          IN THE COURT OF CRIMINAL APPEALS
                      OF TEXAS
                                      NO. PD-0306-14



                                 THE STATE OF TEXAS

                                              v.

                            DAVID VILLARREAL, Appellee



                    ON STATE’S MOTION FOR REHEARING
                 AFTER OPINION ON DISCRETIONARY REVIEW
                 FROM THE THIRTEENTH COURT OF APPEALS
                             NUECES COUNTY

              M EYERS, J., filed a concurring opinion.

    OPINION CONCURRING TO THE DENIAL OF STATE’S MOTION FOR
                         REHEARING

       In the original opinion in this case, I had authored a dissent indicating that I thought

the Legislature had created an exception to the warrant requirement with Texas

Transportation Code Section 724.012(b)(3)(B). While I do believe that is what the

Legislature did in other sections of the mandatory-blood-draw statute, I no longer think that

is what happened with the specific section we are examining, related to prior intoxication-
                                                                Villarreal concurrence - Page 2

offense convictions.

       All the Legislature did in Section 724.012(b)(3)(B) was establish the criteria that it

felt indicated that an individual was giving implied consent to or waiving his right to object

to a warrantless blood draw. I now do not believe that the criteria outlined in the statute–two

prior convictions of an intoxication offense–is sufficient to establish that there was a waiver

or consent, absent any additional evidence showing the individual’s consent to this particular

blood draw.

       When a defendant pleads guilty, we have well-established criteria and admonishments

that the court must make in order for the defendant’s waiver of a jury trial to be considered

knowing and voluntary. It should not be different in such a significant way when an

individual is waiving his right to refuse a bodily search or blood draw. Both are basic

constitutional rights.

       My analysis today differs somewhat from the original majority opinion in this case,

which indicated that “a statute providing for irrevocable implied consent cannot supply the

type of voluntary consent necessary to establish an exception to the Fourth Amendment

requirement.” I would point out that, unlike some of the cases the original majority

examined, here, the Legislature provided for additional criteria that must exist before the

blood draw is required. It is not a blanket provision that mandates blood draws be done

across the board, on the sole basis that an individual was driving on the Texas roadways.

Regardless, however, it is still not permissible for the statute to provide for an individual’s
                                                              Villarreal concurrence - Page 3

knowing consent or waiver based only on past convictions. You cannot make the

presumption that a past intoxication offense indicates consent to an unwarranted blood draw.

       For the foregoing reasons, I join the Court’s opinion denying the State’s motion for

rehearing.

                                                        Meyers, J.

Filed: December 16, 2015

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