012(b)(3)(B). b. Im plied Consent c. Analysis G enerally, im p lied -c o n se n t sta tu te s re q uire Applying the Fourth Amendment standards, the motorists, as a condition of operating a motor vehicle applicable provisions of Texas's implied-consent statute, and the appropriate standard of review, we conclude the physical force to compel submission." Id. at 333 (quoting State has not carried its burden to prove the existence of Forte v. State, 759 S.W.2d 128, 138 (Tex. Crim. App. valid consent in this case. W e acknowledge that the 1988), overruled on other grounds, McCambridge v. record supports a finding that the statutory requirements State, 778 S.W.2d 70 (Tex. Crim. App. 1989) (internal for a mandatory blood draw were [*22] met. Appellant quotations omitted)). Although the repeat-offender was arrested for DW I and was deemed by the implied- provision of the implied-consent statute was not at issue consent statute to have consented to submitting a in the Fienen court's analysis, see 390 S.W.3d at 333, the specimen of his breath or blood. Because appellant had Supreme Court's recent abolition of categorical rules been convicted of DW I on two prior occasions and justifying exceptions to the warrant requirement refused to submit a blood specimen voluntarily, Hodges persuades us that the use of physical force to compel was required by the mandatory blood draw provision of submission, particularly in the face of physical resistance, the implied-consent statute to obtain a specimen of is equally forbidden when the repeat-offender provision is appellant's breath or blood. Furthermore, appellant at issue in the court's analysis, as it is in this case. See stipulated to the prior convictions at trial and does not McNeely, 133 S. Ct. at 1563; see also Aviles v. Texas, contest that Hodges complied with the statute by U.S. , , 134 S. Ct. 902, 902, 187 L. Ed. 2d 767 (2014) requiring him to submit to the taking of a blood (remanding, for consideration in light of McNeely, specimen. factually similar case involving repeat-offender provision of implied-consent law); Tex. Dept. of Pub. Safety v. The record supports a finding that appellant Watson, 945 S.W.2d 262, 266 (Tex. App.--Houston [1st effectively withdrew his implied consent. Hodges Dist.] 1997, no pet.) ("[A] person cannot be forced to testified that appellant refused consent to the blood draw. breathe into a breathalyzer or have a needle with syringe After discovering appellant's two prior DW I convictions, forcibly poked into his arm."). W ere it otherwise, we Hodges took appellant to the hospital for the mandatory would be creating a per se exception to the warrant blood draw. At this point, the record indicates that requirement for DW I repeat offenders. As the United appellant physically resisted to the taking of his blood. States Supreme Court made clear in M cNeely, this we Specifically, three people had to hold appellant down so cannot do.7 the nurse could complete the blood-draw procedure. The explicit refusal coupled with the physical refusal to 7 W e acknowledge, as does the dissent, that "the submit to the taking of a blood specimen effectively permissibility of a [*25] particular practice 'is withdrew [*23] appellant's prior implied consent. See judged by balancing its intrusion on the Jimeno, 500 U.S. at 251 (scope of consent is determined individual's Fourth Amendment interests against by what a reasonable person would have understood by its promotion of legitimate governmental the exchange between the officer and the suspect). interests.'" Skinner v. Ry. Labor Execs. Ass'n, 489 Despite this withdrawal of consent and without obtaining U.S. 602, 619, 109 S. Ct. 1402, 103 L. Ed. 2d 639 a warrant, Hodges forced appellant to submit a blood (1989) (quoting Delaware v. Prouse, 440 U.S. specimen. Hodges's only justification for mandating the 648, 654, 99 S. Ct. 1391, 59 L. Ed. 2d 660 warrantless blood draw was his application of section (1979)). However, in this case, the balance of the 724.012(b)(3)(B). State's interests in eradicating the drunken driving The totality of the circumstances in this case problem against the individual's constitutionally- demonstrates that appellant withdrew his consent prior to protected interest in his or her bodily integrity the warrantless blood draw. In light of appellant's undermines the dissent's position in favor of withdrawal of consent and because the State's only irrevocable consent based solely on the j u s t i f i c a t i o n f o r c o n d u c t i n g th e w a r r a n tle s s individual's status as a repeat offender. nonconsensual blood draw was the repeat-offender The drunken driving problem is a national provision of the implied-consent statute, we conclude the epidemic, and the State has an important interest State has not met its burden to establish the existence of in eradicating it. See McNeely, 133 S. Ct. at 1565. valid consent justifying the warrantless blood draw. The State also has an interest in protecting law- In reaching this conclusion, we recognize the abiding drivers from drunk drivers. But when apparent inconsistency between deemed consent under balanced against the serious bodily intrusion the implied-consent statute and a person's absolute right necessitated by a warrantless mandatory blood to refuse a test. See Fienen, 390 S.W.3d at 332-33. The draw, we conclude that the State's interests are Court of Criminal Appeals has explained this sufficiently served by the provision in the inconsistency: "[C]onsent being implied by law, a driver T ransportation Code mandating immediate may not legally refuse. A driver, however, can physically suspension of a person's driver's license when the refuse [*24] to submit, and the implied-consent law, person refuses to submit to a blood draw, or, in recognizing that practical reality, forbids the use of the case of a person without a license, issuance of an order denying the issuance of a license to that precludes an officer from first obtaining a warrant. person. See Tex. Transp. Code Ann. § 724.035(a) See, e.g., Ala. Code §§ 32-5-192, 32-5-200 (W est 2011). Furthermore, in this case, appellant (W estlaw); Alaska Stat. Ann. § 28.35.032 was in custody. [*26] He no longer posed a (W estlaw); Ariz. Rev. Stat. Ann. §§ 28-1321, 28- threat to public safety. And nothing in the record 1388 (W estlaw); Ark. Code Ann. §§ 5-65-202, 5- suggests that Hodges was prevented from 65-205 (W estlaw); [*28] Cal. Veh. Code §§ obtaining a warrant. 13353, 23612 (W estlaw); Colo. Rev. Stat. Ann. §§ 42-4-1301, 42-4-1301.1 (W estlaw); Conn. Gen. W e are not persuaded by the State's argument that, Stat. Ann. §§ 14-227b, 14-227c (W estlaw) by citing favorably to implied-consent statutes (amended 2014); Del. Code Ann. tit. 21, §§ 2740, throughout the country, the McNeely Court endorsed the 2741 (W estlaw); Fla. Stat. Ann. § 316.1932 use of implied-consent statutes as a means to justify the (W estlaw); Ga. Code Ann. § 40-5-67.1 (W estlaw); warrantless intrusion into a nonconsenting suspect's Haw. Rev. Stat. §§ 291E-15, 291E-21 (W estlaw); veins. The Court's statement that implied-consent laws Idaho Code Ann. § 18-8002 (W estlaw); 625 Ill. "impose significant consequences when a motorist Com p. Stat. Ann. 5/11-501.1, 5/11-501.6 withdraws consent" presupposes that a motorist has the (W estlaw); Ind. Code Ann. §§ 9-30-6-1, 9-30-6-3, right to withdraw his or her consent. McNeely, 133 S. Ct. 9-30-6-7 (W estlaw); Iowa Code Ann. §§ 321J.6, at 1566; see Forsyth, 438 S.W.3d at 222 ("The Court's 321J.9, 321J.10A (W estlaw); Kan. Stat. Ann. §§ language does suggest . . . that an accused can withdraw 8-1001, 8-1002 (W estlaw); Ky. Rev. Stat. Ann. §§ his or her consent to submit a specimen for testing in 189A.103, 189A.105, 189A.107 (W estlaw); La. direct contradiction to the State's argument that implied Rev. Stat. Ann. §§ 32:661, 32:666 (W estlaw); Me. consent is irrevocable."); see also Tex. Transp. Code Rev. Stat. Ann. tit. 29-A, § 2521 (W estlaw); Md. Ann. § 724.035(a) (W est 2011) (providing for immediate Code Transp. Ann. § 16-205.1 (W estlaw); Mass. suspension of license upon a person's refusal to submit to Gen. Laws ch. 90, § 24 (W estlaw); M ich. Comp. the taking of a specimen).8 Furthermore, while "a Laws. Ann. §§ 257.625c, 257.625d (W estlaw); majority of States either place significant restrictions on Minn. Stat. Ann. §§ 169A.51, 169A.52 (W estlaw); when the police officers may obtain a blood sample Miss. Code Ann. §§ 63-11-5, 63-11-8, 63-11-21 despite a suspect's refusal (often limiting testing to cases (W estlaw); M o. Rev. Stat. §§ 577.033, 577.041 involving an accident resulting in death or serious bodily (W estlaw) (amended 2014); Mont. Code Ann. § injury) [*27] or prohibit nonconsensual blood tests 61-8-402 (W estlaw); Neb. Rev. Stat. Ann. §§ 60- altogether," McNeely, 133 S. Ct. at 1566, Texas is the 6,197, 60-6,210, 60-498.01 (W estlaw); Nev. Rev. only state that purports to allow police officers to Stat. Ann. §§ 484C.150, 484C.160 (W estlaw) forcibly draw a DW I suspect's blood without a warrant (permitting use of "reasonable force" under based solely on the suspect's status as a repeat offender. 9 certain circumstances when a person refuses); Lastly, the State's position fails to acknowledge that an N.H. Rev. Stat. Ann. § 265-A:14 (W estlaw); N.J. officer who obtains a blood-draw warrant can still Stat. Ann. §§ 39:4-50.2, 39:4-50.4a (W estlaw); comply with the "shall require" language of section N.M. Stat. Ann. § 66-8-111 (W estlaw); N.Y. Veh. 724.012(b) while at the same time not running afoul of & Traf. Laws § 1194 (W estlaw); N.C. Gen. the Fourth Amendment. See McGruder v. State, Stat. Ann. § 20-16.2 (W estlaw); N.D. Cent. Code S.W.3d , , No. 10-13-00109-CR, 2014 Tex. App. Ann. §§ 39:20-01, 39:20-01.1, 39:20-04 LEXIS 9022, *8, 2014 WL 3973089, at *3 (Tex. App.-- (W estlaw); Ohio Rev. Code Ann. § 4511.191 Waco Aug. 14, 2014, pet. filed) ("[S]ection 724.012(b) (W estlaw) (allowing officer to employ "whatever does not require a blood or breath specimen be taken reasonable means are necessary" to ensure contrary to the Fourth Amendment; that is, without a submission; providing officers with criminal and warrant or without a recognized exception to the warrant civil immunity); Okla. Stat. Ann. tit. 47, § 753 requirement.") (W estlaw); Or. Rev. Stat. Ann. §§ 813.095, 813.100 (W estlaw); 75 Pa. Cons. Stat. Ann. § 8 Justice Sotomayor's discussion of implied- 1547 (W estlaw); R.I. Gen. Laws Ann. § 31-27-2.1 consent laws, which the State is using as the basis (W estlaw) (amended 2014); S.C. Code Ann. §§ for its argument, was not joined by a majority of 56-5-2950, 56-5-2951 (W estlaw) (amended by the Court. See Forsyth, 438 S.W.3d at 222 n.3. 2014 S.C. Act 158); S.D. Codified Laws §§ 32-23- 9 W e do note that Nevada's and Ohio's implied- 1, 32-23-10 (W estlaw) (officer can "require" consent schemes seem to allow officers to use suspect arrested for DW I to submit); Tenn. Code "reasonable force" or "whatever reasonable Ann. § 55-10-406 (W estlaw); Utah Code Ann. §§ means are necessary" to obtain samples from a 41-6a-520, 41-6a-524 (W estlaw); Vt. Stat. Ann. person who refuses. Like the Texas statute, tit. 23, § 1202 (W estlaw); Va. Code Ann. §§ 18.2- however, neither the Nevada nor the Ohio statute 268.2, 18.2-268.3 (W estlaw) (refusal is a separate crime); Wash. Rev. Code Ann. § 46.20.308 CR, 2014 Tex. App. LEXIS 8054, 2014 WL (W estlaw); W. Va. Code Ann. § 17C-5-7 3697917, at *2 (Tex. App.--Houston [1st Dist.] (W estlaw); Wis. Stat. Ann. § 343.305 (W estlaw); July 24, 2014, no pet.) (mem. op., not designated Wyo. Stat. Ann. § 31-6-102 (W estlaw). for publication) (same). Nor are we persuaded by the State's reliance on Additionally, Beeman is distinguishable. The officer dictum in Beeman v. State describing the implied-consent in Beeman arrested the defendant for DW I and obtained a statute as "ano ther metho d o f co nd uc ting a warrant to draw his blood. 86 S.W.3d at 614. The constitutionally valid [warrantless] [*29] search." 86 defendant, who refused a breath test and objected to the S.W.3d 613, 615 (Tex. Crim. App. 2002). First, a statute blood draw, argued that the search was invalid because it cannot authorize what the Constitution forbids. State v. violated the implied-consent statute--i.e., he revoked his Mosely, 348 S.W.3d 435, 442 (Tex. App.--Austin 2011, consent. Id. at 615. The court held that "once a valid pet. ref'd). search warrant is obtained[,] . . . consent, implied or explicit, becomes moot." Id. at 616. Here, in contrast, Second, the San Antonio Court of Appeals relied on Hodges never obtained a warrant and relied solely on the the Beeman dictum in Aviles v. State, 385 S.W.3d 110 repeat-offender provision of the implied-consent statute (Tex. App.--San Antonio 2012), vacated, 134 S. Ct. 902, to justify the forced blood draw. The totality of the 187 L. Ed. 2d 767 (2014), a factually similar case circumstances surrounding appellant's consent, and his involving section 724.012(b)(3)(B). There, the San effective withdrawal of consent, is therefore not moot; to Antonio court held that section 724.012(b)(3)(B) permits the contrary, it is of utmost [*31] importance in assessing an officer to take a blood specimen from a DW I suspect the reasonableness of the search under the Fourth without a warrant if the officer has information that the Amendment. For these reasons, we conclude that the suspect has been previously convicted of DW I on at least State's reliance on Beeman for the proposition that section two prior occasions. Aviles, 385 S.W.3d at 116. The 724.012(b)(3)(B) permits the warrantless blood draw Supreme Court vacated the San Antonio court's judgment from a DW I suspect who has effectively withdrawn his and remanded the case for consideration in light of implied consent is not persuasive. McNeely. Aviles, 134 S. Ct. at 902. The San Antonio court recently issued a new opinion in Aviles, rejecting Finally, the dissent suggests that appellant is similar its earlier reliance on the Beeman dictum and holding to the defendant in United States v. Knights, 534 U.S. that section 724.012(b)(3)(B) is not a permissible 112, 122 S. Ct. 587, 151 L. Ed. 2d 497 (2001). The facts exception to the warrant requirement. 2014 Tex. App. of this case, however, are distinguishable. In Knights, the LEXIS 8508, 2014 WL 3843756, at *3. 1 0 The Supreme defendant was on probation and agreed in writing to Court's remand of Aviles suggests that section submit his person, property, place of residence, vehicle, 724.012(b)(3)(B) cannot serve as the sole basis for and personal effects to search at any time, with or without mandating a warrantless blood draw when the totality of a search warrant, warrant of arrest, or reasonable cause by the circumstances surrounding the blood draw indicate a any probation officer or law enforcement officer. 534 lack of valid consent. U.S. at 114. Here, in contrast, the record contains no evidence to suggest that appellant was on probation when 10 See also Forsyth, 438 S.W.3d at 221 the offense occurred, or that he agreed in writing to (declining to rely on Beeman for proposition that submit to a warrantless search by probation officials or implied consent is a valid exception to the anyone else. Appellant was not searched as a condition of warrant requirement); Sutherland, 436 S.W.3d at probation. Furthermore, searches such as the one in 35-36 (discussing Beeman in the context of the Knights are viewed in a different context because remand of Aviles); Weems, 434 S.W.3d at 660-61 probation (and parole) is considered an extension of (same); Reeder, 428 S.W.3d at 928 (noting the incarceration. See id. at 119 ("Inherent in the very nature Supreme Court's remand [*30] of Aviles casts of probation [*32] is that probationers do not enjoy the "grave doubt" on the reasoning of Beeman); absolute liberty to which every citizen is entitled." Villarreal, S.W.3d at , 2014 Tex. App. LEXIS (internal quotations omitted)). Nothing in the record 645 at *20 2014 WL 1257150, at *11 (noting the before us suggests that appellant was subject to some sort Beeman court recognized that implied-consent of "conditional liberty" as contemplated in Knights. Nor laws do not give police officers anything more did the State assert at trial or on appeal that the search of than what the Constitution already gives them). appellant was based on such an exception. But see Perez, 2014 Tex. App. LEXIS 2681, 2014 In sum, appellant withdrew his implied consent when WL 943126, at *6-*7 (relying solely on Beeman he refused to submit to the blood draw, and the State, in dictum in a section 724.012(b)(3)(B) case to spite of appellant's physical resistance, forcibly poked a justify warrantless blood draw; providing no syringe into his arm and drew his blood anyway. Given discussion of or citation to cases rejecting the absence of a warrant, the absence of exigent Beeman dictum); Kay v. State, No. 01-13-00595- circumstances, and the absence of valid consent, we DISSENT conclude the State did not establish that the nonconsensual warrantless intrusion into appellant's DISSENTING OPINION veins was reasonable under the Fourth Amendment or The Fourth Amendment to the United States that a recognized exception to the Fourth Amendment's Constitution provides that "[t]he right of the people to be warrant requirement applied to this case. The trial court secure in their persons ... against unreasonable searches erred when it overruled appellant's motion for new trial. and seizures, shall not be violated, and no warrants shall issue" unless the warrants meet certain requirements.1 The 3. The trial court's error in overruling appellant's Supreme Court of the United States has determined that, m otion for new trial was harm ful. where a search is undertaken by law-enforcement Having concluded that the trial court erred, we next officials to discover evidence of criminal wrongdoing, the determine whether the trial court's error resulted in harm. Fourth Amendment generally requires the obtaining of a In the face of constitutional [*33] error, we must reverse judicial warrant.2 In the absence of a warrant, a search is the judgment of conviction unless we determine beyond reasonable under the Fourth Amendment only if it falls a reasonable doubt that the error did not contribute to the within a specific exception to this general warrant conviction or punishment. Tex. R. App. P. 44.2(a); requirement.3 One such exception is a search conducted Holmes v. State, 323 S.W.3d 163, 173-74 (Tex. Crim. pursuant to consent.4 App. 2010) (op. on reh'g). In this case, the blood evidence seized from appellant was inculpatory and was 1 U.S. Const. amend. IV; [*35] see also Tex. used against appellant at trial. Specifically, evidence of Const. art. I, § 9. appellant's blood alcohol content, which exceeded the 2 See Riley v. California, U.S. , , 134 S. Ct. legal limit by nearly a factor of three, was presented at 2473, 2482, 189 L.Ed.2d 430 (2014). trial. W e cannot determine beyond a reasonable doubt 3 See id. that the State's use of the evidence of appellant's blood 4 See Schneckloth v. Bustamonte, 412 U.S. 218, alcohol content did not contribute to appellant's 219, 93 S.Ct. 2041, 2043-44, 36 L.Ed.2d 854 conviction. See Holmes, 323 S.W.3d at 174. This (1973). indicates that the trial court's erroneous ruling was indeed Today, this court faces as issues of first impression a contributing factor in appellant's conviction and (1) whether section 724.012(b)(3)(B) of Texas's implied- punishment. Therefore, the error was harmful. consent statute falls within the consent exception to the Appellant's second issue is sustained. warrant requirement and (2) whether consent under this particular provision is revocable. More specifically, we IV. C O N C LU SIO N must decide whether this subsection of the statute provides a basis for concluding that appellant Jonathan Because the traffic stop in this case was reasonable, Albert Leal irrevocably consented to the blood draw. If the trial court did not err when it denied appellant's the trial court's ruling is supported by the record, we are motion to suppress. W e overrule appellant's first issue. to affirm that ruling if there is any valid theory of law that W ith regard to appellant's second issue, the State did not supports the ruling, even if the theory was not presented carry its burden to prove a recognized exception to the to the trial court and even if the theory is not advanced by Fourth Amendment's warrant requirement. W e sustain the prevailing party on appeal.5 appellant's second issue and hold that the drawing of appellant's [*34] blood without a search warrant violated 5 Alford v. State, 400 S.W.3d 924, 928 n.2 (Tex. the Fourth Amendment. The trial court erred in denying Crim. App. 2013); Miller v. State, 393 S.W.3d appellant's motion for new trial. Because the evidence of 255, 263 (Tex. Crim. App. 2012). appellant's blood alcohol content was inculpatory, we conclude it contributed to his guilt. See id. W e therefore The ultimate touchstone of the Fourth Amendment is reverse the trial court's judgment and remand to the trial reasonableness.6 W e are to examine the totality of the court for a new trial consistent with this opinion. circumstances to determine whether a search is reasonable.7 The Fourth Amendment's protection against /s/ Marc W . Brown unreasonable searches and seizures requires courts Justice reviewing searches to balance opposing interests and determine the reasonableness of a particular search in a Panel consists of Chief Justice Frost and Justices particular context.8 W hether a search is reasonable Donovan and Brown. (Frost, C.J., dissenting). depends upon the degree to which it intrudes upon an Publish -- T EX . R. A PP . P. 47.2(b). individual's privacy and the degree to which [*36] it is needed to promote legitimate government interests.9 DISSENT BY: Kem Thompson Frost Thus, context is crucial in assessing reasonableness. 696 (2013). 6 Riley, U.S. at , 134 S. Ct. at 2482. 14 Maj. op. at . 7 Samson v. California, 547 U.S. 843, 848, 126 Consent exists because individuals are deemed to S.Ct. 2193, 2197, 165 L.Ed.2d 250 (2006). know the law.1 5 This is especially true for recidivists. By 8 See Scott v. Harris, 550 U.S. 372, 383, 127 nature, they are reoffenders who, after being convicted, S.Ct. 1769, 1778, 167 L.Ed.2d 686 (2007). break the same law again. In crafting many of our state's 9 Samson, 547 U.S. at 848, 126 S.Ct. at 2197. statutory schemes, Texas lawmakers recognize the distinct risk posed by recidivists and identify specific Validity of Implied Consent to Blood Draw by DW I consequences for reoffenders.1 6 Section 724.012(b)(3)(B) Repeat Offenders provides that, for a particular class of DW I reoffenders, In assessing the validity of the implied consent in taking the action of driving on public [*38] roadways is today's case, the issue is whether police reasonably could consent to a blood draw.1 7 Accordingly, police reasonably assume that appellant, who twice before had been can assume that a DW I Repeat Offender who uses public convicted of driving while intoxicated (D W I), roadways and is charged with knowledge of laws irrevocably consented to a blood draw 10 through his governing such use, consents to a blood draw in the event conduct in operating a motor vehicle on Texas's public a police officer has reasonable grounds to believe that the roadways. Texas Transporta tion C o d e sections DW I Repeat Offender is driving while intoxicated. Just as 724.012(b)(3)(B) and 724.011 effectively advise it is reasonable for police officers to assume that the individuals with two or more prior DW I convictions category of individuals who speak the words, "Yes, I give ("DW I Repeat Offenders") that police will interpret a you consent to search," in fact, have consented, a police DW I Repeat Offender's conduct in operating a motor officer reasonably can interpret the conduct of a DW I vehicle as giving consent to a blood draw in the event of Repeat Offender in driving a vehicle on the public street a new DW I arrest. 1 1 as giving consent for the blood draw.1 8

10 Transportation Code Section 724.012 15 See Tex. Penal Code Ann. § 8.03 (W est provides that a police officer "shall require the 2014); Johnson v. State, 423 S.W.3d 385, 388 n.2 taking of a specimen of breath or blood." Tex. (Tex. Crim. App. 2014). Transp. Code Ann. § 724.012(b) (W est 2014). 16 See, e.g. Tex. Penal Code § 12.42 (W est Under this statute, an officer may take a breath 2014). sample rather than a blood sample. 17 Tex. Transp. Code Ann. § 724.012(b)(3)(B). 11 Tex. Transp. Code Ann. §§ 724.011, This opinion does not address whether an 724.012(b)(3)(B) (W est 2014). individual who drives on a public street has consented to a search based of any other section Implied consent, if otherwise valid, is sufficient to of Texas Transportation Code Section 724.012. support the consent exception.1 2 The majority, however, 18 As the majority acknowledges, the reality that rejects implied consent and suggests that despite the a driver must make a tough choice, between statute's plain statement of the consequences flowing driving and knowing that his conduct in driving from a DW I arrest for [*37] a DW I Repeat Offender, a will be interpreted as consent, does not render the police officer cannot interpret a DW I Repeat Offender's consent invalid. conduct in operating a motor vehicle as consent to a blood draw because such an interpretation would Irrevocability of Consent establish a categorical rule and categorical rules are prohibited by the Supreme Court's opinion in Missouri v. The majority suggests that, in any event, appellant McNeely.1 3 The majority says that "whenever a person effectively revoked any consent for the blood draw. But, has been arrested for DW I and is a repeat offender, under Texas's [*39] statutory scheme, consent by a DW I co nsent will necessarily exist because section Repeat Offender cannot be revoked.1 9 The majority states 724.012(b)(3)(B) says it does." 1 4 This oversimplification that there is a categorical rule that an individual's consent of how this provision of the implied-consent statute to a search is limited in scope and that such consent is operates skews the focus away from the important always subject to the right of withdrawal.2 0 The Supreme contextual considerations that should drive the court's Court has found otherwise. Revocation is not always an analysis. Analyzing consent in context leads to the option. In various contexts, the "right of withdrawal" has opposite conclusion. been found unreasonable and unavailable.21 Drawing from this body of jurisprudence and the intent and purpose of 12 M cGee v. State, 105 S.W.3d 609, 615 (Tex. the Texas Legislature in creating this particular provision Crim. App. 2003). of the implied-consent statute, it makes more sense to 13 See maj. op. at ; Missouri v. McNeely, conclude that revocation of implied consent is not an U.S. , , 133 S. Ct. 1552, 1561, 185 L. Ed. 2d option for a DW I Repeat Offender. extend parole only because it is able to condition it upon 19 See Tex. Transp. Code Ann. § 724.011, et compliance with certain requirements.2 7 " 2 8 Significantly, seq. the high court reasoned that the State is not required to 20 See Mason v. Pulliam, 557 F.2d 426, 428 "ignore the reality of recidivism or suppress its interests (5th Cir. 1977). in 'protecting potential victims of criminal enterprise' for 21 See U.S. v. Spriggs, 30 F.3d 132, 132 (4th fear of running afoul of the Fourth Amendment." 2 9 Cir. 1994), cert. denied, 513 U.S. 1159, 115 S. Ct. 1120, 130 L. Ed. 2d 1083 (1995) (holding that 22 See U.S. v. Knights, 534 U.S. at 116, 122 visitor to prison could not revoke consent to S.Ct. at 590. search); U.S. v. Knights, 534 U.S. 112, 116, 122 23 The Supreme Court of the United States also S.Ct. 587, 590, 151 L.Ed.2d 497 (2001) (holding has upheld searches of parolees based on statutory that probationers may not revoke consent to scheme as opposed to the parolee's signature on a searches); U.S. v. Herzbrun, 723 F.2d 773, 775 form. See Samson v. California, 547 U.S. 843, (11th Cir. 1984) (holding that airline passengers 857, 126 S. Ct. 2193, 165 L. Ed. 2d 250 (2006). may not revoke consent to search); U.S. v. 24 Knights, 534 U.S. at 116, 122 S.Ct. at 590. Haynie, 637 F.2d 227, 230 (4th Cir. 1980) The Court of Criminal Appeals of Texas has held (same). that consent given by a probationer in accepting a probation condition is invalid under the Fourth Consent affects the balance of interests between an Amendment and Article 1, Section 9 of the Texas individual and the government.2 2 The balance can tip for Constitution. See Tamez v. State, 534 S.W.2d 686, or against revocation of consent, depending on the 690-92 (Tex. Crim. App. 1976). U.S. v. Knights circumstances. For example, in the context of searches of overruled Tamez with respect to the Fourth probationers' homes, the Supreme Court, in United [*40] Amendment. See Townes v. State, 293 S.W.3d 227, States v. Knights, relied on a probationer's signed form 2 3 230-31 (Tex. App.--San Antonio 2009, no pet.). to enforce the probationer's agreement to "submit to a The Court of Criminal Appeals has held that search 'by any probation officer or law enforcement Article 1, Section 9 of the Texas Constitution does officer.'" 2 4 In concluding that the probationer's motion to not provide any greater right than the Fourth suppress evidence from such a search should be denied, Amendment. See Hulit v. State, 982 S.W.2d 431, the Supreme Court reasoned that: 437 (Tex. Crim. App. 1998). Even if the Texas Constitution did provide a greater right, the DW I The judge who sentenced Knights to search is based upon probable cause unlike the probation determined that it was necessary search probation condition determined to be too to condition the probation on Knights' broad in Tamez. See Tamez, 534 S.W.2d at 692. acceptance of the search provision. It was 25 See id [*42] . reasonable to conclude that the search 26 See id. condition would further the two primary 27 Similarly, for DW I Repeat Offenders the goals of probation--rehabilitation and State of Texas has conditioned the privilege of protecting society from future criminal driving upon implied consent to a blood draw. See violations. The probation order clearly T e x . T ra n s p . C o d e A n n . § § 7 2 4 .0 1 1 , expressed the search condition and 724.012(b)(3)(B). Knights was unambiguously informed of 28 See Samson, 547 U.S. at 850, 126 S.Ct. at it. T he p ro b a tio n co nd itio n th us 2198. significantly d im inish e d K n ights' 29 Id. at 849, 2198. reasonable expectation of privacy. 534 U.S. at 119-20, 122 S.Ct. at 591-92. The Supreme Court's consideration of the "reality of recidivism" as key to the government's interest in protecting potential victims of crime has obvious In weighing the government's interest in Knights, the application in the context of the DW I Repeat Offender, high court, recognizing the context, noted that the who poses a grave risk to public safety on roadways. probationer is more likely than the ordinary citizen to Courts have observed that "an automobile in the hands of violate the law.25 In light of this reality, the Supreme a drunk driver can be just as lethal a weapon as a gun" 3 0 Court essentially determined that the State, to further its and have "repeatedly lamented" the "increasing slaughter goal of protecting the public from past offenders, may on our highways. . . now reach[ing] the astounding condition the granting of [*41] a privilege upon the past figures only heard of on the battlefield." 3 1 The high court's offender's irrevocable consent to a search.2 6 And, in the determination that the State is not required to suppress its context of parolees, the Supreme Court found it interests in protecting potential victims of crime out of significant that "in most cases, the State is willing to concern of stepping on the Fourth Amendment is particularly relevant and compelling in the repeat- majority cites cases holding that today airport searches offender drunk-driving context. are administrative and no consent is needed at all. 3 9 The majority argues that it is unpersuasive to attempt to 30 U.S. v. Tristan-Madrigal, 601 F.3d 629, 633- justify a rule of irrevocable consent by comparing a 34 (6th Cir. 2010) (internal quotations omitted). warrantless blood draw to an administrative search. But, 31 Michigan Dept. of State Police v. Sitz, 496 the danger factor that has driven courts to conclude U.S. 444, 451, 110 S. Ct. 2481, 2486, 110 L. Ed. administrative searches are reasonable in the context of 2d 412 (1990) (internal quotations omitted). perilous and high-risk circumstances only further supports the position that preventing a DW I Repeat Similar public-safety concerns have prompted courts Offender from revoking [*45] consent to a blood draw is to fashion special exceptions to the warrant requirement also reasonable under the Fourth Amendment. Though and to disallow revocation of implied consent given in administrative searches have no requirement of consent exchange for a privilege. For example, in considering or individualized suspicion, section 724.012(b)(3)(B) consent [*43] given in exchange for the benefit of air requires an officer to have made a valid arrest of a DW I travel, courts have disallowed revocation, holding that Repeat Offender before the officer obtains a blood draw. officials are not required to ignore the attendant dangers If administrative searches at airports are reasonable under of air piracy. The Eleventh Circuit concluded, even the Fourth Amendment, then it is also reasonable to before the increased concern following the infamous enforce this particular provision of the implied-consent terrorist attacks on America on September 11, 2001, that statute in the narrow context of DW I Repeat Offenders to keep the airways safe from "the intense danger of air exercising the privilege of driving on public roadways. piracy," airports are "critical zones" in which special Fourth Amendment considerations apply.32 Courts have 38 See maj. op. at . determined that an individual who begins the process of 39 See George v. Rehiel, 738 F.3d 562, 575 (3d airport screening may not avoid the search by asking to Cir. 2013); Elec. Privacy Info. Ctr. v. U.S. Dep't leave.3 3 Noting that air travel is a privilege, the Fourth of Homeland Sec., 653 F.3d 1, 10, 397 U.S. App. Circuit has reasoned that it may be conditioned upon D.C. 313 (D.C. Cir. 2011); United States v. Aukai, irrevocable consent to a search.3 4 In balancing the 497 F.3d 955, 960-61 (9th Cir. 2007) (en banc). government's interest in disallowing revocation of consent, courts have placed special focus on the statutory Today's case is similar to the special cases involving scheme and purpose, noting that allowing an individual criminal recidivism and zones of danger. Yet, it presents to leave after the individual has reached the point of a unique circumstance requiring review of a search in the embarkation "greatly damages the prophylactic purpose multi-faceted context of (1) a recidivist (2) who has of the search procedure." 3 5 Importantly, "the very fact engaged in dangerous conduct on the roadways, (3) that a safe exit is available ... would, by diminishing the consented to a narrow search (blood draw or breath risks, encourage attempts." 3 6 Courts have recognized the specimen in the event of another DW I arrest) in exchange necessity for restricting [*44] the right to revoke consent for the privilege of being allowed to drive in spite of that after this crucial point, noting that the problem with past dangerous conduct, (4) accepted the benefits of the allowing a "safe exit" is that "established search conditioned privilege by driving on a public roadway, and procedures are perhaps more valuable by what they (5) is arrested for engaging in the same highly dangerous discourage than what they discover." 3 7 conduct again. Confronted [*46] with this extraordinary public endangerment and the critical need to deter the 32 See Herzbrun, 723 F.2d at 775. fatal activity, the Texas Legislature enacted a series of 33 See id. laws,4 0 specifically focusing its efforts on the severe threat 34 Haynie, 637 F.2d at 230. posed by recidivists who fail to observe the prohibition 35 See United States v. Skipwith, 482 F.2d 1272, against drunk driving even after being convicted of the 1277, 1281 (5th Cir. 1973) (Aldrich, dissenting) offense at least twice before. Because this class of (the majority agreed with this part of the offenders represents a particular, known, and heightened dissenting opinion, holding Skipwith's "right-to- threat to public safety, the Texas Legislature sought to leave" argument lacked merit). deter DW I Repeat Offenders from getting behind the 36 Id. wheel and again endangering the public by driving in an 37 See id. impaired state. The legislative solution to the recidivist threat was to provide a framework that conditioned the The majority notes that since the events of driving privilege on consent to police officers obtaining September 11, federal circuit courts have overruled prior blood or breath samples from DW I Repeat Offenders who cases that predicated the reasonableness of airport are suspected of driving while intoxicated and to obtain screening on irrevocable implied consent and determined the samples in the absence of a search warrant.4 1 This that the Fourth Amendment requires even less protection provision of the statute is narrowly tailored, specific to of the individual in dangerous contexts.3 8 Indeed, the the search, and is limited in scope, effectively serving the revoke consent at that point, then the prophylactic purpose and meeting the requirements of a warrant.4 2 purpose of the search procedure prescribed by the Texas statute would be frustrated.4 8 Likewise, the deterrent 40 See Tex. Transp. Code Section 724.001, et effect of the statutory scheme would be thwarted as the seq. (W est 2014). DW I Repeat Offender would be able to revoke consent 41 See Beeman v. State, 86 S.W.3d 613, 616 for the blood draw even after accepting the conditioned (Tex. Crim. App. 2002). privilege of driving. The State of Texas is not required to 42 See New York v. Burger, 482 U.S. 691, 703, ignore either the grave public danger of drunk driving or 107 S. Ct. 2636, 2644, 96 L. Ed. 2d 601 (1987). the reality of recidivism in DW I Repeat Offenders. Section 724.012(b)(3)(B) of Texas's implied-consent 48 See Skipwith, 482 F.2d at 1281. law creates a compact that is akin to the compact [*47] enforced against probationers and parolees. The majority The majority concludes that the DW I Repeat [*49] argues that, unlike probationers and parolees, DW I Offender can revoke consent after being arrested for Repeat Offenders do not have conditional liberty another DW I offense. According to the majority, interests. But, driving is a privilege, not a right.43 Just as reasonableness requires the State to allow the DW I it is reasonable to enforce the agreements of parolees and Repeat Offender's revocation. Rather than examine the probationers that diminish their liberty interests, it is search in the context of the State's keen interest in reasonable to enforce agreements of DW I Repeat curbing fatal recidivist activity and regulating that Offenders to consent to blood draws on condition of activity within a recognized danger zone for the purpose exercising driving privileges. of protecting the public from threat of death or injury, the majority relies on cases in home-search contexts that 43 See Tex. Transp. Code Ann. § 724.035 (W est have little application to the circumstances presented by 2014). today's case.4 9 In exchange for the privilege of driving on public 49 See maj. op. at . roads in Texas, the DW I Repeat Offender irrevocably consents to have blood drawn in the event that the DW I In the context of drunk driving and DW I Repeat Repeat Offender is arrested yet again for driving while Offenders, reasonableness does not dictate that revocation intoxicated.4 4 Under this compact, the DW I Repeat of consent is always an option, as the majority concludes. Offender faces a difficult choice:4 5 forego driving a motor It is not an option in the context of air piracy, where the vehicle on Texas roadways or consent to a blood draw in State has an interest in thwarting and deterring activity the event of another DW I arrest.4 6 The latter choice does that endangers the public. Is drunk driving by DWI not include the option of revocation.4 7 It is significant that Repeat Offenders any less risky or dangerous to human the Texas Legislature did not outright deny the driving life? Does a DWI Repeat Offender on a public roadway privilege to DW I Repeat Offenders, but instead gave create any less of a "zone of danger" than one suspected these individuals the option of enjoying the privilege of air piracy? subject to the condition. Appellant's acceptance of the Just as the need to protect the public in the airways benefits [*48] of this conditioned privilege supports the makes it reasonable to prevent individuals from revoking irrevocability of his consent. Once appellant, a DW I [*50] their consent to a search before boarding a plane, Repeat Offender, elected the condition attached to the the need to protect the public on roadways makes it driving privilege by turning the key to start the vehicle's reasonable to prevent DW I Repeat Offenders from ignition, it was too late to revoke consent. At that point, revoking consent to a search after being arrested for a as a DW I Repeat Offender, appellant had accepted the new DW I offense. Allowing a DW I Repeat Offender who risk of a blood draw should he be arrested for driving embarks on a public roadway to revoke consent to a while intoxicated. search once arrested for DW I provides the "safe exit" the Supreme Court condemned in the air piracy context. 5 0 Just 44 See Tex. Transp. Code Ann. §§ 724.011; as allowing revocation in the airways context would 724.012. frustrate the federal scheme, the "safe exit" the majority 45 See McGautha v. California, 402 U.S. 183, creates today undermines Texas's ability to prosecute 213, 91 S. Ct. 1454, 28 L. Ed. 2d 711 (1971). DW I Repeat Offenders who choose to drive drunk again. 46 Tex. Transp. Code § 724.011. 47 See generally, id. at § 724.011, et seq. 50 See Skipwith, 482 F.2d at 1281. If a police officer suspects a DW I Repeat Offender The Texas Legislature has recognized the serious and of driving while intoxicated, the officer shall arrange for pervasive threat posed by recidivists and has taken a statutory blood draw or the collection of a breath focused action to address it in our state by imposing specimen. W ere the DW I Repeat Offender entitled to conditions on DW I Repeat Offenders who, despite their prior DW I convictions, are granted and accept the based upon the DW I Repeat Offender's privilege of driving on Texas roadways. Both this voluntary choice to exercise, and accept deterrence interest and the reality of recidivism among the benefits of, a privilege (driving) DW I Repeat Offenders are important factors in granted by the State on condition of determining whether a search is reasonable under the consent to the search. Fourth Amendment. 51

51 See Knights, 534 U.S. at 116, 122 S.Ct. at These limiting principles, coupled with the government's 590, Samson, 547 U.S. at 850, 126 S.Ct. at 2198; compelling interests in protecting the public from the See Skipwith, 482 F.2d at 1277, 1281. heightened risk of death or injury from recidivist drunk drivers, make it reasonable to prevent a DW I Repeat In holding that the State may not rely upon the DW I Offender arrested for drunk driving from revoking Repeat Offender's statutory [*51] consent or enforce consent to a statutory blood draw.5 3 section 724.012(b)(3)(B) of the implied-consent statute, the majority does not properly account for the crucial 52 See Maryland v. King, 133 S.Ct. 1958, 1970, public-safety interest at stake in deterring DW I Repeat 186 L.Ed.2d 1 (2013) (noting that limits of police Offenders from drunk driving as a means of thwarting o ffic e r's d isc re tio n w e igh in fa v o r o f the extraordinary threat resulting from this deadly constitutionality [*53] of search); Skinner v. recidivist activity. These interests make it reasonable to Railway Labor Executives' Ass'n, 489 U.S. 602, prevent a DW I Repeat Offender from withdrawing 622-25, 109 S. Ct. 1402, 1416-17, 103 L. Ed. 2d consent to a blood draw upon arrest for another DW I 639 (1989) (noting that imposing a warrant offense. requirement would add little assurance of certainty and regularity not already afforded by Conclusion regulations). Today's case presents a combination of factors, 53 See Bailey v. U.S., U.S. , 133 S.Ct. 1031, compelling interests as well as limiting principles, that 1040, 185 L.Ed.2d 19 (2013) (noting the make the irrevocability of consent to a blood draw under importance of limiting principles). section 724.012(b)(3)(B) reasonable in the context of a Notably, the First Court of Appeals has concluded DW I Repeat Offender's arrest for a new DW I offense. that "the warrantless taking of appellant's blood sample in Though the state's public-safety interest is compelling, compliance with Transportation Code section 724.012(b) even that does not provide the government with a free did not violate [the defendant's] Fourth Amendment rights pass to conduct indiscriminate blood draws. There must by requiring him to submit to a warrantless blood test be limiting principles for the irrevocable statutory without his consent."5 4 Though several other sister courts consent to be reasonable and thus pass muster under the of appeals have determined that consent under the Fourth Amendment. The rationale for the rule of implied-consent statute is either invalid or revocable, 5 5 irrevocability in this limited circumstance is grounded on none of them addressed the public dangers associated built-in statutory boundaries and restrictions that operate with allowing revocation. None of them considered the as a check on police power and a strong safeguard State's strong deterrence interest or the conditional nature against unwarranted government intrusion. [*52] of the driving privilege granted to DW I Repeat Summarized below, these boundaries, sewn into the Offenders. None of them accounted for the reality of fabric of the statute, provide the necessary measure of recidivism among DW I Repeat Offenders. And, none of protection that makes the irrevocability of consent under them considered the built-in statutory checks and other subsection (b)(3)(B) reasonable in this narrow context. important limiting principles at work in this special circumstance. o The search is authorized only after police have made a valid arrest based on 54 Perez v. State, No. S.W.3d , 2014 Tex. probable cause of a repeat offender in App. LEXIS 2681, 2014 WL 943126, at *7 (Tex. the danger zone. App.--Houston [1st Dist.] Mar. 11, 2014, no pet.). o The statutory provision implying 55 See Weems v. State, 434 S.W.3d 655, 659-64 consent and authorizing the search (Tex. App.--San Antonio 2014 pet. granted); effectively functions like a warrant, Reeder v. State, 428 S.W.3d 924, 929 (Tex. App.-- tightly restricting the scope of the search Texarkana 2014, pet. granted); State v. Villarreal, by naming the single place to be searched S.W.3d , No. 13-13-00253-CR, 2014 Tex. App. and specifically identifying the single LEXIS 645, 2014 WL 1257150, at *10 (Tex. App.- thing to be seized. 5 2 -Corpus Christi Jan. 23, 2014, pet. granted); State v. Sutherland, 436 S.W.3d 28, 39-41 (Tex. App.-- o The irrevocability of consent is Amarillo 2014, pet. filed); State v. Anderson, /s/ Kem Thompson Frost S.W.3d , No. 09-13-00400-CR, 2014 Tex. App. LEXIS 11151, 2014 WL 5033262, at *8-11 (Tex. Chief Justice App.--Beaumont Oct. 8, 2014, no pet. h.). Panel consists of Chief Justice Frost, Justices This court should affirm rather than reverse the trial Donovan and Brown. (Brown, J., majority). [*54] court's judgment denying appellant's motion to Publish--T EX . R. A PP . P. 47.2(b) suppress the evidence obtained as a result of the blood draw. Because it does not, I respectfully dissent. APPENDIX B 1 of 5 DOCUMENTS

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

2015 Tex. App. LEXIS 6460

June 25, 2015, M ajority and Concurring Opinions on Remand Filed

NOTICE: Publish -- TEX. R. APP. P. 47.2(b). arguments, we do not address them again here. See Keehn v. State, 245 S.W.3d 614, 614 n.1 (Tex. App.--Fort PRIO R HISTORY: [*1] On Appeal from the 122nd Worth 2007), aff'd, 279 S.W.3d 330 (Tex. Crim. App. District Court, Galveston County, Texas. Trial Court 2009); see, e.g., Weatherford v. State, 840 S.W.2d 727, Cause No. 12CR0947. 728-29 (Tex. App.--Eastland 1992, pet. ref'd) Leal v. State, 452 S.W.3d 14, 2014 Tex. App. LEXIS (considering on remand only the issues explicitly raised 12286 (Tex. App. Houston 14th Dist., 2014) by Court of Criminal Appeals). W e therefore incorporate our original opinion by reference. In order [*2] for a complaint to be presented on C O U N SEL: For Appellant: M ark W. Stevens, appeal, a timely request, objection, or motion must have GALVESTON, TX. been made to the trial court stating the grounds for the ruling with sufficient specificity to make the trial court For State: Allison Lindblade, GALVESTON, TX. aware of the complaint, and the trial court must have expressly or implicitly ruled on the request, objection, or JUDGES: Panel consists of Chief Justice Frost and motion. Tex. R. App. P. 33.1(a)(1)(A). The complaining Justices Donovan and Brown. (Frost, C.J., concurring). party must have clearly conveyed to the trial court the particular complaint raised on appeal, including the OPINION BY: Marc W . Brown precise and proper application of law as well as the underlying rationale. Pena v. State, 285 S.W.3d 459, 463- OPINION 64 (Tex. Crim. App. 2009). Error preservation does not involve a hyper-technical or formalistic use of words or M AJORITY OPINION ON REM AND phrases; rather, straightforward communication in plain Appellant Jonathan Albert Leal appealed the trial English is sufficient. Id. at 464. The party must let the court's denial of his motion to suppress and motion for trial judge know (1) what he wants; (2) why he thinks he new trial. In our original opinion reversing the trial is entitled to it; and (3) do so clearly enough for the judge court's judgment, we held that the warrantless blood draw to understand him at a time when the judge is in the violated Leal's Fourth Amendment rights. Leal v. State, proper position to do something about it. Id. W e consider 452 S.W.3d 14, 32 (Tex. App.--Houston [14th Dist.] the context in which the complaint was made and the 2014), vacated and remanded, 456 S.W.3d 567 (Tex. parties' shared understanding at that time. Id. A Crim. App. 2015). On its own motion, the Court of defendant who presents an argument to the trial judge in Criminal Appeals granted review of our decision, time for the judge to rule on it has preserved the issue for vacated our judgment, and remanded the case to us to appellate review. See Clarke v. State, 270 S.W.3d 573, address only "whether appellant preserved his claim that 580 (Tex. Crim. App. 2008). [*3] "A trial court's ruling the warrantless blood draw violated his Fourth on a matter need not be expressly stated if its actions or Amendment rights." Leal, 456 S.W.3d at 568. Although other statements otherwise unquestionably indicate a we implicitly held in our original opinion that Leal ruling." Rey v. State, 897 S.W.2d 333, 336 (Tex. Crim. preserved his claim, we now explicitly conclude and App. 1995). explain that he did so. Leal's claim was preserved when the trial court As a preliminary matter, because our original implicitly overruled his amended motion to suppress. opinion disposed of the merits of Leal's primary Leal timely filed an amended motion to suppress objecting to the warrantless blood draw on Fourth filed. See Tex. R. App. P. 21.4(b). On April 26, 2013, at Amendment grounds. See Porath v. State, 148 S.W.3d the new-trial hearing, Leal asked for and was given leave 402, 409 (Tex. App.--Houston [14th Dist.] 2004, no pet.) to supplement his original motion for new trial. The State (motion to suppress is a specialized objection to the did not object. See State v. Moore, 225 S.W.3d 556, 569 admission of evidence). Specifically, citing Missouri v. (Tex. Crim. App. 2007) (trial court retains authority to McNeely, U.S. , 133 S. Ct. 1552, 185 L. Ed. 2d 696 allow untimely amendment to original motion for new (2013), which had not yet been decided, Leal claimed trial within seventy-five-day period, so long as the State that the repeat-offender provision of the implied-consent does not object). At the hearing, Leal's counsel argued, statute violated the Fourth Amendment. The record based on the Supreme Court's holding in McNeely, that shows that the trial court was aware of Leal's objection; the warrantless blood draw violated Leal's Fourth however, the trial court did not explicitly rule on the Amendment rights. The State presented counter- amended motion at the suppression hearing. Leal arguments on the merits of Leal's claim, demonstrating renewed his objection at trial when the State offered a the p a rties' shared unde rsta nd ing tha t L e a l's report containing an analysis of Leal's blood.1 The trial constitutional rights were at stake. See Pena, 285 S.W.3d court then admitted the report and allowed the analyst to at 464. The trial court denied Leal's motion for new trial testify regarding Leal's blood alcohol content. Based on in an order dated May 21, 2013. the trial court's action in allowing the State to present In sum, Leal timely presented his complaint to the evidence of Leal's blood alcohol content to the jury, the trial court in both his amended motion to suppress and court implicitly overruled Leal's amended motion to his supplemental motion for new trial. See Pena v. State, suppress, and Leal preserved his claim that the 353 S.W.3d 797, 807 (Tex. Crim. App. 2011) (complaint warrantless [*4] blood draw violated his Fourth is timely if made as soon as ground of objection becomes Amendment rights. See Rey, 897 S.W.2d at 336-37; see, [*6] apparent). Leal's complaint was adequately specific e.g., Cantu v. State, 994 S.W.2d 721, 730-31 (Tex. App.-- to put the trial court on notice of his Fourth Amendment Austin 1999, pet. dism'd) (error was preserved when trial challenge to the warrantless blood draw. See, e.g., court did not expressly rule on defendant's objection to Gillenwaters v. State, 205 S.W.3d 534, 537 (Tex. Crim. expert witness's qualifications, but permitted expert to App. 2006) (although motion for new trial did not answer the question if he knew); Riddle v. State, No. 02- mention "vague" or "vagueness," defendant's complaint 02-00231-CR, 2003 Tex. App. LEXIS 7154, 2003 WL was adequately specific when he claimed on several 21983252, at *3 (Tex. App.--Fort W orth Aug. 21, 2003, o c c a sio ns d uring tria l th a t the sta tu te w as pet. ref'd) (mem. op.; not designated for publication) "unconstitutionally vague"). The trial court ruled on (error was preserved when trial court did not expressly Leal's complaint when it admitted, over objection, rule on portion of defendant's motion to suppress dealing evidence obtained as a result of the warrantless blood with inventory search, but allowed officer to testify draw and denied Leal's supplemental motion for new before the jury about the inventory search). trial. See Tex. R. App. P. 33.1; Rey, 897 S.W.2d at 336. W e therefore conclude that Leal preserved his claim that 1 W hen the State offered the report, Leal's the warrantless blood draw violated his Fourth counsel stated, "Subject to all prior objections, no Amendment rights. Accordingly, we reverse the trial specific objection at this time." Leal's "prior court's judgment and remand to the trial court for a new objections" included his amended motion to trial consistent with our original opinion. See Leal, 452 suppress. See Porath, 148 S.W.3d at 409; cf. S.W.3d at 32. Bhola v. State, No. 14-09-00154-CR, 2010 Tex. App. LEXIS 4681, 2010 WL 2501116, at *4 (Tex. /s/ Marc W . Brown App.--Houston [14th Dist.] June 22, 2010, no Justice pet.) (mem. op.; not designated for publication) (concluding defendant did not abandon his Panel consists of Chief Justice Frost and Justices motion to suppress when he stated at trial, Donovan and Brown. (Frost, C.J., concurring) "Subject to the previous objections, no objections.") Publish -- T EX . R. A PP . P. 47.2(b).

Furthermore, Leal presented his claim to the trial CONCUR BY: Kem Thompson Frost court in his supplemental motion for new trial. Leal was sentenced on February 14, 2013. He timely filed a CONCUR motion for new trial on March 8, 2013. See Tex. R. App. P. 21.4(a). The original motion did not challenge the CONCURRING OPINION ON REM AND legality of the warrantless blood [*5] draw. The Supreme Court decided McNeely on April 17, 2013. On Appellant moved to suppress evidence of his blood- April 22, 2013, Leal filed a supplemental motion for new alcohol concentration by challenging the legality of a trial citing McNeely and claiming that the warrantless traffic stop that eventually led to his arrest for driving blood draw violated his Fourth Amendment rights. Under while intoxicated (DW I). Appellant [*7] later amended rule 21.4(b), the supplemental motion was not timely his motion to suppress to challenge the warrantless blood draw on Fourth Amendment grounds. On original submission and over my dissent, this court reversed identified in the amended motion is appellant's assertion appellant's DW I conviction and remanded for a new that the warrantless blood draw was taken pursuant to a trial.1 Addressing an issue of first impression in this Texas statute that, as applied, violated the Fourth court, the majority concluded that the trial court should Amendment.6 The Court of Criminal Appeals recognized have suppressed evidence of appellant's blood-alcohol that appellant's amended motion contains a challenge to content because law enforcement officers obtained the the warrantless blood draw on Fourth Amendment evidence by means of a warrantless blood draw, which grounds.7 By including this ground in his amended violated appellant's Fourth Amendment right to be free motion to suppress, appellant identified his Fourth from unreasonable searches and seizures.2 Amendment complaint with sufficient specificity to preserve error on the claim.8 1 See Leal v. State, 452 S.W.3d 14, 32 (Tex. App.--Houston [14th Dist.] 2014), vacated, 456 6 Appellant's amended motion states: S.W.3d 567 (Tex. Crim. App. 2015). 2 Id. Challenge to Mandatory Blood On its own motion, the Court of Criminal Appeals Draw The State is apparently granted review of this court's decision, vacated the relying on a blood [*9] draw judgment, and remanded with instructions for this court taken without a warrant under to address whether appellant preserved error on his claim Texas Transportation Code Sec. that the warrantless blood draw violated his Fourth 724.011, as amended in 2009. The Amendment rights.3 On remand, the majority concludes Amendment purports to provide that appellant preserved error, that the trial court's that a mandatory blood draw may judgment should be reversed, and that the case should be be taken where an officer has remanded for a new trial. I agree, but for different credible evidenc e tha t an reasons. individual has been previously convicted twice of DW I. 3 Leal v. State, 456 S.W.3d 567, 568 (Tex. Crim. App. 2015). The subject amendment to Sec. 724.011 is unconstitutional on Preservation-of-Error Analysis its face and as applied, as a violation of the U.S. Constitution, Appellant preserved error by making a timely, A m d . V II I , w h ic h p reve nts specific complaint in the trial court and securing an unreasonable searches and adverse ruling.4 [*8] Specifically, appellant moved the seizures. trial court to suppress evidence of his blood-alcohol content, identifying grounds for this relief in a written motion to suppress. Before the suppression hearing, Appellant's curious reference to the Eighth appellant amended the motion to include additional Amendment does not impact the preservation-of- grounds for relief. Though the parties' arguments at the error analysis because it is apparent from the hearing focused on another ground in the motion, to context that appellant meant the Fourth preserve error a movant need not discuss all the grounds Amendment. Although appellant stated that at the hearing.5 All that is required is specificity, Section 724.011 violated the Eighth Amendment, timeliness, and an adverse ruling. The record establishes appellant's argument was that taking a warrantless all three. blood draw as required by the statute violated his right under the United States Constitution to be 4 Thomas v. State, 408 S.W.3d 877, 882 (Tex. free from unreasonable searches and seizures, and Crim. App. 2013); Fuller v. State, 827 S.W.2d this right is set forth in the Fourth Amendment to 919, 928 (Tex. Crim. App. 1992). the United States Constitution. See U.S. Const. 5 Eisenhauer v. State, 754 S.W.2d 159, 160-61 amend. IV. The motion contains no Eighth (Tex. Crim. App. 1988), overruled on other Amendment arguments, and the odd reference grounds by Heitman v. State, 815 S.W.2d 681, appears to be a typographical error. 690 (Tex. Crim. App. 1991); Cisneros v. State, 7 See Leal, 456 S.W.3d at 568. 290 S.W.3d 457, 462-63 (Tex. App.--Houston 8 See Thomas, 408 S.W.3d at 882. [14th Dist.] 2009, pet. dism'd); Vicknair v. State, 670 S.W.2d 286, 288 (Tex. App.--Houston [1st Tim eliness Dist.] 1983), aff'd, 751 S.W.2d 180, 187-90 (Tex. Crim. App. 1988). The record shows the following chronology of events relevant to the preservation-of-error analysis: Specificity At the time of the hearing, the only live motion Among the grounds for suppression appellant pending before the trial court was the amended motion to suppress.9 The moment appellant filed the amended Corpus Christi 1997, no pet.). motion, the original motion [*10] ceased to exist. In the 12 Steere, 445 S.W.2d at 253. context of legal pleadings and motions, an amended 13 See id. instrument is a substitute for the original; the old and new instruments do not co-exist--the latter takes the Adverse Ruling place of the former. This defining feature of an amended At the end of the [*12] suppression hearing, the trial motion distinguishes it from a supplemental motion, court denied the pending motion to suppress, which was which is an addition rather than a replacement.1 0 Because the amended motion, thus rejecting all grounds contained the amended motion superseded and supplanted the in that motion. Even though arguments at the hearing original motion,1 1 the original motion could no longer be focused on another ground for suppression of the blood- considered.1 2 Thus, when the trial court denied the motion alcohol evidence, appellant preserved error on all to suppress, the trial court denied the only pending grounds contained in the amended motion, including the motion--appellant's First Amended Motion to Suppress.1 3 Fourth Amendment ground he now asserts on appeal. To In that motion appellant raised the claim this court preserve error, it was not necessary for appellant to argue adjudicated on original submission. The trial court that ground at the hearing.1 4 At the conclusion of the denied the motion at the suppression hearing during trial, hearing, the trial court refused to suppress the evidence before admitting the blood-alcohol evidence. Thus, and denied the pending motion (First Amended Motion appellant's objection was timely. to Suppress) in its entirety. Thus, appellant secured the requisite adverse ruling to preserve error. 9 In its opinion, the Court of Criminal Appeals stated that the suppression hearing pertained to 14 See Eisenhauer, 754 S.W.2d at 160-61; the original motion to suppress rather than the Cisneros, 290 S.W.3d at 462-63; Vicknair, 670 amended motion to suppress. Leal, 456 S.W.3d at S.W.2d at 288. 568. Nothing in the record suggests that appellant withdrew the amended motion or that appellant Absence of Waiver refiled the original motion, or that appellant took any other action [*11] that might arguably have Though a party moving to suppress evidence may brought the superseded motion back to life. The waive a ground contained in the motion at the hearing on amended motion contained all of the grounds the motion, no such waiver occurred. At the suppression asserted in the original motion as well as hearing, appellant did not state or otherwise indicate that additional grounds. The suppression hearing he was waiving or withdrawing his constitutional focused on a ground contained in the original challenge to the blood-draw statute. Nor did appellant motion, but at the time of the hearing the original state that he was urging only the grounds that he argued motion was a nullity, having been replaced by or mentioned at the suppression hearing. The State did operation of law upon the filing of the amended not object to appellant's [*13] amendment of the motion motion, which also contained the ground that was to suppress, nor did the State argue that the trial court the focus of the hearing. See Steere v. State, 445 should not consider appellant's constitutional challenge S.W.2d 253, 253 (Tex. App.--Houston [1st Dist.] to the blood-draw statute. Nor did the trial court refuse to 1969, writ dism'd). consider it. 10 A supplemental motion is an addendum to Though appellant did not devote argument to his the original motion. Cf. Tex. R. Civ. P. 62-65. See constitutional challenge to the blood-draw statute in his also B LACK 'S L AW D IC TIO N ARY 1438, 1439 (6th oral presentation to the trial court, the evidence adduced ed. 1990) (defining "supplemental" as "That at the suppression hearing included the following: which is added to a thing to complete it," and noting that supplemental affidavits, answers, 1. when asked to voluntarily provide a complaints, and pleadings, add to the original). blood sample, appellant refused to do so; But, an amended motion is a substitute--a replacement--for the original. See Riney v. 2. Officer Hodges was required by State,28 S.W.3d 561, 565-66 (Tex. Crim. App. the blood-draw statute to have a blood 2000) (noting that once indictment was amended sample taken from appellant; it became the "official" indictment in the case); see also Eastep v. State, 941 S.W.2d 130, 132-33 3. appellant was taken to a hospital (Tex. Crim. App. 1997)(holding that, in the emergency room where a blood sample context of indictment, an amendment is an was taken; alteration to the face of the charging instrument 4. just before the blood draw, which affects the substance of the charging appellant stated that he wanted his instrument), overruled on other grounds by attorney present during the blood draw; Riney, 28 S.W.3d at 561. and 11 Steere, 445 S.W.2d at 253; cf. Herrera v. State, 951 S.W.2d 197, 198-99 (Tex. App.-- 5. appellant was "uncooperative during the blood draw." 1 5 the Court of Criminal Appeals issued its opinion in State v. Villarreal.1 8 In Villarreal, the high court held that implied consent under Texas Transportation Code section 724.012(b) "cannot substitute for the free and voluntary consent that the Fourth Amendment requires." 1 9 15 At one point, appellant's counsel asked Since then, the Court of Criminal Appeals has granted Officer Hodges how many people held appellant the State's motion for rehearing in Villarreal, and ordered down during the blood draw, and Officer Hodges the case resubmitted so that the high court could consider answered "three." W ithout striking the testimony, the arguments presented by the State in [*16] its the trial court then stated "Let's not go there right rehearing motion. To date, the Court of Criminal Appeals now. I want to hear just Motion to Suppress has not withdrawn or changed its opinion or judgment in issues." Appellant's counsel did not respond to Villarreal, nor has the court issued a new opinion or this statement [*14] and continued his judgment. In this context, the Fourteenth Court of examination of the witness. It is not clear what Appeals still is bound by the majority opinion in the trial court meant by this comment. The trial Villareal. Under that standing precedent, the trial court's court may have meant that the number of people judgment in the case under review must be reversed and who held appellant down while his blood was the case remanded for a new trial.2 0 drawn over appellant's objection was not relevant to any issue in the amended motion to suppress, 17 See Leal v. State, 452 S.W.3d 14, 32-40 (Tex. including the challenge to the mandatory blood- App.--Houston [14th Dist.] 2014), vacated, 456 draw statute. Even presuming that the trial court S.W.3d 567 (Tex. Crim. App. 2015). was expressing a belief that there was no issue in 18 See S.W.3d , 2014 Tex. Crim. App. LEXIS the amended motion to suppress regarding the 1898, No. PD-0306-14, 2014 WL 6734178 (Tex. blood-draw statute, appellant's counsel never Crim. App. Nov. 26, 2014) (reh'g granted). expressed any agreement with this belief. 19 2014 Tex. Crim. App. LEXIS 1898, [WL] at *11. During the suppression hearing, appellant's counsel 20 See Villarreal, S.W.3d at , 2014 Tex. stated that the prosecutor and he had agreed to first Crim. App. LEXIS 1898, 2014 WL 6734178 at *8- present evidence regarding the validity of the stop and 21; State v. Tercero, S.W.3d , , 2015 Tex. then present evidence regarding other issues. After the App. LEXIS 3284, *5, 2015 WL 1544519, at *2-6 parties each presented the validity-of-the-stop evidence, (Tex. App.--Houston [1st Dist.] Apr. 2, 2015, no each side presented additional evidence, and appellant pet. h.) (applying Villarreal as binding precedent argued that one or more of his statements that the State after rehearing motion was granted by the Court wanted to use against him at trial were made after he of Criminal Appeals in Villarreal). requested a lawyer. No further evidence was presented. Near the end of the hearing, as the lunch break drew Conclusion near, the trial court asked counsel if there was anything else "we [*15] need to talk about right now." Appellant's The record shows that appellant made a timely, counsel responded "No, not here." To preserve error, specific complaint that the warrantless drawing of his however, appellant was not required to talk about his blood violated his Fourth Amendment right to be free constitutional challenge to the blood-draw statute at the from unreasonable searches and seizures, and secured an suppression hearing when appellant had presented the adverse ruling. Appellant preserved error as to this ground by means of his written motion to suppress.1 6 complaint. Under binding precedent from the Court of Appellant's counsel did nothing at the suppression Criminal Appeals, this court must conclude that appellant hearing sufficient to waive the challenge to the blood- did not impliedly consent for Fourth Amendment draw statute contained in the amended motion. purposes to the blood draw under Texas Transportation Code section 724.012(b)(3)(B) and that the warrantless 16 See Eisenhauer, 754 S.W.2d at 160-61; blood draw violated appellant's Fourth Amendment Cisneros, 290 S.W.3d at 462-63; Vicknair, 670 rights. Thus, I respectfully concur in the court's judgment S.W.2d at 288. on remand. /s/ Kem Thompson Frost Disposition of the Appeal Chief Justice [*17] On original submission, I concluded in a dissenting opinion that the warrantless blood draw did not violate Panel consists of Chief Justice Frost and Justices appellant's right to be free from unreasonable searches Donovan and Brown (Brown, J., majority). and seizures because appellant impliedly consented to the Publish -- T EX . R. A PP . P. 47.2(b). blood draw under Texas Transportation Code section 724.012(b)(3)(B).1 7 After this court issued its judgment, APPENDIX C