NUMBER 13-13-00335-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
THE STATE OF TEXAS, Appellant,
v.
JAVIER RODRIGUEZ, Appellee.
On appeal from the 319th District Court of Nueces County, Texas.
MEMORANDUM OPINION Before Chief Justice Valdez and Justices Garza and Longoria Memorandum Opinion by Chief Justice Valdez
By one issue, the State appeals the trial court’s granting of appellee Javier
Rodriguez’s motion to suppress. We affirm. I. BACKGROUND
After being involved in a multi-car accident where he and others were injured,
appellant was arrested for driving while intoxicated. A blood sample was taken from
appellee. Appellee filed a motion to suppress the test results of the blood sample,
challenging the constitutionality of section 724.012 of the Texas Transportation Code, the
mandatory blood draw statute. See TEX. TRANSP. CODE ANN. § 724.012(b) (West,
Westlaw through 2013 3d C.S.).
At the hearing on appellee’s motion to suppress, Officer Andrew Jordan testified
that on August 4, 2011, he arrived at the scene of a multi-car accident in Corpus Christi,
Texas, and he noticed appellee trapped in his vehicle bleeding and in need of assistance.
According to Officer Jordan, several people from the other cars were being transported
to the hospital and he was told “that there were substantial injuries.” Appellee was also
transported to the hospital. Officer Jordan said that at the hospital, after smelling the odor
of an alcoholic beverage in appellee’s hospital room, he placed appellee under arrest and
instructed a phlebotomist to draw appellee’s blood. Officer Jordan testified that it would
have taken between an hour and 90 minutes to get a warrant but that he never sought a
search warrant. Officer Jordan stated that he ordered the blood draw pursuant to the
mandatory blood draw statute. See id. Officer Jordan testified that he did not ask
appellee whether or not he consented to the blood draw, but “I read the form [that stated
appellee’s rights] and then I took the—I had the phlebotomist draw the blood for the
mandatory.”
At the suppression hearing, the evidence established that Officer Jordan had not
obtained a warrant to acquire appellee’s blood sample and that he relied solely on the
2 mandatory blood draw statute. The State argued that appellee impliedly consented to the
blood draw by, among other things, remaining silent when the blood was drawn. The
State further argued that section 724.012 is an exception to the warrant requirement and
in the alternative, exigent circumstances existed. In response to the State’s argument
that there is implied consent in this case because appellee allowed the blood to be drawn
and remained silent, appellee’s trial counsel stated:
And we certainly have no refusal if that were the case, but I would ask the Court to rely on the record. I think that was well developed through Officer Jordan, that the prosecutor suggested that [appellee did] not mov[e] [his] arm. . . . That Officer Jordan never considered consent [at] issue, that he simply looked right over that and the document speaks for itself, Your Honor. We got the exhibit here that he answered my direct question on. Consent nor refusal was an issue, he simply put it in front of the—read it to him, checked off mandatory, indicated no consent nor refusal [of] consent. And then moved on.
Again, the thought among [Corpus Christi Police Department] officers, Judge, is that a warrant is not an issue in a case like this, they have developed their own interpretations of 724.012(B), and they are going to stick with that regardless of what 724.012(B) says.
Regarding whether appellee consented to the blood draw, the State responded that a
suspect may not simply stay mute and then argue that neither consent nor refusal
occurred; thus, by staying quiet, appellee consented. The State did not specifically
respond to appellee’s argument that Officer Jordan had not first acquired appellee’s
refusal for a specimen. And the prosecutor stated, “there was no indication that Mr.—the
defendant in this case, the suspect, refused or in anyway state[d] he refused to consent.”
Thus, the State’s argument was that appellee had not refused to provide a specimen
because he had consented by, among other things, staying mute. The trial judge stated:
“I think there has to be some sort of affirmative consent to say that somebody consented
in that situation. So I would find that there is no consent.”
3 The parties then discussed the application of Missouri v. McNeely, which the trial
judge believed prohibits the State from acquiring a blood draw without a warrant or exigent
circumstances. See Missouri v. McNeely, __ U.S. __, 133 S.Ct. 1552 (2013). The trial
judge explained that under McNeely, when an officer is making a determination of
whether to take a blood draw because there are exigent circumstances, the officer is
required to make a fact-intensive analysis based on the circumstances and that in this
case Officer Jordan admitted he had only relied on the blood draw statute and that he did
not engage in any such analysis. It is clear from the record that the trial court did not
believe that Officer Jordan made any exigent circumstances inquiry because Officer
Jordan testified that he could rely on the statute alone and that he was not required to
obtain a warrant if he relied on the statute.
The State argued that McNeely is very narrow and that the Supreme Court did not
reach the issue of whether a mandatory blood draw statute can serve as an exception to
the warrant requirement if properly phrased. The State asserted that the additional
exigency factors as mentioned in Schmerber, “are directly imbedded into the mandatory
blood law. For example, a crash with injury and a child passenger. These exigent factors
were already thought of by our legislature and put into the mandatory blood law. That
was the purpose behind some of those mandatory blood draws.” See Schmerber v. State
of California, 384 U.S. 757, 770 (1966).
The State argued in the alternative that the evidence presented established that
there was an exigency in this case despite Officer Jordan’s testimony that he relied on
the statute alone. The trial judge stated that he did not think that the State had proven
that, in this particular case, exigent circumstances existed that justified the warrantless
4 blood draw because Officer Jordan did not think he needed a warrant and testified he
relied solely on section 724.012(b). The judge explained, “And that’s the problem, we are
trying to go back and recreate an emergency in a situation where the officer didn’t even
try [to get a warrant] because he was relying on the mandatory [blood draw] statute. So
the State is not going to have anything to support an emergency.” Finally, the State
argued that Officer Jordan’s good faith reliance on the statute required that the trial court
deny appellee’s motion to suppress. The trial court granted the motion but did not state
its reasons in the order and did not enter any findings and conclusions. The State filed a
request for findings of fact and conclusions of law, but no findings and conclusions were
filed before the death of the judge in this case.1 This appeal followed.
II. STANDARD OF REVIEW AND APPLICABLE LAW
We review a trial court’s decision on a motion to suppress for an abuse of
discretion. Crain v. State, 315 S.W.3d 43, 48 (Tex. Crim. App. 2010). Under our abuse
of discretion analysis, we use a bifurcated standard. State v. Ross, 32 S.W.3d 853, 856
1 After the Honorable Thomas F. Greenwell, the judge who granted appellee’s motion to suppress, passed away, the State filed a motion with this Court requesting that we abate this appeal and remand it for a new motion to suppress hearing with a new judge. The State argued that “[w]ithout explicit findings concerning the credibility of the witnesses who testified to the difficulty they would have had in obtaining a warrant, all inferences would run against the State concerning the factual basis for the exigency.” We denied the motion. The State filed a motion to reconsider our ruling asking that we remand the case for findings of fact and conclusions of law to be drafted in the alternative. We denied that motion.
Because the pertinent facts are undisputed and Judge Greenwell made a pertinent oral finding on the record, and Judge Greenwell orally stated the reasons for his ruling, we conclude that written findings of fact and conclusions of law are unnecessary for our disposition of the issue presented here. See Francis v. State, 428 S.W.3d 850, 855 n.10 (Tex. Crim. App. 2014) (“In the context of motions to suppress, we have further held that ‘[a]ppellate courts may review the legal significance of undisputed facts de novo.’”); State v. Cullen, 195 S.W.3d 696, 699–700 (Tex. Crim. App. 2006) (“[W]hile the appealing party must file its notice of appeal in accordance with the applicable statutes and rules, the trial court has 20 days from the date of its ruling in which to file findings of fact if it has not already made oral findings on the record.”). Moreover, as explained further below, the credibility of the witnesses’ testimony does not appear to have been at issue, and Judge Greenwell made his decision as a matter of law. Thus, we have no indication that Judge Greenwell disbelieved the testimony, and our disposition would not change even if he had.
5 (Tex. Crim. App. 2000) (en banc) (citing Guzman v. State, 955 S.W.2d 85, 88 (Tex. Crim.
App. 1997) (en banc)); see also Urbina v. State, No. 13–08–00562–CR, 2010 WL
3279390, at *1 (Tex. App.—Corpus Christi Aug.19, 2010, pet. ref’d) (mem. op., not
designated for publication). We give almost total deference to the trial court’s findings of
historical fact that are supported by the record and to mixed questions of law and fact that
turn on an evaluation of credibility and demeanor. Amador v. State, 221 S.W.3d 666, 673
(Tex. Crim. App. 2007) (citing Guzman, 995 S.W.2d at 89). We “review de novo ‘mixed
questions of law and fact’ that do not depend upon credibility and demeanor.” Id. (quoting
Montanez v. State, 195 S.W.3d 101, 107 (Tex. Crim. App. 2006)); Guzman, 995 S.W.2d
at 89.
“When a trial court makes explicit fact findings, the appellate court determines
whether the evidence (viewed in the light most favorable to the trial court’s ruling) supports
these fact findings.” State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). We will
uphold the trial court’s ruling under any applicable theory of law supported by the facts of
the case whether we infer the fact findings or consider express findings. Alford v. State,
400 S.W.3d 924, 929 (Tex. Crim. App. 2013). “Similarly, regardless of whether the trial
court has made express conclusions of law, we uphold the trial court’s ruling under any
theory supported by the facts because an appellate court reviews conclusions of law de
novo.” Id. Under our de novo review, we are not required to defer to a trial court’s
particular theory. Id. This “rule holds true even if the trial court gave the wrong reason
for its ruling.” Armendariz v. State, 123 S.W.3d 401, 403 (Tex. Crim. App. 2003).
“To suppress evidence on an alleged Fourth Amendment violation, the defendant
bears the initial burden of producing evidence that rebuts the presumption of proper police
6 conduct.” Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). “A defendant
satisfies this burden by establishing that a search or seizure occurred without a warrant.”
Id.; see also Kelly, 204 S.W.3d at 819 n.22 (noting that in the context of a case alleging
assault in a blood draw that “[i]t is important to note that appellee had the initial burden to
produce evidence to support a finding that she did not consent to . . . [the] blood draw”).
Once a defendant establishes there was no warrant, the burden shifts to the State to
prove the warrantless search was reasonable under the totality of the circumstances.
Amador, 221 S.W.3d at 672–73. The State satisfies this burden if it proves an exception
to the warrant requirement. See Gutierrez, 221 S.W.3d at 685.
“Whether a warrantless blood test of a drunk-driving suspect is reasonable must
be determined case by case based on the totality of the circumstances.” McNeely, 133
S.Ct. at 1563. In Schmerber, the United States Supreme Court held that the evidence
showed that the police officer reasonably believed that an emergency existed because
the delay in seeking or obtaining a warrant would result in the destruction of evidence.
Schmerber, 384 U.S. at 770. The court relied on evidence in the record that the alcohol
in the blood dissipates and stated,
Particularly in a case such as this, where time had to be taken to bring the accused to a hospital and to investigate the scene of the accident, there was no time to seek out a magistrate and secure a warrant. Given these special facts, we conclude that the attempt to secure evidence of blood-alcohol content in this case was an appropriate incident to petitioner’s arrest.
Id. at 770–71. In McNeely, the United States Supreme Court stated that in Schmerber it
had determined that the warrantless blood test was reasonable after considering all of the
facts and particular circumstances in that case and its analysis “fits comfortably within [its]
7 case law applying the exigent circumstances exception” to the warrant requirement.
McNeely, 133 S.Ct. at 1560.
In McNeely, the State argued that “whenever an officer has probable cause” that
an individual is driving under the influence of alcohol there are exigent circumstances
because blood alcohol evidence is inherently evanescent. Id. And, “[a]s a result, . . . so
long as the officer has probable cause and the blood test is conducted in a reasonable
manner, it is categorically reasonable for law enforcement to obtain the blood sample
without a warrant.” Id. The McNeely court rejected the State’s argument and held that
“[i]n those drunk-driving investigations where police officers can reasonably obtain a
warrant before a blood sample can be drawn without significantly undermining the efficacy
of the search, the Fourth Amendment mandates that they do so.” Id. at 1561. The
McNeely court explained
We do not doubt that some circumstances will make obtaining a warrant impractical such that the dissipation of alcohol from the bloodstream will support an exigency justifying a properly conducted warrantless blood test. That, however, is a reason to decide each case on its facts, as we did in Schmerber, not to accept the ‘considerable overgeneralization’ that a per se rule would reflect.
Id.
Section 724.012 of the Texas Transportation Code states in pertinent part that “[a]
peace officer shall require the taking of a specimen of the person’s breath or blood under
any of the [listed] circumstances if the officer arrests the person for an offense under
Chapter 49, Penal Code, involving the operation of a motor vehicle or a watercraft and
the person refuses the officer’s request to submit to the taking of a specimen voluntarily.”
TEX. TRANSP. CODE ANN. § 724.012 (emphasis added). The applicable subsection states
that an officer must take the person’s blood if “the person was the operator of a motor
8 vehicle or a watercraft involved in an accident that the officer reasonably believes
occurred as a result of the offense and, at the time of the arrest, the officer reasonably
believes that as a direct result of the accident” either “any individual has died or will die,”
“an individual other than the person has suffered serious bodily injury” or “an individual
other than the person has suffered bodily injury and been transported to a hospital or
other medical facility for medical treatment.” Id. § 724.012(b)(1).
III. EXCEPTIONS TO THE WARRANT REQUIREMENT
A. Section 724.011
The State contends that section 724.012 is an exception to the constitutional
warrant requirement. Specifically, the State argues that “[t]he exigent circumstances or
‘special facts’ [as required by McNeely] are carved out in the mandatory blood draw
statute . . . .”
This Court has already determined that the Legislature did not mean to circumvent
the Fourth Amendment’s requirement that the police officer acquire a warrant prior to
acquiring a blood sample after the suspect refuses to provide a specimen regarding
another portion of the mandatory blood draw statute. See State v. Villarreal, No. 13–13–
00253–CR, __ S.W.3d __, __, 2014 WL 1257150, at *11 (Tex. App.—Corpus Christi Jan.
23, 2014, pet. granted). The court of criminal appeals affirmed our decision stating, “the
provisions in the Transportation Code do not, taken by themselves, form a constitutionally
valid alternative to the Fourth Amendment warrant requirement” and “a nonconsensual
search of a DWI suspect’s blood conducted pursuant to the mandatory-blood-draw and
implied-consent provisions in the Transportation Code, when undertaken in the absence
of a warrant or any applicable exception to the warrant requirement, violates the Fourth
9 Amendment.” State v. Villarreal, No. PD–0306–14, 2014 WL 6734178, at **20–21 (Tex.
Crim. App. Nov. 26, 2014, pet. granted).2 Accordingly, we conclude that section 724.012
of the transportation code does not by itself form a constitutionally recognized exception
to the warrant requirement. See id. Instead, under McNeely, each case must be
evaluated on a case-by-case basis. See McNeely, 133 S.Ct. at 1560.
B. Exigent Circumstances
The State argues that it provided evidence that exigent circumstances existed to
obtain appellee’s blood sample because it is imbedded in section 724.012. However, the
State also points to facts in the record it alleges amounted to an exigency in this case.
At trial, the State alleged to the trial court that exigent circumstances existed here stating
the following:
Your Honor, in this case we do have expert circumstances [sic], for example in Schmerber they mentioned that a crash, a child passenger, other complicating factors; such as multiple witnesses, multiple defendants, high number of arrests at the time of the incident, these can all be additional exigency factors that can lead to the conclusion that blood is—
The trial court interrupted the prosecutor and stated, “But the officer didn’t have time to
get a warrant. This officer never tried, never made an attempt.” The State then argued
that the trial court must look at the facts objectively to determine whether the police officer
had enough time to get a warrant and that in this case getting a warrant would have taken
too long. The trial court replied, “That’s all based on some sort of general, what the normal
case is and this sort of thing. The Supreme Court, as I read this case, is saying that that
should be the exception, not the norm, that you need a warrant if you are going to get
2 After affirming our decision, the court of criminal appeals granted the State’s petition for rehearing.
However, it has not vacated its decision affirming our decision.
10 somebody’s blood” and here, “you can’t use general facts to support a specific conclusion
in this particular case.” The trial court then pointed out that in this case, Officer Jordan
did not even attempt to get a warrant “because he was relying on the mandatory statute.
So the State is not going to have anything to support an emergency.” These are the only
arguments the State made to the trial court regarding exigent circumstances. Thus, any
other arguments made on appeal by the State have not been preserved for our review. 3
The State does not explicitly state on appeal that even if section 724.012 does not
provide the required exigency alone, nonetheless, it established, based on the evidence
presented, that an exigency existed. However, the State does point to evidence that
arguably could have supported such a conclusion.4 Thus, we will address the argument
that there was an exigency that excused Officer Jordan from acquiring a warrant.
Exigency is an established exception to the warrant requirement and “applies when
the exigencies of the situation make the needs of law enforcement so compelling that a
warrantless search is objectively reasonable under the Fourth Amendment.” McNeely,
3 In its brief, the State maintains that there are other non-exigency based exceptions to the warrant requirement such as the automobile exception, and voluntary consent and waiver and other consideration such as “the underlying expectation of privacy as a factor” and “the nature of the privacy interest in blood” that “will be sufficient to sustain the constitutionality of [mandatory blood draw statutes], especially the Texas statute, which is narrowly drawn to include only the most egregious offenders and situations.” However, although the State argued that the McNeely decision is very narrow, the State did not make any of the above-mentioned arguments to the trial court. Accordingly, we may not reverse the trial court on any of these grounds. See State v. Rhinehart, 333 S.W.3d 154, 162 (Tex. Crim. App. 2011) (stating, “ordinary rules of procedural default” apply to “losing party” in trial court); Hailey v. State, 87 S.W.3d 118, 121–22 (Tex. Crim. App. 2002) (“It is well-settled that . . . it violates ordinary notions of procedural default for a Court of Appeals to reverse a trial court’s decision on a legal theory not presented to the trial court by the complaining party.”) (quotations omitted); State v. Mercado, 972 S.W.2d 75, 78 (Tex. Crim. App. 1998) (en banc) (“[I]n cases in which the State is the party appealing, the basic principle of appellate jurisprudence that points not argued at trial are deemed to be waived applies equally to the State and the defense.”); see also Martinez v. State, 91 S.W.3d 331, 336 (Tex. Crim. App. 2002) (“And so it is that appellate courts may uphold a trial court’s ruling on any legal theory or basis applicable to the case, but usually may not reverse a trial court’s ruling on any theory or basis that might have been applicable to the case, but was not raised.”). 4 At oral argument, the State argued that it established that exigent circumstances existed.
11 133 S.Ct. at 1558 (quoting Kentucky v. King, __ U.S. __, __, 131 S.Ct. 1849, 1856
(2011)). We must look to the totality of the circumstances in determining if the warrantless
search was permissible due to an exigency. Id. at 1559. We agree with Dounds v. State
that “in order to establish a plausible justification for an exigent circumstances exception
to the warrant requirement, the State had the burden to show facts and circumstances
beyond the passage of time and the resulting dissipation of alcohol in the bloodstream.”
434 S.W.3d 842, 851 (Tex. App.—Houston [14th Dist.] 2014, pet. granted).
Here, the trial court specifically found that Officer Jordan said he did not rely on
any emergency or exigency to obtain appellee’s blood sample and instead Officer Jordan
only relied on section 724.012 to obtain appellee’s blood sample. We must give this
historical fact finding almost total deference because as further explained below, it is
supported by the record. See Amador, 221 S.W.3d at 673. Thus, similar to Villarreal, the
trial court found that Officer Jordan’s only basis for drawing appellee’s blood without first
obtaining a warrant was that section 724.012 required him to take a blood sample without
appellee’s consent and without the necessity of getting a warrant. See Villarreal, 2014
WL 1257150, at *11.
This finding is supported by the record. At the suppression hearing, Officer Jordan
continuously claimed that his sole basis for the warrantless blood draw was section
724.012. On cross-examination by appellee’s trial counsel the following exchange
occurred:
Defense Counsel: All right. So the urgency then was for clearing the scene as opposed to anything else?
Officer Jordan: No. It was for making sure everybody was treated and clearing the scene. Making sure the people who
12 needed to go to the hospital went to the hospital and then clearing the intersection.
Defense Counsel: So, were those two urgencies, clearing the intersection and making sure everybody who needed treatment got treatment?
Officer Jordan: That’s right.
Defense Counsel: Was there any urgency regarding the obtaining of a warrant?
Officer Jordan: Not at that time.
Defense Counsel: Well, when you say not at that time, did it ever become a time when there was some urgency about obtaining a warrant?
Officer Jordan: A blood warrant?
Defense Counsel: Yes, sir.
Officer Jordan: No.
Defense Counsel: Was a blood warrant ever discussed?
Officer Jordan: No, it was not.
Defense Counsel: Had it been discussed, was there enough people there to accomplish getting a blood warrant?
Officer Jordan: I’m not sure.
Later in his testimony, Officer Jordan said, “[T]he warrant never came up.”
Defense counsel asked, “There was never any discussion with [his superior] Lieutenant
McClure, listen, we should get a warrant but we don’t have enough time.” Officer Jordan
replied, “Right” and agreed “That never happened.” The evidence showed that Officer
Jordan did not attempt to acquire a warrant, and although officers who were present at
the scene had informed Officer Jordan that appellee may have been intoxicated, there
was no evidence that anyone attempted to acquire a warrant.
13 In addition, Officer Jordan testified that he did not transport appellee to the hospital.
Given that Officer Jordan stated that he was not concerned with obtaining a warrant and
that the evidence showed that he did not transport appellee to the hospital, we conclude
that the trial court’s finding is supported by the evidence. Moreover, the United States
Supreme Court has stated that if an officer can take steps to secure a warrant while the
suspect is being transported to a hospital by another officer, there would be no plausible
justification for an exception to the warrant requirement. McNeely, 133 S.Ct. at 1561.
Here, there is no evidence that Officer Jordan could not have taken steps to obtain a
warrant because he never even considered obtaining one.5 See Weems v. State, 434
S.W.3d 655, 666 (Tex. App.—San Antonio 2014, pet. granted) (finding no exigency
despite evidence that there had been an accident, the passenger had been injured, and
the defendant had been transported to the hospital and noting that the officer had made
no effort to obtain a warrant). Accordingly, we conclude that the trial court did not abuse
its discretion by concluding that the State failed to establish that an exigency existed.6
We overrule the State’s issue to the extent that it argues an exigency existed in this case.
C. Section 724.011’s Implied Consent
5 To the extent that the State may argue that Officer Doug McDonald’s testimony supports that exigent circumstances existed in this case, we disagree because Officer McDonald stated he had no knowledge whether the issue of acquiring a warrant was ever discussed and that “he did not handle any part of the DWI investigation” and was “strictly [assigned] to the traffic accident.” Thus, he had no knowledge regarding whether Officer Jordan could have taken steps to obtain a warrant, and Officer Jordan did not testify that he could not have taken those steps. To the extent that the State relies on Officer Gary Williams’s testimony, he agreed that he had nothing to do with this particular case and that he did not know anything about it. 6 At oral argument, the State argued that Officer Jordan did not possess probable cause to obtain a warrant at the scene of the accident even though other police officers told him appellee may have been intoxicated. However, at the suppression hearing, the State made no such argument.
14 Citing section 724.011 of the Texas Transportation Code, the State argues that
pursuant to “the implied consent statute,” a person is deemed to have consented to the
taking of one or more specimens of the person’s blood for analysis to determine its alcohol
content if that person is intoxicated and “is arrested for an offense arising out of acts
alleged to have been committed while the person was operating a motor vehicle in a
public place.” See TEX. TRANSP. CODE ANN. § 724.011 (West, Westlaw through 2013 3d
C.S.). The State asserts that anyone who operates a motor vehicle has impliedly
consented to a blood draw.
Regarding implied consent, at the suppression hearing, the prosecutor stated:
Consent can be either [explicit] or implied. In this case, we did develop some testimony, I believe from Officer Jordan, that he specifically asked for consent and nothing was said. He instructed the nurse to go ahead and take a blood sample, there was no indication that Mr.—the defendant in this case, the suspect, refused or in anyway state[d] he refused to consent. Apparently I don’t know if he stuck his arm out and allowed his arm to be punctured and a blood sample be taken. So we, you know, we would argue that’s an implied consent.
....
I think if you are going to look at whether consent occurred or not, Judge, you have to look at what a reasonable person under the circumstances would have understood and would of [sic] done. He was asked to give consent,[7] he stood there mute and allowed a blood sample to be taken. Would a reasonable person have said no? Would a reasonable person have started to take the blood or started to attempt to swab his arm down, which would have been normal; would he have pulled back, and said no, I haven’t given consent or I refuse consent?
Aside from that, assuming that consent was not affirmative to be given, which we think it may be a fact question. I just—if I may, I would like
7We note that Officer Jordan testified that he did not ask for consent for the blood draw because he was relying on section 724.012, which he believed mandates a blood draw when the suspect has been arrested for suspicion of driving while intoxicated and been involved in an accident where someone has suffered an injury. See TEX. TRANSP. CODE ANN. § 724.012 (West, Westlaw through 2013 3d C.S.). It appears from our review of the record that Officer Jordan believed that he could order the blood draw without asking for consent and without obtaining appellee’s refusal to provide a specimen.
15 to say I think they are also presuming a terrible situation here where they want to say there is a third option; which is simply to stand mute and neither consent nor refuse, in which case the statute doesn’t allow, according to them, the statute doesn’t allow you to take the draw at all.
Thus, the State’s argument at the suppression hearing was that appellee’s silence,
among other things, amounted to implied consent. The trial court concluded that there
was no consent and stated, “I think there has to be some sort of affirmative consent to
say that somebody consented in that situation. So I would find that there is no consent.”
At the suppression hearing, the State neither mentioned the implied consent
statute it cites on appeal nor argued that appellee impliedly consented to the warrantless
blood draw by driving on the roadway or obtaining a driver’s license as it now argues.
Thus, to the extent that the State now makes this argument, we conclude that it does not
comport with its argument to the trial court. See Bell v. State, 938 S.W.2d 35, 54 (Tex.
Crim. App. 1996) (explaining that the grounds raised on appeal must comport with the
objections made before the trial court). Moreover, we cannot reverse the trial court’s
judgment on grounds not presented to it. See State v. Rhinehart, 333 S.W.3d 154, 162
(Tex. Crim. App. 2011) (stating that “ordinary rules of procedural default” apply to “losing
party” in trial court); Hailey v. State, 87 S.W.3d 118, 121–22 (Tex. Crim. App. 2002) (“It is
well-settled that . . . it violates ordinary notions of procedural default for a Court of Appeals
to reverse a trial court’s decision on a legal theory not presented to the trial court by the
complaining party.”) (quotations omitted); State v. Mercado, 972 S.W.2d 75, 78 (Tex.
Crim. App. 1998) (en banc) (“[I]n cases in which the State is the party appealing, the basic
principle of appellate jurisprudence that points not argued at trial are deemed to be waived
applies equally to the State and the defense.”). Thus, we overrule the State’s issue to the
16 extent that it argues that “the implied consent statute” required that the trial court deny
appellee’s motion to suppress.
The State further argues in addressing the implied consent statute that appellee
“remained mute during the reading of [a license suspension warning] and allowed the
taking of his blood. Officer Jordan testified that no struggle ensued, no words were
exchanged, and [appellee] offered his arm.”8 However, the State neither cites to
appropriate authority nor provides any legal analysis concerning how these facts required
the trial court to deny appellee’s motion to suppress because implied consent served as
an exception to the warrant requirement. See TEX. R. APP. P. 38.1(i). Thus, to the extent
that the State attempted to argue that appellee impliedly consented and that his implied
consent served as an exception to the warrant requirement, we conclude that this
argument is inadequately briefed.9 See id. Accordingly, we overrule the State’s first issue
to the extent that it argues that the trial court should have denied appellee’s motion to
suppress on the basis that appellee remained mute and “allowed” the taking of his blood
sample.
D. Refusal
As previously stated, once appellee established that his blood sample was
obtained without a warrant, the burden shifted to the State to prove that an exception to
8Although on direct examination by the State, Officer Jordan agreed that appellee offered his arm, on cross-examination by defense counsel, Officer Jordan said that appellee “didn’t physically go like, here you go” by offering his arm and Officer Jordan did not recall whether appellee moved his arm at all. 9 When asked by appellee’s trial counsel, “Did he consent to a specimen,” Officer Jordan replied, “No, he didn’t. . . . That’s right. He didn’t consent.” When asked, “All right. We are clear on that, he did not consent . . . . And he didn’t refuse,” Officer Jordan said, “That’s right.” Officer Jordan agreed that “consent or refusal” were not “an issue in [his] mind.” Later during his testimony Officer Jordan stated that the blood draw “was mandatory, I didn’t give him a chance to agree.”
17 the warrant requirement existed; here the State alleged that section 724.012 provided
that exception. See Gutierrez, 221 S.W.3d at 685. At the suppression hearing, the State
invoked section 724.012 as an exception to the warrant requirement and argued that
Officer Jordan properly ordered the blood draw pursuant to that statute. Although we
have already determined that section 724.012 is not by itself an exception to the warrant
requirement, as has the court of criminal appeals, even assuming it is, we conclude that
the trial court properly granted the motion to suppress as explained below on the basis
that Officer Jordan failed to comply with section 724.012; thus, the State could not have
established that it applied in this case.
At the suppression hearing, Officer Jordan admitted that he had not asked for
appellee’s permission to take the blood draw and that appellee had not consented or
refused to provide a specimen. The prosecutor stated, “there was no indication that Mr.—
the defendant in this case, the suspect, refused or in anyway state[d] he refused to
consent,” and “I think they are also presuming a terrible situation here where they want
to say there is a third option; which is simply to stand mute and neither consent nor
refuse. . . .” Thus, the State conceded and acknowledged to the trial court that appellee
never refused to give a specimen to Officer Jordan. In response to the State’s argument
that appellee consented to the blood draw, appellee’s trial counsel said, “And we certainly
have no refusal if that were the case. . . .” The fact that Officer Jordan did not acquire
appellee’s refusal prior to taking the blood draw is undisputed, and the only evidence
presented by the State establishes that there was no refusal to provide a specimen.
Section 724.012 requires that “the person refuses the officer’s request to submit
to the taking of a specimen voluntarily” prior to the mandatory blood draw. TEX. TRANSP.
18 CODE ANN. § 724.012 (emphasis added). Therefore, as a matter of law, Officer Jordan
did not properly acquire appellee’s blood sample pursuant to section 724.012.
Accordingly, the trial court did not abuse its discretion by granting appellee’s motion to
suppress. See Alford, 400 S.W.3d at 929 (“Even if the trial court had limited its conclusion
of law to a particular legal theory, an appellate court would not be required to defer to that
theory under its de novo review.”); Armendariz, 123 S.W.3d 401 at 403 (holding that this
“rule holds true even if the trial court gave the wrong reason for its ruling.”). We overrule
the State’s sole issue.
IV. CONCLUSION
We affirm the trial court’s judgment.
/s/ Rogelio Valdez__ ROGELIO VALDEZ Chief Justice
Do not publish. TEX. R. APP. P. 47.2(b).
Delivered and filed the 18th day of June, 2015.