                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-14-00221-CR

NOE LANCIEGO COSINO,
                                                             Appellant
v.

THE STATE OF TEXAS,
                                                             Appellee



                           From the 361st District Court
                               Brazos County, Texas
                         Trial Court No. 12-02466-CRF-361


                                     OPINION

       Appellant Noe Cosino was charged with felony driving while intoxicated

following a two-vehicle accident at the southernmost tip of Brazos County. Cosino and

the driver of the other vehicle were taken to a College Station hospital for medical

treatment. While Cosino was at the hospital, the investigating state trooper asked a nurse

to conduct a mandatory blood draw under the authority of section 724.012 of the

Transportation Code, which permits a peace officer to take a blood specimen upon refusal

of the driver, where as a direct result of the accident, an individual other than the driver
has suffered bodily injury and has been transported to a hospital for medical treatment.

The blood draw occurred two and one-half hours after the crash. Cosino’s blood-alcohol

level was .035, over four times the legal limit.

        After the trial court denied Cosino’s motion to suppress the results of the blood

draw on Fourth Amendment grounds, Cosino pled guilty before the jury to driving while

intoxicated. The jury assessed punishment at five and one-half years in prison.

        On appeal, Cosino raises four issues. His first issue is whether the trial court

correctly overruled Cosino’s motion to suppress the blood-draw test results when the

State did not have a warrant but exigent circumstances allegedly justified the blood draw.

                We review a trial judge’s ruling on a motion to suppress under a
        bifurcated standard of review. First, we afford almost total deference to a
        trial judge’s determination of historical facts. The judge is the sole trier of
        fact and judge of witnesses’ credibility and the weight to be given their
        testimony. When findings of fact are not entered, we view the evidence in
        the light most favorable to the judge’s ruling and assume the judge made
        implicit findings of fact that support the ruling as [long as] the record
        supports those findings. Second, we review a judge’s application of the law
        to the facts de novo. We will sustain the judge’s ruling if the record
        reasonably supports that ruling and is correct on any theory of law
        applicable to the case.

Cole v. State, --- S.W.3d ---, ---, 2016 WL 3018203, at *3 (Tex. Crim. App. May 25, 2016)

(footnoted citations omitted).

        DPS Trooper Jason Dominguez testified that on November 12, 2010, he was the

sole trooper on duty in Grimes County. As the sole state trooper on duty, Dominguez’s

responsibilities included all crashes that happen inside of Grimes County, but outside of

a city limit. The night of November 12, 2010 was a rainy night, which increases the

number of accidents that DPS has to work. During the evening, Dominguez heard radio

Cosino v. State                                                                           Page 2
traffic about a reckless and possibly intoxicated driver in the area around the city of

Navasota. The dispatch indicated that the reckless driver was on Highway 105 near the

Grimes/Brazos County line. At the time of the dispatch, Dominguez was on the other

side of the county, so Dominguez turned around and went to the location described in

the dispatch.

        As Dominguez was driving on Highway 105, he noticed an unusual line of cars

near the Grimes County line. After pulling around the cars, Dominguez saw that there

was a vehicle crash just on the other side of the Grimes County line, inside Brazos County.

Dominguez was the only law-enforcement officer in the area at the time of the crash.

        When Dominguez got to the crash site, it was obvious to him that two vehicles had

crashed head-on in the middle of the highway. Both vehicles had substantial damage.

Cosino, the driver of the truck, was still inside his vehicle, covered in blood, and was

being treated by EMS. It was clear that Cosino was injured. Also injured at the scene

was the driver of the other car. That driver was feeling the effects from the deployment

of his air bag, as well as complaining of leg pain.

        As a result of the crash, the two-lane Highway 105 was completely blocked and

traffic could not pass, including EMS first-responders who were attempting to get to the

scene. Dominguez stated that, in this situation, it was extremely important to try and

clear the highway because this crash occurred on an unlit two-lane highway and right

after a curve, which limited visibility of the crash. In addition to the location of the crash

being a problem, it was raining. These problems combined to create a situation where

there was a risk of further crashes until the highway was cleared.

Cosino v. State                                                                         Page 3
        Dominguez observed that Cosino was intoxicated; his speech was slurred, he

could not recall his birth date, and there were several beer containers around his vehicle.

Normally, once Dominguez observes that a person is intoxicated, he would begin a DWI

investigation, but because the roadway was closed and Cosino was injured and still

inside his vehicle, Dominguez focused on getting everyone secured, safe, and off the

roadway.

        Because the crash was in Brazos County, the trooper in Brazos County became

responsible for the crash. That evening, there was only one state trooper on duty in

Brazos County, Trooper Ryan Kindell. Dominguez notified Kindell of the crash, and

Kindell arrived at the scene approximately forty-five minutes later.          Dominguez

estimated that the crash happened approximately fifteen minutes before he called

Kindell.

        While awaiting Kindell’s arrival, Dominguez talked with witnesses at the scene

and took several photographs because the rain could potentially destroy the evidence at

the scene before Kindell’s arrival. Dominguez also requested some wreckers from

Grimes County to come to the scene to clear the highway. While Dominguez was

coordinating efforts to clear the road, EMS and firefighter personnel eventually extracted

Cosino and the other driver from their vehicles and transported them to a hospital in

College Station. When Cosino was finally extracted from his vehicle and transported to

the hospital, Kindell had not arrived.

        The only other on-duty law-enforcement officer who had arrived on scene at the

time Cosino was removed from the vehicle was Trooper Reeves, who had arrived from

Cosino v. State                                                                      Page 4
nearby Washington County. Reeves was the only state trooper on duty in Washington

County at the time of the crash. No other Brazos County law-enforcement officers were

there to help at the scene of the crash, but Dominguez agreed that he could have called

the sheriff’s department for help if they had someone available. A plain-clothed off-duty

Navasota police officer who drove up on the wreck stopped to help, as did an off-duty

plain-clothed Montgomery County Constable. Besides Dominguez, the off-duty officers

and Reeves were the only other officers at the scene at the time Cosino was pulled from

the vehicle. As a result, Dominguez did not have an opportunity to conduct a DWI

investigation on Cosino at the scene.

        When Kindell arrived, Dominguez briefed him on what had occurred. Kindell

assisted Dominguez and Reeves in clearing the road and attempting to get the highway

back open. After the road was clear, Dominguez and Kindell followed the wreckers to

complete the required inventory sheet on the vehicles because both vehicles were towed

from the scene without their owners present. Dominguez and Kindell did not do the

inventory sheets at the scene of the crash because of safety concerns and the rainfall. The

vehicle inventory took approximately half an hour. After the inventory was complete,

Kindell then left to go to the hospital in Brazos County to further investigate the crash.

At the time Kindell left to go to the hospital in Brazos County, it was almost two hours

since the time of the crash. Dominguez said that if Kindell had asked him to get a warrant

from a Brazos County judge, he could have done so if he first got permission.

        Dominguez testified that, in the past, he has attempted to get DWI blood search

warrants after similar crashes. In his experience, it has taken in excess of two hours to

Cosino v. State                                                                      Page 5
get a search warrant for the blood of a possibly intoxicated individual. Typically, in such

an investigation, Dominguez would first go to the hospital and evaluate the person to see

whether any type of field-sobriety tests could be done, or whether the person was fit to

interview. Based on his findings in the interview and field-sobriety tests, he would then

draft an affidavit and search warrant that can be five or six pages long. After drafting the

affidavit and search warrant, he would then have to find a judge to fax the affidavit and

search warrant to. After finding a judge and getting it signed, he would then have to go

back to the hospital for the suspect’s blood to be physically drawn. Dominguez stated

that in such a situation, time is of the essence because the alcohol in the blood is being

metabolized.

        Kindell testified that on the night of November 12, 2010 and into the morning of

November 13, 2010, he was on duty with the DPS, assigned to Brazos County. Kindell

was the only on-duty trooper assigned to Brazos County that night. Kindell’s duties that

night included responding to any crashes that occurred in the rural areas of Brazos

County. With the rain the night of November 12, 2010, Kindell stated his main duty was

just waiting until a crash occurred.

        Around 1:30 a.m., Kindell was called about a crash that had occurred at the

extreme southern tip of Brazos County. Kindell responded to the crash, but it took him

approximately forty-five minutes to get to the scene. When Kindell arrived, Dominguez

was on scene, and at some point Reeves arrived. Kindell was primarily responsible for

the crash because he was the trooper assigned to Brazos County, and the crash had



Cosino v. State                                                                       Page 6
occurred on a highway in a rural location inside Brazos County. During the entire

investigation, Kindell was the only Brazos County law-enforcement officer on scene.

        On his arrival, Kindell saw that traffic was backed up on both sides of the bridge

because the crash was blocking the entire highway. It appeared from the location of the

vehicles that the driver of the black truck had come across the highway into oncoming

traffic and had a head-on collision with the driver of a Lincoln Towncar. Neither of the

drivers of the vehicles was on scene when Kindell arrived. Kindell was informed that

both drivers were injured and had been taken to the hospital by ambulance. Kindell

observed several alcohol containers around the black truck and also that the black truck

smelled of alcohol.

        Kindell and Dominguez helped clear the highway and moved the vehicles to a

nearby gas station parking lot to conduct an inventory of the vehicles. The inventory

took approximately ten to fifteen minutes. After finishing the inventory, Kindell drove

to the College Station Medical Center to interview the drivers of both vehicles.

        When Kindell arrived at the College Station Medical Center, Cosino was restrained

to the bed because he was being combative and verbally abusive to the hospital staff.

Kindell observed that Cosino’s behavior was very aggressive, and Kindell could smell a

strong odor of alcohol on Cosino. It was clear to Kindell from his observations that

Cosino was intoxicated.

        Kindell attempted to read the DIC-24 to Cosino to request a voluntary sample of

his blood, but, every time Kindell attempted to read the statutory warning, Cosino got

louder and more verbally abusive towards Kindell and the hospital staff. As a result of

Cosino v. State                                                                     Page 7
Cosino’s behavior, Kindell was unable to read the entire DIC-24 to him. After attempting

but failing to get Cosino’s cooperation, Kindell asked the registered nurse to conduct a

mandatory blood draw based on the law that gives police the authority to order a blood

draw when there has been a crash where an injured person was transported for medical

care. On the THP-51 form for the mandatory blood draw, Kindell checked the form for

“accident with death, serious bodily injury or hospital treatment for bodily injury;

suspect was involved in an accident that I have reason to believe occurred as a result of

the suspect’s intoxication.” Kindell admitted that, because he was satisfied that he had

enough information for the mandatory blood draw, at the time he was not thinking about

getting a warrant, but had he wanted to get a warrant, he could have done so by fax from

the hospital if he found a judge with an available computer. He also said that the

mandatory blood draw “was the quickest way to obtain blood to preserve the evidence.”

        Although Cosino continued to yell the entire time, he never specifically objected

to his blood being drawn. Even though Cosino never objected to the blood draw, in

Kindell’s mind it was a mandatory blood draw. The blood draw occurred approximately

two hours and thirty minutes after the crash.

        Kindell testified that, in the past, he has obtained search warrants for blood in DWI

investigations in Brazos County. Kindell testified that the process of getting a blood

warrant for a DWI investigation in Brazos County typically takes an hour to an hour and

a half. Kindell described the process to get a warrant as requiring the officer to first write

up an affidavit. After finishing the affidavit, Kindell then has to contact a judge, which

sometimes requires waiting for the judge to call Kindell back. After contacting the judge,

Cosino v. State                                                                         Page 8
Kindell either has to fax the search warrant to the judge’s home or physically take the

search warrant to the judge’s home. After faxing the search warrant, Kindell then either

has to wait for the judge to read the search warrant and fax it back to him, or Kindell has

to physically take the search warrant back to the medical facility. Kindell testified that in

his experience, if he were to have gotten a warrant, the blood draw would not have

occurred until three-and-a-half to four hours had passed since the accident. That time

limit is critical because Cosino’s body was actively destroying the alcohol in his system.

        Kindell explained that he could not have Dominguez or another trooper handle

the warrant while he handled other matters in the investigation because of the manpower

shortage that the troopers had that night. Pulling either Dominguez from Grimes County

or Reeves from Washington County would leave one of those rural counties without any

state troopers to respond to crashes in the entire county.

        In the absence of a warrant, the State has the burden to show exigent circumstances

that made obtaining a warrant impractical. Turrubiate v. State, 399 S.W.3d 147, 151 (Tex.

Crim. App. 2013). In his first issue, Cosino contends that the State did not meet its

burden.

        In Cole and in Weems v. State, --- S.W.3d ---, 2016 WL 2997333 (Tex. Crim. App. May

25, 2016), the Court of Criminal Appeals very recently articulated the current state of the

law on exigent circumstances and warrantless blood draws.

               As [State v.] Villarreal[, 475 S.W.3d 784 (Tex. Crim. App. 2014), reh’g
        denied, 475 S.W.3d 817 (Tex. Crim. App. 2015) (per curiam)] made plain, a
        warrantless search is per se unreasonable unless it falls within a well-
        recognized exception to the warrant requirement. The exigency exception
        operates “when the exigencies of the situation make the needs of law

Cosino v. State                                                                          Page 9
        enforcement so compelling that a warrantless search is objectively
        reasonable under the Fourth Amendment.” Exigency potentially provides
        for a reasonable, yet warrantless search “because ‘there is compelling need
        for official action and no time to secure a warrant.’” Whether law
        enforcement faced an emergency that justifies acting without a warrant
        calls for a case-by-case determination based on the totality of circumstances.
        “[A] warrantless search must be strictly circumscribed by the exigencies
        which justify its initiation.” An exigency analysis requires an objective
        evaluation of the facts reasonably available to the officer at the time of the
        search.

              In Schmerber v. California, [384 U.S. 757, 770–72, 86 S.Ct. 1826, 16
        L.Ed.2d 908 (1966)] the United States Supreme Court held that, based on the
        circumstances surrounding the search, a warrantless seizure of a driver’s
        blood was reasonable.

                  ….

               Adopting a totality-of-circumstances approach, the Court held that
        the circumstances surrounding the blood draw rendered the warrantless
        search reasonable: (1) the officer had probable cause that Schmerber
        operated a vehicle while intoxicated; (2) alcohol in the body naturally
        dissipates after drinking stops; (3) the lack of time to procure a warrant
        because of the time taken to transport Schmerber to a hospital and
        investigate the accident scene; (4) the highly effective means of determining
        whether an individual is intoxicated; (5) venipuncture is a common
        procedure and usually “involves virtually no risk, trauma, or pain”; and (6)
        the test was performed in a reasonable manner.

Weems, --- S.W.3d at ---, 2016 WL 2997333, at *3-4 (footnoted citations omitted).

                Nearly fifty years later, the Court in McNeely held that the natural
        dissipation of alcohol in the bloodstream did not create a per se exigency
        justifying an exception to the Fourth Amendment’s warrant requirement
        for nonconsensual blood testing. The McNeely Court held firm to the
        warrant requirement by stating that “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.” Yet the Court still recognized the gravity of the body’s
        natural metabolic process and the attendant evidence destruction over time.
        With this balance in mind, the Court adhered to a totality of the
        circumstances analysis with the notion that certain circumstances may
        permit a warrantless search of a suspect’s blood. The narrow issue before

Cosino v. State                                                                          Page 10
        the Court prohibited it from providing an exhaustive analysis of when
        exigency in intoxication related offenses may be found. However, the
        Court provided insight on the issue by identifying a few relevant
        circumstances that may establish exigency in this context. In addition to
        the body’s metabolization, they include “the procedures in place for
        obtaining a warrant, “the availability of a magistrate judge,” and “the
        practical problems of obtaining a warrant within a timeframe that still
        preserves the opportunity to obtain reliable evidence.”

Cole, --- S.W.3d at ---, 2016 WL 3018203, at *4 (footnoted citations omitted).

        One of the factors that may create an exigency, as pointed out by the Supreme

Court in McNeely, is the combination of a car accident with a DWI investigation:

        Although the Missouri Supreme Court referred to this case as
        “unquestionably a routine DWI case,” the fact that a particular drunk-
        driving stop is “routine” in the sense that it does not involve “ ‘special facts,’
        ”such as the need for the police to attend to a car accident, does not mean a
        warrant is required. Other factors present in an ordinary traffic stop, such
        as the procedures in place for obtaining a warrant or the availability of a
        magistrate judge, may affect whether the police can obtain a warrant in an
        expeditious way and therefore may establish an exigency that permits a
        warrantless search. The relevant factors in determining whether a
        warrantless search is reasonable, including the practical problems of
        obtaining a warrant within a timeframe that still preserves the
        opportunity to obtain reliable evidence, will no doubt vary depending
        upon the circumstances in the case.

Missouri v. McNeely, 133 S.Ct. 1552, 1568 (emphasis added).

        The State cites Pearson v. State, No. 13-11-00137-CR, 2014 WL 895509 (Tex. App.—

Corpus Christi, Mar. 6, 2014, pet. ref’d) (mem. op., not designated for publication) as

support.     See TEX. R. APP. P. 47.7(a) (“Opinions and memorandum opinions not

designated for publication by the court of appeals under these or prior rules have no

precedential value but may be cited with the notation, ‘(not designated for publication).’

“). In Pearson, Trooper Aguilar testified that, on the night of the accident, he was the only


Cosino v. State                                                                              Page 11
DPS trooper on duty and was solely responsible for securing the accident scene, collecting

the evidence, and investigating the possibly intoxicated driver. Pearson, 2014 WL 895509,

at *3. At the time Aguilar arrived at the crash scene at 4:50 a.m., the defendant and the

other survivors of the crash had already been transported to the hospital. Id. Aguilar

was informed by another officer and EMS personnel that the defendant was “wasted.”

Id. Aguilar was required to complete the investigation at the scene before he could go to

the hospital to complete his investigation. Id. After completing his investigation at the

scene, Aguilar arrived at the hospital at 10 a.m. and tried to speak with the defendant,

who denied drinking and refused to give his blood. Id. Aguilar had the defendant’s

blood drawn without a warrant. Id. The trial court denied the defendant’s motion to

suppress the blood draw, rejecting the defendant’s argument that Aguilar had created

the exigency by waiting almost six hours before drawing his blood. Id. The Thirteenth

Court affirmed, holding:

                We do not believe Trooper Aguilar created the exigent circumstances
        in this case. Trooper Aguilar testified that he was the only officer on duty
        that morning and that he was solely responsible for securing the scene of
        the accident. He testified that he traveled to the hospital as soon as he
        completed his duties at the accident scene, which were time-consuming and
        extensive. Finally, he testified that because it was a Sunday, it would have
        taken at least three hours to obtain a warrant from a judge, and because so
        much time had already passed since the accident, he could not wait for a
        warrant before obtaining a blood sample because the potential evidence of
        intoxication was rapidly degrading. The trial court was entitled to credit
        Trooper Aguilar’s version of events. Under the record before it, the trial
        court could have reasonably determined that Trooper Aguilar went to the
        hospital as soon as was practicable considering the circumstances of that
        morning. Moreover, determining whether an officer impermissibly
        manufactured an exigency depends on “ ‘the reasonableness and propriety
        of the investigative tactics that generated the exigency.’ ” Based on Trooper
        Aguilar’s explanation of the events of that morning, the trial court could

Cosino v. State                                                                         Page 12
        have reasonably concluded that the officer’s investigative tactics were not
        an attempt to deliberately create exigent circumstances that would justify a
        warrantless blood draw. In the end, the foregoing were mixed questions of
        law and fact that depended on the trial court’s assessment of Trooper
        Aguilar’s credibility, and we must defer to the trial court’s determination
        of these questions.

Id. (citations omitted).

        In this case, Kindell was the sole trooper on duty in Brazos County at the time of

collision, and he was solely responsible for the cleanup of the crash and the ensuing

investigation. The other two troopers who assisted were the sole troopers on duty in

their respective counties. Also, Kindell did not arrive at the scene until almost an hour

after the crash, long after Cosino was taken to the hospital. Further, when Kindell

arrived, the unlit highway was entirely blocked in the middle of the night while it was

raining. Clearing the highway and investigating the crash were extensive activities that

were time consuming, but they had to done before Kindell could leave the scene to

interview Cosino at the hospital in College Station. Cosino’s apparent refusal and the

mandatory blood draw occurred approximately two and a half hours after the collision.

Kindell testified that if he had had to get a warrant, it would have taken another hour to

an hour and a half, and valuable evidence would have been lost.

        Because the trial court did not enter findings of fact, we view the evidence in the

light most favorable to the trial court’s ruling, we assume that the trial court made

implicit findings of fact that support its ruling as long as the record supports those

findings, and we will sustain the trial court’s ruling if the record reasonably supports it.

Cole, --- S.W.3d at ---, 2016 WL 3018203, at *3.


Cosino v. State                                                                        Page 13
        In this case, the record reasonably supports the trial court’s denial of Cosino’s

motion to suppress, and we conclude that exigent circumstances justified Kindell’s

warrantless blood draw. See id., --- S.W.3d at ---, 2016 WL 3018203, at *5-7; see also Pearson,

2014 WL 895509 at *3-4. Accordingly, we overrule issue one.

        In his second issue, Cosino asserts that the trial court erred in denying his motion

to declare section 724.012 of the Transportation Code unconstitutional. We construe

Cosino’s motion to be a facial attack on the statute. In McGruder v. State, 475 S.W.3d 345

(Tex. App.—Waco 2015), vacated, 483 S.W.3d 880 (Tex. Crim. App. 2016), a majority of the

court held that section 724.012 was constitutional, 475 S.W.3d at 350, but the Court of

Criminal Appeals vacated our judgment for us to give the issue further consideration in

light of the intervening opinions in Villareal and City of Los Angeles v. Patel, 135 S.Ct. 2442,

2449-50 (2015) (confirming that facial challenges to statutes can be brought under the

Fourth Amendment).

        Having considered Villareal and Patel, and noting that at least two sister courts

have held that section 724.012 is constitutional,1 we reaffirm our original decision in

McGruder and hold that section 724.012 is facially constitutional. Issue two is overruled.

        In issues three and four, Cosino asserts, respectively, that the trial court erred in




1
 Gore v. State, 451 S.W.3d 182, 189 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d) (“While the statute does
make a blood draw without consent mandatory in certain circumstances, it does not mandate a blood draw
without a warrant. Thus, a nonconsensual blood draw, with a warrant, would not be constitutionally
infirm.“); State v. Martinez, No. 13-14-00117-CR, 2015 WL 1957087, at *3-4 (Tex. App.—Corpus Christi Apr.
30, 2015, no pet.) (mem. op., not designated for publication) (“An officer may comply with both the
mandatory blood-draw statute and the reasonableness requirements of the Fourth Amendment by
obtaining a warrant or by proceeding without a warrant if the specific circumstances of the case present an
exigency sufficient to dispense with the requirement of a warrant.”).
Cosino v. State                                                                                     Page 14
overruling his objections to the prosecutor’s closing argument and that the prosecutor’s

argument denied Cosino due process.

        After Cosino pleaded guilty, in closing argument of the trial on punishment, his

attorney made the following argument:

               [DEFENSE COUNSEL]: Ladies and gentlemen, in a minute Ryan is
        going to come up and he’s going to ask you for a term of imprisonment.
        But what he’s really asking is for a death sentence. You see my client has a
        disease called HIV -- [Emphasis added.]

               [PROSECUTOR]: Judge – I’ll withdraw that. I’ll withdraw that.
        That’s fine.

                [DEFENSE COUNSEL]: You can see here in the medical records that
        he has human immune deficient virus. His immune system cannot
        withstand exposure to disease. And they’re going to ask you to send him
        to the cesspool, the breeding ground of disease, which is prison. Even if you
        send him to prison for the minimum term of two years, he’s not going to make it.
        His life span right now has already been severely diminished. [Emphasis
        added.]

                And he’s one of the nicest people you’ll ever meet in your life. Look
        how many people are here in support of him. How many of y’all could get
        as many people to come down here through the driving rain to say -- show
        their support. I couldn’t get that many people. That’s the true account of
        who he is as a person. Not the person at the hospital who was belligerent.
        How many of y’all would want to be judged by your worst behavior of your
        life, that one time?

               The measure of who Noe is, is the people who are down here to
        support him. I’d like to ask you if you remember that movie “Schindler”s
        List.” I know some of you have seen it. In “Schindler’s List” Schindler is
        having cocktails with the head of the Nazi death camp. And the guy from
        the Nazi death camp says, “These people, they’re only doing what we want
        them to do because we have power over them.” And Schindler says -- Oscar
        Schindler said, “That’s not power. Real power is mercy.”

               And the guy’s like -- the camp guard is, like, “What are you talking
        about?” And Schindler says, “The real power is having the ability to take
        someone’s life and yet granting them mercy even when they don’t perhaps
Cosino v. State                                                                            Page 15
        deserve it. That’s real power.” That’s what Schindler said.

                And, ladies and gentlemen, you have all the power in the world.
        This is a wide range, from probation all the way to ten years in prison. I am
        asking you, please, recommend probation. Noe’s asking you to recommend
        probation. His family is asking you to recommend probation. The
        community is asking you to recommend probation. A lot of them are here
        yesterday -- or today. So we’re asking you for justice, but please temper
        your justice with mercy.

        In rebuttal, the State argued as follows:

              [PROSECUTOR]: There’s a man in that crumpled car right there.
        He’s an elderly man named Henry Scott. And Mr. Scott has family and he
        has people that depend on him.

                And on [November] 12th, 2010, the man sitting right over there did
        everything he needed to do to kill Henry Scott. I don’t think anyone who has
        testified in this case has disagreed with that. I don’t think anyone could
        rationally disagree with that, even the Defendant’s own people, his friends
        and family have kind of had to reluctantly agree that night this man did
        everything he needed to do to take Henry Scott away from the people that
        care about him. [Emphasis added.]

             [DEFENSE COUNSEL]: Your Honor, I object. Improper jury
        argument. He’s trying to convict the Defendant for a fictitious offense.

                  THE COURT: It’s overruled. Go ahead, sir.

               [PROSECUTOR]: No one disputes that, even the Defendant’s
        family. Which brings up an interesting point, something that occurred to
        me last night as I was thinking about that. Everyone agrees that this Defendant
        did what he needed to do to kill Henry Scott. The fact that Henry Scott did not
        die as a result of that crash had nothing to do with the Defendant.
        Everybody agreed. All of his people that testified agreed what the
        Defendant did was enough to make that happen. [Emphasis added.]

               The only thing that saved Henry Scott was divine intervention, blind
        luck and an air bag. Okay? But what if Mr. Scott, like the Defendant had
        not had an air bag? What if Mr. Scott, like the Defendant --


Cosino v. State                                                                           Page 16
              [DEFENSE COUNSEL]: Objection, Your Honor that’s improper jury
        argument. It’s outside the record. The testimony was the Defendant’s air
        bag didn’t go off.

                  THE COURT: It’s overruled. The jury will recall the evidence. Go
        ahead.

                [PROSECUTOR]: What if Mr. Scott, like the Defendant, was not
        wearing a seatbelt? Or what if Mr. Scott had not been driving that big old
        Lincoln Towncar, but had been driving a much smaller, lighter car? Then
        you know what, I’m not standing here today talking to you about a DWI
        case. I’m standing here talking to you today about a murder. [Emphasis added.]

               [DEFENSE COUNSEL]: Objection, Your Honor. That’s improper
        jury argument. This is a DWI case, not a murder case. He’s trying to try
        him for a fictitious and theoretical offense.

              [PROSECUTOR]: That’s not a legal objection, Judge. And this is
        absolutely proper jury argument.

                  THE COURT: It’s overruled. You may continue.

               [PROSECUTOR]: The law in Texas clearly states that if someone is
        driving intoxicated and kills somebody and that individual has at least twice before
        been convicted of DWI, that’s called murder. [Emphasis added.]

               [DEFENSE COUNSEL]: Your Honor, can I again object to that.
        That’s improper jury argument. That’s unduly prejudicial. It denies the
        Defendant the right to a fair trial. And I’d ask for an objection and a running
        objection. It's not a murder case.

              THE COURT: Thank you. It’s overruled. And you may have a
        running objection.

                [PROSECUTOR]: It is causing a death during the commission of a
        felony, whether you intended to or not. The felony in this case being DWI.
        People are tried for murder under those circumstances routinely
        throughout Texas. I’ve tried people for that. And we’re standing here talking
        about life in prison on murder. The Defendant’s conduct, according to his own
        people, was sufficient to make that happen. The fact that we’re not here on that
        has nothing to do with the Defendant or his conduct.


Cosino v. State                                                                                Page 17
               All we’re asking for is ten. And that’s not unreasonable because,
        frankly, the case is worth more than that.

        Jury argument is limited to: (1) summations of the evidence; (2) reasonable

deductions from the evidence; (3) answers to argument of opposing counsel; and (4) a

plea for law enforcement. Guidry v. State, 9 S.W.3d 133, 154 (Tex. Crim. App. 1999).       To

determine if the prosecutor made an improper jury argument, we must consider the

entire argument in context—not merely isolated instances. See Rodriguez v. State, 90

S.W.3d 340, 364 (Tex. App.—El Paso 2001, pet. ref’d). An argument that exceeds these

bounds is error, but only reversible error if, in light of the record as a whole, the argument

is extreme or manifestly improper, violates a mandatory statute, or injects into the trial

new facts that are harmful to the accused. Felder v. State, 848 S.W.2d 85, 94-95 (Tex. Crim.

App. 1992).

        In his third issue, Cosino complains that the prosecutor’s several references to

murder were improper because they were outside the record and were references to a

theoretical and fictitious murder offense. In support, Cosino cites Young v. State, 752

S.W.2d 137 (Tex. App.—Dallas 1988, pet. ref’d). In Young, the defendant was stopped for

a traffic offense and asked to step out of the car. Id. at 140. While the license check was

going on, the defendant asked to be able to return to his vehicle to turn the vehicle off to

conserve gas.     Id.   When the officers discovered that the defendant’s license was

suspended, they arrested him and inventoried his vehicle. Id. During the vehicle search,

officers discovered two loaded handguns, among other contraband. Id. During closing

argument for trial on the offense of unlawful possession of a firearm by a felon, the


Cosino v. State                                                                        Page 18
prosecutor repeatedly invited the jury to speculate that if the defendant had been allowed

to return to the vehicle and have access to the guns, he would have attempted to harm

the officers. Id. at 143-45. The appellate court determined that the prosecutor’s argument

injected new, harmful facts into the record because there was no support in the record for

the prosecutor’s argument that the defendant had intended to harm the officers. Id. at

145.

        The State responds that, unlike Young, the prosecutor’s arguments at issue did not

inject any new, harmful acts by the defendant into the case. Instead, the prosecutor’s

argument centered on the facts of the case and the possible ramifications of Cosino’s

drunk-driving behavior. We agree that the arguments were a reasonable deduction from

the evidence and a plea for law enforcement in light of Cosino’s request for probation.

See Richards v. State, 912 S.W.2d 374, 380-81 (Tex. App.—Houston [14th Dist.] 1995, pet.

ref’d) (prosecutor’s argument about finding body on the street was proper summation of

evidence because if victim had died, he would have been a body in the street); Gonzales

v. State, 831 S.W.2d 491, 494 (Tex. App.—Houston [14th Dist.] 1992, pet. ref’d) (holding

that it was proper for prosecutor to ask jury to consider what would have happened if

defendant had been two steps closer to victim when he thrust knife toward victim; “[t]hat

appellant’s swinging of the knife could have caused further injury, was as the trial court

observed, a reasonable deduction from the evidence”).

        We also agree with the State that the prosecutor’s argument was a proper

summation of the evidence because it reflects what could have happened and what

punishment would have been proper if Scott had not had an airbag in his vehicle. See

Cosino v. State                                                                    Page 19
Porter v. State, 601 S.W.2d 721, 723 (Tex. Crim. App. 1980) (upholding as proper jury

argument the statement “people get killed in armed robberies” because the defendant

was armed); Parks v. State, 843 S.W.2d 693, 694-95 (Tex. App.—Corpus Christi 1992, pet.

ref’d) (upholding the jury argument, “This is an attempted capital murder. This is the

type of person, had not the police shot this guy, that we would have pictures of a dead

police officer and we would be trying a death sentence case,” as it was reasonable

deduction from the evidence because defendant ran towards officer with a knife

screaming that he was going to get him).

        Lastly, we agree with the State that the prosecutor’s arguments were an answer to

Cosino’s argument that sending him to prison was the equivalent of a “death sentence.”

After that argument, it was not improper for the State to argue that Cosino’s drunk

driving could have caused Scott’s death. See Smith v. State, 932 S.W.2d 304, 306 (Tex.

App.—Houston [14th Dist.] 1996, pet. granted) (holding that prosecutor’s statement that

victim was a “good guy too” was a proper response to the defense’s closing argument

that the defendant was a “good guy”), aff’d, 965 S.W.2d 509 (Tex. Crim. App. 1998).

        For the above reasons, we conclude that the trial court did not err in overruling

the objections to the State’s argument. Issue three is overruled.

        In issue four, Cosino asserts that the prosecutor’s arguments involved in issue

three denied him due process. One of Cosino’s objections was that the argument “denies

the Defendant the right to a fair trial.” See Miller v. State, 741 S.W.2d 382, 391 (Tex. Crim.

App. 1987) (“improper argument may present a Fourteenth Amendment due process

claim if the prosecutor’s argument so infected the trial with unfairness as to make the

Cosino v. State                                                                        Page 20
resulting conviction a denial of due process.”) (citing Darden v. Wainwright, 477 U.S. 187,

106 S.Ct. 2464, 91 L.Ed.2d 144 (1986)). The State contends that Cosino’s “fair trial”

objection was not specific enough to raise his due-process claim and that a trial objection

stating one legal theory may not be used to support a different legal theory on appeal.

        Because of our disposition of issue three, we assume without deciding that

Cosino’s “fair trial” objection raised his due-process claim in the trial court. In issue three,

we determined that the prosecutor’s arguments were not improper.                  Because the

arguments were not improper, they did not deny Cosino due process. Issue four is

overruled.

        Having overruled all four issues, we affirm the trial court’s judgment.




                                                   REX D. DAVIS
                                                   Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
       (Chief Justice Gray concurs with a note)*
Affirmed
Opinion delivered and filed August 3, 2016
Publish
[CR25]

       *(Chief Justice Gray concurs in the judgment of the Court to the extent that it
affirms the trial court’s judgment. A separate opinion will not issue. Chief Justice Gray
notes, however, that on page 13 of the opinion the Court makes the unnecessary
statement that there was an “apparent refusal” to the blood draw by Cosino. The record
would support a conclusion by the trial court that Cosino did not withdraw his implied
consent. But whether there was or was not a refusal is not important to the Court’s
opinion. What is important in the broader context of the analysis, however, is whether a
suspected DWI driver withdrew the driver’s implied consent to the blood draw that the

Cosino v. State                                                                         Page 21
statute provides. That is why the statute is not facially unconstitutional. The statute
provides implied consent in the circumstances defined. Consent is a well-recognized
exception to the warrant requirement. When McGruder was written, the only very
narrow issue squarely before the Court was whether the statute always operated
unconstitutionally. We held that it did not. See McGruder v. State, 475 S.W.3d 345, 349-50
(Tex. App.—Waco 2014), vacated and remanded by, 483 S.W.3d 880 (Tex. Crim. App. 2016).
The reason is that in the defined circumstances it simply implies consent. Consent can be
given; expressly or by implication. But more important to the discussion of what has
been termed “mandatory blood draws” under the statute, consent, including implied
consent, can be withdrawn. In all the cases other than McGruder, the question involved,
in part, whether the “mandatory blood draw” could be taken over the objection of the
driver, or more precisely, after the driver’s implied consent had been expressly
withdrawn. The United States Supreme Court has now provided more guidance in the
nature of the validity and pitfalls of certain statutes as they relate to taking breath or
blood samples from persons who are believed to be intoxicated and whether and how
that evidence can be used. See Birchfield v. North Dakota, ___ U.S. ___, ___ S.Ct. ___, 195
L. Ed. 2d 560 (2016). This issue is far from being fully and finally resolved and is an area
that is ripe for modification by the legislature and clarification by judicial interpretation.
Thus, it is unnecessary to burden this case with further discussion and analysis upon the
concurrence that the trial court’s judgment does not contain reversible error.)




Cosino v. State                                                                        Page 22
