                                       In The

                                 Court of Appeals

                     Ninth District of Texas at Beaumont
                           ____________________

                               NO. 09-13-00401-CR
                            ____________________

                      DAVID WEST GAUBATZ, Appellant

                                          V.

                       THE STATE OF TEXAS, Appellee

_______________________________________________________              ______________

                    On Appeal from the 253rd District Court
                           Liberty County, Texas
                          Trial Cause No. CR29957
________________________________________________________              _____________

                           MEMORANDUM OPINION

      David West Gaubatz, appellant, was indicted for the offense of driving while

intoxicated, third or more. See Tex. Penal Code Ann. §§ 12.42, 49.09 (West Supp.

2014). 1 Prior to trial, Gaubatz filed a motion to suppress the blood test results from

blood taken without a warrant and without his permission. He asserted that the

blood draw was an unreasonable search and seizure in violation of the Fourth

      1
     In this opinion we cite to the current version of the statutes as the
amendments to the statutes do not apply to this appeal.
                                          1
Amendment to the United States Constitution and article 1, section 9 of the Texas

Constitution. After a hearing, the trial court denied the motion to suppress.

Gaubatz entered a guilty plea. There was no agreement as to punishment, and after

obtaining a pre-sentence report, the trial court held a sentencing hearing. The court

found Gaubatz guilty of the third-degree felony offense of driving while

intoxicated, third or more, and sentenced him to six years in the Texas Department

of Criminal Justice-Institutional Division. Gaubatz filed a notice of appeal.

        In three issues on appeal, Gaubatz argues that (1) “there was no probable

cause” for the Trooper to “stop and remov[e] [Gaubatz] from the vehicle[,]” (2)

that the motion to suppress the blood test results should have been granted, and (3)

that the mandatory draw or implied consent statute violates the Fourth Amendment

to the United States Constitution. We conclude that there was probable cause to

stop and detain Gaubatz, and the mandatory draw or implied consent statute does

not on its face violate the Fourth Amendment. Nevertheless, we further conclude

that the trial court erred in failing to suppress the evidence because the State failed

to meet its burden to establish an exception to the warrantless blood draw in this

case.




                                          2
                         HEARING ON MOTION TO SUPPRESS

      A Texas State Trooper, Boyd Lamb, Jr., testified on behalf of the State at the

motion to suppress hearing.2 According to the Trooper, on or about midnight on

August 19, 2012, while on routine patrol, the Trooper noticed a vehicle headed

northbound on Highway 59 in Liberty County, Texas. The Trooper pulled up along

the side of the vehicle and noticed that the passenger in the backseat was leaning

forward all the way to the front seat and he was not wearing a seatbelt. Gaubatz

was driving and Trooper Lamb also observed two adult passengers in the vehicle, a

female seated in the front passenger seat and a male seated in the backseat.

      The Trooper testified that although when he followed behind Gaubatz he did

not notice any signs of erratic driving, he proceeded to initiate a traffic stop of the

vehicle because the passenger in the backseat was not wearing a seatbelt. The

Trooper testified,

      Due to the fact that there [were] 18-wheelers exiting, I had [Gaubatz]
      step to the rear of the vehicle and [I] made contact with him at the rear
      of the vehicle and ask[ed] him where he was going to. And Mr.
      Gaubatz was very frantic, almost to the point of being emotional,
      telling me he was trying to help somebody out. And he repeated over
      and over and over again trying to take somebody to get them out of
      his life.



      2
        Two other law enforcement officers assisted Trooper Lamb after he had
initiated the traffic stop, but the officers did not testify at the suppression hearing.
                                           3
      The Trooper further explained at the hearing that Gaubatz was “very nervous

in his emotional state[,]” and there was a “very strong alcoholic odor emitting from

[Gaubatz’s] breath as he would talk” and when asked whether he had been

drinking alcohol, Gaubatz initially admitted “he had consumed one beer prior to

leaving Cypress.” The Trooper testified that after alcohol was discovered in the

vehicle, Gaubatz stated “that he had taken a couple of drinks of the whiskey” that

the Trooper found in the center console between the front driver’s seat and

passenger’s seat.

      Law enforcement also found an open container of alcohol in the rear

floorboard of the vehicle. The backseat passenger admitted he was not wearing his

seatbelt but claimed he was trying to give Gaubatz directions so Gaubatz could

take him to a truck-stop. The Trooper also spoke to the female passenger who

initially made a statement that she had been assaulted and the Trooper had her get

out of the vehicle. At that time, the Trooper observed she was “extremely

inebriated” and she told the officer she had to go to the bathroom and the Trooper

could “barely understand[]” what she was saying. When the Trooper turned to

walk back to his vehicle, the female passenger “actually . . . urinated on the side of

the road.” Due to a need to identify the two passengers and to assess the situation




                                          4
regarding the assault allegations, it was approximately twenty-nine minutes after

the initial stop before the Trooper conducted any field sobriety tests on Gaubatz.

      The Trooper administered the horizontal gaze nystagmus (HGN), the walk

and turn, and the one-leg stand field sobriety tests on Gaubatz. Prior to

administering the HGN test, Trooper Lamb observed that Gaubatz had “very

watery, bloodshot eyes[]. And some other signs of impairment were the strong

odor of the alcoholic beverage, slightly slurred speech, and he admitted to drinking

alcoholic beverages, and open containers in the vehicle.” Additionally, the Trooper

explained that “during the investigation, [of] the other DWI, Mr. Gaubatz kept

begging me to let him go to the gas station to rest or to -- you know, basically

indicated to me he didn’t think he should be driving either[.]”

      Upon completion of the HGN test, the Trooper observed six out of six clues

indicating that Gaubatz was intoxicated. And, on the “walk and turn” test, Trooper

Lamb observed that Gaubatz had seven out of eight clues indicating intoxication.

Furthermore, Gaubatz exhibited three of the four clues indicating intoxication on

the one-leg stand test. The Trooper also administered a “preliminary breath test”

which he described as “basically a field test to detect alcohol on a person’s breath,”

and the test indicated Gaubatz’s blood alcohol content was .241, which would be




                                          5
three times the legal limit. 3 The Trooper arrested Gaubatz for driving while

intoxicated. And, he confirmed through his “in-car computer” that Gaubatz had

prior convictions for DWI.

      The Trooper gave Gaubatz the DIC-24 warning and explained that he would

be asking Gaubatz for a voluntary sample. Initially, Gaubatz consented to an

intoxilyzer breath test. After being transported to the Liberty County Sheriff’s

Department Cleveland Annex, which was about a ten-minute drive from the

location of the traffic stop, Gaubatz withdrew his consent for the breath test. The

Trooper then transported Gaubatz to the Cleveland Regional Hospital, which was

approximately another ten minutes from the Cleveland Annex, and the Trooper had

the hospital personnel take a blood draw from Gaubatz. The Trooper testified that

he proceeded with the blood draw pursuant to Transportation Code 724.012(b), and

that the blood was drawn approximately one hour and fifty minutes after the traffic

stop. The analysis of the blood showed .254 grams of alcohol per 100 milliliters of

blood. The Trooper testified that he did not attempt to secure a warrant because of

the “amount of time that had already passed” and due to the difficulty he would



      3
       Gaubatz objected to the testimony regarding the result of the preliminary
breath test on the basis that the test is “not scientifically accepted within the
community.” The trial court overruled the objection for the purpose of the
suppression hearing.
                                        6
have to secure a warrant. The trial court dictated its findings and conclusions into

the record.

             THE COURT: . . . The -- the evidence suggests that -- and the
      Court finds that there were no exigent circumstances that the officer
      relied on or, frankly, that he could rely on, unless I’m incorrect in my
      notes. A little handheld breathalyzer showed a .241 and at .02 an hour,
      this guy had been drunk for hours on end. He had -- this is one case
      where he had plenty of time to go get a blood search warrant from a
      court. But I do find that the trooper properly relied on the statute. So
      the question is: Is the statute regarding implied consent for a
      mandatory blood draw, is it constitutional? At this point, the courts in
      Texas have said it’s constitutional and the officer was following
      proper procedure. And I’m going to deny your -- your Motion to
      Suppress. Of course, you have your appeal.

              [DEFENSE ATTORNEY]: Yes, Your Honor.

            THE COURT: And you can take it up, and then if, you know,
      you go beyond the Court of Criminal Appeals, more power to you,
      and we’ll get a final decision some years from now and we’ll know.
             All right. That’s the ruling of the Court. If y’all would get an
      order denying the -- the Motion to Suppress.

The trial court signed an order denying the motion to suppress.

                    REASONABLE BASIS FOR STOP OR DETENTION

      In his first issue Gaubatz argues there was no probable cause to stop and

remove him from his vehicle. An officer may, without probable cause, stop and

detain a citizen for a traffic violation for investigatory purposes. See Terry v. Ohio,

392 U.S. 1, 30 (1968). A valid temporary detention must be reasonable. Id. at 19-

20. There are two components for determining whether a Terry stop is justified. Id.
                                          7
First, a court must determine “whether the officer’s action [in detaining a person]

was justified at its inception”; second, the court must determine whether the

detention “was reasonably related in scope to the circumstances [that] justified the

interference in the first place.” Id.; see also Kothe v. State, 152 S.W.3d 54, 63

(Tex. Crim. App. 2004). If an officer has a reasonable basis for suspecting a person

has committed a traffic violation, he may legally initiate a traffic stop. Garcia v.

State, 827 S.W.2d 937, 944 (Tex. Crim. App. 1992); State v. McCall, 929 S.W.2d

601, 603 (Tex. App.—San Antonio 1996, no pet.). “In deciding whether the scope

of a Terry detention is ‘reasonable,’ the general rule is that an investigative stop

can last no longer than necessary to effect the purpose of the stop.” Kothe, 152

S.W.3d at 63.

      A person commits a seatbelt violation if the person is at least fifteen years of

age; is riding in a passenger vehicle while the vehicle is being operated; is

occupying a seat that is equipped with a safety belt; and is not secured by a safety

belt. See Tex. Transp. Code Ann. § 545.413 (West Supp. 2014). A violation of the

vehicle safety laws is sufficient authority for an officer to stop a vehicle. Armitage

v. State, 637 S.W.2d 936, 939 (Tex. Crim. App. 1982). It was not necessary for

Trooper Lamb to show that the passenger was not actually wearing a seatbelt, but




                                          8
simply that the Trooper reasonably believed that the passenger was not wearing a

seatbelt. See Drago v. State, 553 S.W.2d 375, 377-78 (Tex. Crim. App. 1977).

      The evidence in the record indicates that Trooper Lamb personally observed

that the passenger riding in the backseat of Gaubatz’s vehicle was leaning forward

and it appeared he was not wearing a seatbelt in violation of Texas Transportation

Code section 545.413. Trooper Lamb therefore had a reasonable basis to stop the

vehicle. Furthermore, even though the initial stop was unrelated to the driving-

while-intoxicated charge, an officer may investigate the occurrence of another

offense while investigating the circumstances of the initial suspected violation. See

Armitage, 637 S.W.2d at 939. The trial court could have reasonably determined

that Trooper Lamb’s testimony was credible and that the seatbelt violation

warranted a continued detention and questioning of the driver.

      Once the vehicle was stopped, Trooper Lamb asked Gaubatz to exit the

vehicle and step to the rear of the vehicle. At that time, Gaubatz “seemed to be

very nervous in his emotional state.” There was a “very strong alcoholic odor

emitting from [Gaubatz’s] breath as he would talk.” Further, Gaubatz admitted he

consumed alcoholic beverages, and, according to the Trooper, Gaubatz stated that

“he had consumed one beer” and “that he had taken a couple of drinks of the

whiskey that . . . was found there in the center console between him and the front

                                         9
seat female passenger.” The totality of the circumstances surrounding the stop, as

well as the admissions made by the driver and the passengers, and the physical

evidence recovered within reach of the driver inside the vehicle, provided a

reasonable basis for the Trooper to detain Gaubatz. We overrule the first issue.

                        DENIAL OF THE MOTION TO SUPPRESS

      In his second issue, Gaubatz asserts the trial court erred in denying the

motion to suppress the blood test results because of the Supreme Court’s recent

ruling in Missouri v. McNeely, 133 S.Ct. 1552 (2013). We review a trial court’s

ruling on a motion to suppress under a bifurcated standard of review. Turrubiate v.

State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2013). We review the trial court’s

factual findings for an abuse of discretion. Id. We give almost total deference to the

trial court’s determination of historical facts, particularly when the trial court’s fact

findings are based on an evaluation of credibility and demeanor. Crain v. State,

315 S.W.3d 43, 48 (Tex. Crim. App. 2010). The same deference is afforded the

trial court with respect to its rulings on the application of the law to questions of

fact and to mixed questions of law and fact, if resolution of those questions

depends on an evaluation of credibility and demeanor. Id. For mixed questions of

law and fact that do not fall within that category, a reviewing court conducts a de

novo review. Id.

                                           10
      At a suppression hearing, the trial court is the exclusive trier of fact and

judge of the credibility of the witnesses. Maxwell v. State, 73 S.W.3d 278, 281

(Tex. Crim. App. 2002). A trial court may choose to believe or to disbelieve all or

any part of a witness’s testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim.

App. 2000). We must uphold the trial court’s ruling on a motion to suppress if that

ruling was supported by the record and was correct under any theory of law

applicable to the case, even if the trial court gave the wrong reason for its ruling.

Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App. 2003), cert. denied,

541 U.S. 974 (2004).

      Recently, this court issued its opinion in State v. Anderson, wherein we

discussed the “totality of the circumstances” approach to warrantless searches as

mandated and applied by the Supreme Court in Missouri v. McNeely. No. 09-13-

00400-CR, 2014 Tex. App. LEXIS 11151, at *12 (Tex. App.—Beaumont Oct. 8,

2014, no pet. h.). As we stated in Anderson,

             “In the absence of a warrant, a search is reasonable only
             if it falls within a specific exception to the warrant
             requirement.” Riley v. California, 134 S.Ct. 2473, 2482
             (2014) (citing Kentucky v. King, 131 S.Ct. 1849, 1856-57
             (2011)). “The exceptions to the rule that a search must
             rest upon a search warrant have been jealously and
             carefully drawn . . . .” Jones v. United States, 357 U.S.
             493, 499 (1958). “Even if a warrant is not required, a
             search is not beyond Fourth Amendment scrutiny; for it
             must be reasonable in its scope and manner of
                                         11
             execution.” Maryland v. King, 133 S.Ct. 1958, 1970
             (2013).

See id. at *11.

      The Court of Criminal Appeals has stated that the exceptions to the

requirement of a search warrant include “voluntary consent to search, search under

exigent circumstances, and search incident to arrest[.]” McGee v. State, 105

S.W.3d 609, 615 (Tex. Crim. App. 2003). Once the accused establishes that the

search was conducted without a warrant, it is the State’s burden to show that the

warrantless search falls within one of these exceptions. See id. Because there was

no search warrant for the blood draw performed on Gaubatz, the State had the

burden of proof to establish an exception to justify the warrantless search and

seizure of his blood. See id. On appeal, the State argues the implied consent and

mandatory blood draw provision within the Texas Transportation Code constitutes

statutory justification for the warrantless blood draw.

      The indictment in this case alleges that Gaubatz was operating a motor

vehicle in a public place, while intoxicated, and that he had three prior DWI

offenses. These allegations would satisfy the provision contained in section

724.012(b)(3). See Tex. Transp. Code Ann. § 724.012(b)(3) (West 2011).

Accordingly, once the Trooper arrested Gaubatz for DWI and received reliable


                                         12
information indicating that Gaubatz had at least two prior DWI offenses, the statute

required the officer to obtain a breath or blood sample.

      The State argues that because the statute required the officer to obtain a

breath or blood sample, it creates justification for the warrantless blood draw.

However, as we have previously stated in Anderson,

                    Simply because the statute requires the taking of a
             specimen of the person’s breath or blood, however, does
             not end our inquiry. “Where a search is undertaken by
             law enforcement officials to discover evidence of
             criminal wrong doing . . . reasonableness generally
             requires the obtaining of a judicial warrant[.]” Vernonia
             Sch. Dist. 47J v. Acton, 515 U.S. 646, 652-53 (1995). “In
             the absence of a warrant, a search is reasonable only if it
             falls within a specific [recognized] exception to the
             warrant requirement.” Riley, 189 L.Ed.2d at 439. There is
             no language in section 724.012(b) that authorizes a police
             officer to take the specimen without a warrant. See
             McGruder v. State, No. 10-13-00109-CR, 2014 Tex.
             App. LEXIS 9022, at *7 (Tex. App.—Waco Aug. 14,
             2014, no pet. h.) (mem. op.).

2014 Tex. App. LEXIS, at *23.

      For the reasons stated in Anderson, we conclude that section 724.012(b)

does not constitute a per se exception to the Fourth Amendment’s warrant

requirements. Additionally, as we previously stated, McNeely reminds us that each

case must be examined on a “case-by-case” basis, under a “totality of the

circumstances” standard. McNeely, 133 S.Ct. at 1556, 1560-61. Furthermore, “[i]n

                                         13
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.” McNeely,

133 S.Ct. at 1561. We agree with the trial court that the statute is, on its face,

constitutional and “[w]e have no reason to fault the constitutionality of the

mandatory blood draw statute in this case because it did not require [the officer] to

obtain a blood draw without first securing a warrant.” McGruder, No. 10-13-

00109-CR, 2014 Tex. App. LEXIS 9022, at *8 (Tex. App.—Waco Aug. 14, 2014,

no pet.); Douds v. State, 434 S.W.3d 842, 859-61 (Tex. App.—Houston [14th

Dist.] June 5, 2014, pet. granted) (op. on reh’g).

                             EXIGENT CIRCUMSTANCES

      On appeal, the State does not argue that there were exigent circumstances

that justified the warrantless blood draw. Furthermore, the trial court expressly

found that there were no exigent circumstances. Accordingly, it is unnecessary for

us to reach the question of exigency on appeal. Because the State has failed to

establish any recognized exception to the warrantless blood draw, we conclude that

the trial court erred in denying the motion to suppress. Therefore, we must reverse

and remand this matter for a new trial.

      REVERSED AND REMANDED.

                                          14
                                               ________________________
                                                   LEANNE JOHNSON
                                                         Justice


Submitted on April 22, 2014
Opinion Delivered October 29, 2014
Do Not Publish

Before Kreger, Horton, and Johnson, JJ.




                                          15
