                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-13-00560-CR


GENE ALLEN BURKS                                                APPELLANT

                                     V.

THE STATE OF TEXAS                                                    STATE


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        FROM THE 372ND DISTRICT COURT OF TARRANT COUNTY
                    TRIAL COURT NO. 1302810D

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                                 OPINION

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                              I. INTRODUCTION

     Appellant Gene Allen Burks appeals his conviction for driving while

intoxicated (DWI)–felony repetition. See Tex. Penal Code Ann. §§ 49.04, .09

(West Supp. 2014). In a single point, he argues that the trial court erred by

denying his motion to suppress blood alcohol test results obtained using the

mandatory-blood-draw procedure of the Texas Transportation Code and without
his consent or a valid search warrant.        See Tex. Transp. Code Ann. §§

724.011(a), 724.012(b), 724.013 (West 2011). Following the court of criminal

appeals’s recent opinion in State v. Villarreal, No. PD-0306-14, 2014 WL

6734178 (Tex. Crim. App. Nov. 26, 2014), in which the court held that such a

warrantless, nonconsensual draw of a DWI suspect’s blood does not

categorically fall within any recognized exception to the Fourth Amendment’s

warrant requirement, nor can it be justified under a general Fourth Amendment

balancing test, we will reverse the trial court’s suppression order and judgment

and remand the case to the trial court.

                   II. FACTUAL AND PROCEDURAL BACKGROUND

      Burks was indicted for felony DWI. He filed a “Motion to Suppress Blood

Alcohol Test Results Obtained Without Consent or Valid Search Warrant.” Prior

to a hearing on Burks’s motion, the parties agreed to stipulate to the evidence for

purposes of the hearing as follows:

   1. On October 31, 2012, around 8:59 p.m., North Richland Hills Police
      Officer Kevin Croft #767 possessed reasonable suspicion and
      probable cause to initiate a traffic stop of the Defendant’s motor
      vehicle which was being operated by the Defendant in Tarrant
      County, Texas in a public place. Officer Croft executed this stop
      based upon information relayed to North Richland Hills PD dispatch
      by a credible 911 caller, Philip Hare. Officer Croft also based the
      stop upon his personal observation of the Defendant’s vehicle
      changing lanes without signaling as required under Section 545.104
      of the Texas Transportation Code.

   2. On October 31, 2012, Officer Kevin Croft had probable cause to
      arrest the Defendant for Driving While Intoxicated [DWI] under
      Chapter 49, Texas Penal Code. The officer reasonably believed that
      the Defendant committed the offense of DWI based upon: the


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   information gleaned from the 911 caller; the Defendant’s physical
   appearance which was consistent with having imbibed alcohol; the
   Defendant’s admission to drinking alcohol; and the Defendant’s poor
   performance on field sobriety tests. Officer Croft arrested the
   Defendant, without warrant, at approximately 9:19 p.m.

3. Prior to the Defendant’s arrest, the Defendant told Officer Croft he
   had consumed two beers; after the Defendant’s arrest, at
   approximately 10:35 p.m. and after having been properly Mirandized
   and agreeing to waive his Miranda rights and answer questions, the
   Defendant told Officer Croft that he drank four or five beers. The
   Defendant exclaimed to Officer Croft that he had not been that
   intoxicated in a long, long time.

4. Officer Croft read the Defendant the DIC-24 Statutory Warning at
   approximately 10:09 p.m. and requested a specimen of the
   Defendant’s blood. The Defendant refused to provide a specimen of
   his blood voluntarily.

5. The requirements set forth in Texas Transportation Code Section
   724.012 to obtain a mandatory blood sample from the Defendant
   were met. Specifically, (1) that Officer Croft had reasonable grounds
   to believe that the Defendant operated a motor vehicle in a public
   place while intoxicated, (2) the Defendant refused Officer Croft’s
   request to submit to the taking of a specimen voluntarily, and (3) at
   the time of the arrest, Officer Croft possessed or received reliable
   information from a credible source that the Defendant on two or
   more occasions had been previously convicted or placed on
   community supervision for an offense under Section 49.04, 49.05,
   49.06, or 49.06 [sic].

6. The Defendant’s blood draw was conducted around 10:10 p.m.
   using medically-accepted procedures. Philip Fabian, a registered
   professional nurse, drew the Defendant’s blood at the North Hills
   Hospital emergency room, a sanitary place.

7. The date of arrest, October 31, 2012, was not during a “No-refusal”
   period where magistrates are available in a streamlined manner to
   review and sign search warrants.

8. North Richland Hills PD officers are trained and experienced
   regarding obtaining search warrants.



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   9. North Richland Hills PD has magistrates available to review and sign
      search warrants. However, this process is not as streamlined as it is
      during “No-Refusal” periods.

   10. Officer Croft obtained the Defendant’s compelled blood sample
      pursuant to the mandatory provisions of Texas Transportation Code
      Section 724.012(b). Other than the ever-present exigency-related
      factors that exist in the cases enumerated in Section 724.012(b),
      that is, the constant dissipation of alcohol from the bloodstream and
      the severity of the offense committed, here, by a DWI recidivist, no
      other exigencies arose from the circumstances of the offense.
      Officer Croft relied on the mandatory terms of Texas’[s] implied-
      consent statute.

   11. The Defendant was in possession of a valid Texas driver’s license
      at the time of this offense.

      After a hearing, the trial court denied Burks’s motion to suppress. Burks

pleaded guilty pursuant to a plea bargain, and in accordance with the plea

bargain, the trial court sentenced Burks to ten years’ confinement and a $1,500

fine, suspended imposition of the confinement portion of the sentence, and

placed Burks on community supervision for five years.

                III. BLOOD DRAW VIOLATED FOURTH AMENDMENT

      In Missouri v. McNeely, the United States Supreme Court held that the

natural dissipation of alcohol in the bloodstream does not present a per se

exigent circumstance justifying a blood test without a warrant in all DWI cases.

133 S. Ct. 1552, 1563 (2013). Exigency in this context must be determined case

by case based on the totality of the circumstances. Id.

      Texas’s implied-consent and mandatory-blood-draw statutes provide a

statutory scheme whereby the taking of blood samples is premised on “implied



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consent” and is required in certain DWI investigations, including felony DWI,

even if the suspect refuses consent. See Tex. Transp. Code Ann. §§ 724.011(a),

724.012(b), 724.013. Our sister courts have grappled with the import of McNeely

upon our mandatory-blood-draw and implied-consent statutes.            The court of

criminal appeals recently resolved the issue:

      We hold that the provisions in the Transportation Code do not, taken
      by themselves, form a constitutionally valid alternative to the Fourth
      Amendment warrant requirement. We thus reject the State’s
      assertion that a warrantless, nonconsensual blood draw conducted
      pursuant to those provisions can fall under one of the established
      exceptions to the warrant requirement described above, and we
      further reject the State’s suggestion that such a search may be
      upheld under a general Fourth Amendment balancing test.

Villarreal, 2014 WL 6734178, at *10–16.         Specifically, the court in Villarreal

rejected the State’s arguments that (1) a warrantless, nonconsensual blood test

under the transportation code should be upheld as categorically reasonable

under the consent exception—applicable in the form of a prior waiver through

implied consent, the automobile exception, the special-needs exception, or the

search-incident-to-arrest exception, (2) a blood draw should be treated as a

seizure instead of a search, and (3) such a search may be upheld on the basis

that it is reasonable under a general Fourth Amendment balancing test. Id. at

*10–17. The State raises these same arguments in this appeal.

      In this case, Burks did not consent to a blood draw, and a warrant to draw

his blood was not obtained.        The State does not rely on the exigent

circumstances exception to the warrant requirement. There was no accident or



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injury; as stated in the stipulated facts, the only “exigency” was “the constant

dissipation of alcohol from the bloodstream and the severity of the offense

committed, here, by a DWI recidivist.” Officer Croft relied exclusively on the

“mandatory provisions” of transportation code section 724.012(b)(3)(B) for the

warrantless blood draw.      See Tex. Transp. Code Ann. § 724.012(b)(3)(B).

Following Villarreal, we hold that this warrantless, nonconsensual blood draw

conducted pursuant to the mandatory-blood-draw and implied-consent provisions

of the Texas Transportation Code violated the Fourth Amendment. See 2014

WL 6734178, at *21.

      The State alternatively argues that because the officer in this case was

following the mandatory terms of the transportation code, the exclusionary rule

should not apply here. See Tex. Code Crim. Proc. Ann. art. 38.23(a) (West

2005) (providing that “[n]o evidence obtained by an officer . . . in violation of any

provisions of the Constitution or laws of the State of Texas, or of the Constitution

or laws of the United States of America, shall be admitted in evidence against the

accused on the trial of any criminal case”). But there is no exception to our

statutory exclusionary rule for an officer’s good faith reliance on a statute. See

id. art. 38.23(b) (providing the only exception for officers acting in good-faith

reliance upon a warrant); State v. Anderson, No. 09-13-00400-CR, 2014 WL

5033262, at *14 (Tex. App.—Beaumont Oct. 8, 2014, no. pet. h.) (explaining that

the federal exclusionary rule, unlike Texas’s, has at least three good faith

exceptions) (citing Davis v. United States, 131 S. Ct. 2419, 2427–28 (2011));


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Polk v. State, 704 S.W.2d 929, 934 (Tex. App.—Dallas 1986), aff’d, 738 S.W.2d

274 (Tex. Crim. App. 1987). Because there was no warrant in this case, the

statutory exception in article 38.23(b) does not apply. See Anderson, 2014 WL

5033262, at *14; Douds v. State, 434 S.W.3d 842, 861 (Tex. App.—Houston

[14th Dist.] 2014, pet. granted) (en banc).

      We hold that the trial court erred by denying Burks’s motion to suppress

the blood alcohol test results, and we sustain Burks’s sole point.

                                  IV. CONCLUSION

      Having sustained Burks’s sole point and having held that the blood alcohol

test results should have been suppressed, we reverse the trial court’s order

denying Burks’s motion to suppress and the trial court’s judgment and remand

this case to the trial court for further proceedings consistent with this opinion.



                                                     /s/ Sue Walker
                                                     SUE WALKER
                                                     JUSTICE

PANEL: WALKER, MEIER, and GABRIEL, JJ.

PUBLISH

DELIVERED: January 8, 2015




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