Opinion issued February 6, 2014




                                      In The

                              Court of Appeals
                                     For The

                          First District of Texas
                             ————————————
                              NO. 01-12-00898-CR
                            ———————————
                      MICHAEL JOE LYSSY, Appellant
                                        V.
                       THE STATE OF TEXAS, Appellee


                On Appeal from the County Court at Law No. 2
                          Galveston County, Texas
                        Trial Court Case No. 314207


                                  OPINION

      This appeal concerns a Texas statute which requires a law enforcement

officer to take a blood sample from a suspect arrested for driving while intoxicated

when the officer has reliable information from a credible source that the suspect

has two prior convictions for driving while intoxicated. See TEX. TRANSP. CODE
ANN. § 724.012(b) (West 2011). Appellant Michael Joe Lyssy was charged by

information with the misdemeanor offense of driving while intoxicated. See TEX.

PENAL CODE ANN. § 49.04 (West 2011). Lyssy moved to suppress evidence of a

blood draw taken the night of his arrest. He argued that the report of his criminal

history on which the officer relied was not reliable or credible because it listed a

conviction for “driving while intoxicated 2nd” but no prior DWI conviction. The

trial court denied this motion. After the trial court denied his motion to suppress,

Lyssy entered a plea of nolo contendere and was convicted of driving while

intoxicated.

      In his sole appellate issue, Lyssy argues that the trial court erred by denying

his motion to suppress. We affirm.

                                     Background

      Officer Gavino Rivas of the League City Police Department stopped Lyssy

for failing to maintain a single lane of traffic. Rivas performed a field sobriety test.

He also asked Lyssy to blow into a breathalyzer, but was refused. He then arrested

Lyssy.

      Rivas called League City dispatch and asked for a report on Lyssy from two

databases, the Texas Crime Information Center and the National Crime

Information Center (TCIC/NCIC). Rivas provided Lyssy’s license plate number

and his driver’s license number to query. The resulting report listed multiple event


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cycles, including an arrest nearly seven years earlier, which the database reported

resulted in a guilty plea and conviction for the class A misdemeanor offense of

“driving while intoxicated 2nd.” No other DWI conviction was included in the

report.

      Dispatch orally reported its findings to Rivas over the radio. In Rivas’s

words, “The results came back that Mr. Lyssy’s license was suspended, that he had

prior convictions for driving while license suspended, and he had . . . a conviction

for DWI second conviction.” Rivas testified that he did not remember hearing

anything about a first offense for DWI.

      Based upon this information and the mandatory blood-draw statute

(Transportation Code chapter 724), Rivas requested a sample of Lyssy’s blood

without obtaining a warrant. Lyssy refused. Rivas transported him to the hospital

where one of its employees extracted a blood specimen.

      At the subsequent hearing on Lyssy’s motion to suppress the evidence

resulting from the blood draw, Rivas testified, “From the information I have

now . . . he did not have two convictions.” He also testified that on the night of the

arrest, he relied on the TCIC/NCIC report to conclude that Lyssy “did have two

prior convictions for driving while intoxicated,” and at the time he had no reason to

doubt that information from the report.




                                          3
      The TCIC database is maintained by the Texas Department of Public Safety.

Both TCIC and NCIC are updated “24/7.” Each participating law enforcement

agency inputs its own information on arrests. It is the responsibility of each agency

to check the information it inputs for accuracy. As Rivas described TCIC/NCIC:

      It’s . . . the database of all criminal histories, both within Texas and
      nationally. It’s administered by the individual law enforcement
      agencies. For League City, we place everything there, from stolen
      vehicles, missing children, warrants, things like that; and we’re
      responsible for administering our portion of the database.

Rivas was asked how often he relies on information from TCIC/NCIC. He replied,

“any incident, any contact with a potential subject, we rely on the returns given by

our dispatch via TCIC/NCIC.” He testified that he has found information from

TCIC/NCIC to be credible and reliable in the past. When questioned whether he

had ever had a problems with the accuracy of information from the databases, he

answered, “On a general basis, no, sir.” The trial court denied the motion to

suppress.

      Pursuant to a plea bargain, Lyssy pleaded nolo contendere and was

sentenced by the trial court to 365 days in jail, in addition to a $300 fine. The court

suspended this sentence and imposed a twenty-four month term of community

supervision. The trial court certified his right to appeal its decision on the motion

to suppress.




                                          4
                                      Analysis

      In his appellate brief, Lyssy offers two reasons why the blood evidence

should have been suppressed. His first reason is that the statute relied upon by the

State to justify the blood draw, TEX. TRANSP. CODE ANN. § 724.012(b), is no

longer a legitimate basis for search in light of Missouri v. McNeely, 133 S. Ct.

1552 (2013). His second reason is that the statute itself was not satisfied because

the officer lacked reliable information that Lyssy had two prior convictions for

driving while intoxicated, as would require a blood draw under the statute.

      The relevant portion of the Transportation Code reads as follows:

      (b) A peace officer shall require the taking of a specimen of the
      person’s breath or blood under any of the following 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:

      ...

            (3) at the time of the arrest, the officer possesses or receives
               reliable information from a credible source that the person:

      ...

               (B) on two or more occasions, has been previously convicted of
               or placed on community supervision for an offense under
               Section 49.04 [Driving While Intoxicated], 49.05, 49.06, or
               49.065, Penal Code, or an offense under the laws of another
               state containing elements substantially similar to the elements
               of an offense under those sections.

      (c) The peace officer shall designate the type of specimen to be taken.

                                          5
TEX. TRANSP. CODE ANN. § 724.012(b)(3)(B), (c). When a person is arrested under

the circumstances described in section 724.012(b), that person’s refusal to submit

to the taking of the specimen does not suspend the officer’s statutory duty to take

it. Id. § 724.013.

I.    Waiver of constitutional challenge to section 724.012(b)

      In his brief, Lyssy asserts that extraction of blood pursuant to

section 724.012(b) is unconstitutional given the Supreme Court’s decision in

McNeely. However, Lyssy did not argue before the trial court that blood extraction

pursuant to section 724.012(b) was unconstitutional. Lyssy’s argument at the

hearing on his motion to suppress was directed solely at whether the statutory

predicates for a blood draw were satisfied. RR 37–43. At no point during the

hearing did he attack the legitimacy of the statute as a basis for taking blood in the

absence of a warrant.

      In order for a defendant to preserve his complaint for appellate review, he

must present to the trial court a timely objection, request, or motion stating the

specific grounds for the ruling he wishes. TEX. R. APP. P. 33.1(a). An appellant’s

issue must correspond with the objection he made at trial. Broxton v. State, 909

S.W.2d 912, 918 (Tex. Crim. App. 1995). “‘An objection stating one legal theory

may not be used to support a different legal theory on appeal.’” Id. (quoting




                                          6
Johnson v. State, 803 S.W.2d 272, 292 (Tex. Crim. App. 1990)). This is true even

if the alleged error implicates constitutional guaranties. Id.

      “The purpose of requiring a specific objection in the trial court is twofold:

(1) to inform the trial judge of the basis of the objection and give him the

opportunity to rule on it; (2) to give opposing counsel the opportunity to respond to

the complaint.” Resendez v. State, 306 S.W.3d 308, 312 (Tex. Crim. App. 2009).

“[A] party must be specific enough so as to ‘let the trial judge know what he wants,

why he thinks himself entitled to it, and do so clearly enough for the judge to

understand him at a time when the trial court is in a proper position to do

something about it.’” Id. at 313.

      To decide whether a general complaint was sufficient to preserve error,

context must be considered. Id. “When the correct ground for exclusion was

obvious to the judge and opposing counsel, no forfeiture results from a general or

imprecise objection.” Id. On the other hand, “when the context shows that a party

failed to effectively communicate his argument, then the error will be deemed

forfeited on appeal.” Id.

      The arguments and evidence at the hearing were narrowly focused on

whether the information requirements of section 724.012(b)(3) were satisfied. The

constitutionality of a search pursuant to the statute was not called into doubt.

Looking to Lyssy’s written motion to suppress, he likewise did not specifically


                                           7
challenge the constitutionality of blood draws made under the statute’s authority.

CR 17–20. Although he did complain that the search was warrantless and

conducted in the absence of exigent circumstances, he did so in a general form:

      The warrantless stop and search of the Defendant and the automobile
      and Defendants’ personal property and the interrogation of Defendant
      by the police were void and illegal because they were conducted in the
      absence of exigent circumstances to stop the vehicle which Defendant
      was driving and search him and the vehicle.

(Emphasis supplied.) Considered in context, we conclude that this language was

not sufficient to inform the trial court and opposing counsel of a challenge to the

validity of searches under section 724.012(b). See id. at 312; cf. Buchanan v. State,

207 S.W.3d 772, 777 (Tex. Crim. App. 2006) (“[T]rial counsel’s allusions to

‘consent’ and ‘exigent circumstances’ do not necessarily or exclusively refer to

Chapter 14, so as to make it ‘obvious’ that the appellant was raising it in addition

to his purely constitutional claims.”).

      It is true that Lyssy’s appellate objection to the constitutionality of the

search hinges on his claim that exigent circumstances were absent. Still, this is not

sufficient to interpret Lyssy’s written motion to suppress as a challenge to the

constitutionality of searches pursuant to the statute. This is because “a complaint

that could, in isolation, be read to express more than one legal argument will

generally not preserve all potentially relevant arguments for appeal.” Resendez,

306 S.W.3d at 314. As the Court of Criminal Appeals has held, “Only when there


                                          8
are clear contextual clues indicating that the party was, in fact, making a particular

argument will that argument be preserved.” Id. The context of the motion to

suppress, as it developed at the hearing, demonstrates that Lyssy’s challenge was

based solely on a failure to observe the statute’s terms, not an attack on the

constitutionality of what it authorizes. See id. We conclude that Lyssy forfeited his

objection to the constitutionality of taking blood under section 724.012(b). See id.

at 316–17. As such, we assume, without deciding, the constitutionality of section

724.012(b) for purposes of this appeal. 1

II.   Reliability of information to justify blood draw

      Lyssy’s second argument is that even if section 724.012(b) is a

constitutional basis for a warrantless search, “the blood draw must still be excluded

because the information received by Officer Rivas had an error on its face making

it internally inconsistent and unreliable.” We review a trial court’s decision on a

motion to suppress using a bifurcated standard of review. Valtierra v. State, 310

S.W.3d 442, 447 (Tex. Crim. App. 2010). While we show “almost total deference”

to the trial court’s determinations of historical fact, we review its application of the

law of search and seizure to the facts de novo. Id. Since the trial judge in this case

1
      The dissent declares McNeely to be “inapplicable” on the merits. This is an
      unresolved issue. See, e.g., Aviles v. Texas, No. 13-6353, 2014 WL 102362
      (U.S. Jan. 13, 2014) (order vacating judgment and remanding case for
      reconsideration in light of McNeely).


                                            9
did not make express findings of fact, we will imply “the necessary fact findings

that would support the trial court’s ruling if the evidence (viewed in the light most

favorable to the trial court’s ruling) supports these implied fact findings.” State v.

Kelly, 204 S.W.3d 808, 819 (Tex. Crim. App. 2006). Ultimately, “[w]e will sustain

the trial court’s ruling if its ruling is ‘reasonably supported by the record and is

correct on any theory of law applicable to the case.’” Valtierra, at 447–48 (quoting

State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006)).

      The Transporation Code establishes that motor vehicle operators who are

arrested for DWI offenses are deemed to have consented, subject to the remainder

of the chapter, “to the taking of one or more specimens of the person’s breath or

blood for analysis to determine the alcohol concentration or the presence in the

person’s body of a controlled substance, drug, dangerous drug, or other substance.”

TEX. TRANSP. CODE ANN. § 724.011(a).2 Separate from the concept of implied

consent by drivers arrested on suspicion of DWI, the statute also requires an


2
      The dissent misreads the statute when it alleges that our holding “vitiates”
      the implied consent statute. As noted above, the consent that is “deemed” by
      the statute is triggered by the arrest for the DWI offense, and that deemed
      consent is not conditioned on two prior DWI convictions. See TEX. TRANSP.
      CODE ANN. § 724.011(a) (West 2011). The statute anticipates that despite
      this deemed consent, a person nevertheless may refuse the request of a peace
      officer to submit to the taking of a specimen. In that event, certain
      consequences result, including license suspension and confiscation. See, e.g.,
      id. § 724.032.


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officer to take a breath or blood specimen when “at the time of the arrest, the

officer possesses or receives reliable information from a credible source that the

person . . . on two or more occasions, has been previously convicted of or placed

on   community      supervision   for   [driving   while   intoxicated] . . . .”   Id.

§ 724.012(b)(3).3

      Lyssy does not challenge the credibility of TCIC/NCIC as a source of

information or the credibility of the League City Police Department dispatcher as a

conduit of TCIC/NCIC information to an officer in the field. What he does

challenge is the reliability of the information Rivas received from the dispatcher:

he asserts that it contained an error that made it internally inconsistent.

Specifically, Rivas was told that Lyssy had a conviction for “DWI Second

Conviction,” but he was not specifically informed of any other convictions for



3
      The officer’s possession or receipt of “reliable information from a credible
      source that the person . . . on two or more occasions, has been previously
      convicted of or placed on community supervision for [driving while
      intoxicated],” id. § 724.012(b)(3), is therefore significant not as a
      precondition for deemed consent, as suggested by the dissent, but instead
      because it is one of the conditions under which a peace officer “shall
      require” the taking of the specimen, even in the face of the person’s refusal
      to submit voluntarily. Id. § 724.012(b). Accordingly, the dissent’s
      suggestion that the court holds “that an officer’s subjective belief that an
      implied consent statute has been satisfied is sufficient to imply consent”
      completely misconstrues both the operation of the statute and our application
      of it, and we disavow that mischaracterization of our holding.


                                        11
driving while intoxicated. Lyssy thus argues that the information Rivas received

was patently inconsistent and therefore unreliable.

      Rivas testified that he relies on TCIC/NCIC for “any contact with a potential

subject,” that he has found information from the database to be credible and

reliable, and that “on a general basis,” he has had no problems with the accuracy of

the database. Any discrepancy inferred from the bare fact that Rivas was informed

of a “DWI Second Conviction” but not a first conviction for driving while

intoxicated did not necessarily render the information Rivas received from his

dispatcher unreliable.

      In Comperry v. State, an officer arrested the defendant for driving while

intoxicated and took him to jail. 375 S.W.3d 508, 510 (Tex. App.—Houston [14th

Dist.] 2012, no pet.). Once there, the officer obtained a TCIC printout for the

defendant. Id. The report listed two convictions for driving while intoxicated, one

in Harris County and one in Galveston County. Id. In reality, the defendant had

only been convicted once of DWI. Id. at 511. The event cycle for the Galveston

County matter recited that the defendant had been arrested for DWI. Id. at 510. It

then listed two convictions—one for obstructing a highway and one for DWI—but

the defendant actually had been convicted only of obstructing a highway. Id. The

defendant further argued that the information contained in the TCIC report

contained “facial irregularities” because the convictions were “the result of the


                                         12
same plea on the same date, in the same court, and under the same cause number.”

Id. at 516-17. The defendant argued that the irregularities should have alerted the

officer and spurred an investigation of the underlying facts. Id. Despite the trial

court’s finding that the information was “confusing and possibly incorrect in the

way it [was] displayed,” id. at 511, the court of appeals rejected the defendant’s

position. See id. at 517. It reasoned that the TCIC record “plainly reflected”

multiple convictions for driving while intoxicated and that an officer need not “so

closely examine a TCIC report before being entitled to rely on it.” Id.

      In the present case, Rivas was told by the dispatcher that Lyssy had a

conviction for “DWI Second Conviction.” As in Comperry, this information

implied multiple convictions for driving while intoxicated. See id. While the

information communicated to Rivas could be characterized as being incomplete

insofar as the dispatcher did not also mention a first conviction for DWI, Rivas did

not have to further investigate the information he received “before being entitled to

rely on it” in the field. See id.; see also State v. Terrazas, 406 S.W.3d 689, 694

(Tex. App.—El Paso 2013, no pet.) (“[L]aw enforcement investigating or

confirming criminal history is not a requirement under [the blood draw statute].”).4


4
      Like the court in State v. Flores, 392 S.W.3d 229 (Tex. App.—San Antonio
      2012, pet. ref’d), “we do not mean to suggest that information contained in
      the NCIC/TCIC is per se reliable.” Id. at 237. Nothing in our opinion should
      be taken to suggest the impropriety of a challenge to reliance on such

                                         13
      Later, with the benefit of additional information obtained by the time of the

hearing on the motion to suppress, Rivas testified that the report contained an error.

But nothing contained in the information received from TCIC/NCIC or in the

information communicated by the dispatcher to Rivas rose to the level of a glaring

contradiction that would undermine the general reliability of the information

coming from a source that has not been challenged on the basis of its credibility.

The trial court therefore reasonably could have concluded that the report’s

inclusion of a conviction specifically identified as “driving while intoxicated 2nd”

was not rendered facially unreliable simply because the report did not also

separately identify the preceding DWI conviction.

      We conclude that the record supports the conclusion that when Rivas heard

from his dispatcher that Lyssy had been convicted of “DWI Second Conviction,”

he possessed reliable information from a credible source that Lyssy had been

convicted twice of driving while intoxicated. See Terrazas, 406 S.W.3d at 694;

State v. Flores, 392 S.W.3d 229, 238 (Tex. App.—San Antonio 2012, pet. ref’d);

Comperry, 375 S.W.3d at 518. We therefore overrule Lyssy’s issue.




      information given an appropriate record. See id. (“[A] trial court must make
      the finding of reliability of the information based on the specific evidence
      presented.”).


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                                    Conclusion

      We affirm the judgment of the trial court.



                                             Michael Massengale
                                             Justice

Panel consists of Justices Keyes, Higley, and Massengale.

Justice Keyes, dissenting.

Publish. TEX. R. APP. P. 47.2(b).




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