             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                         NO. WR-77,695-02


                      EX PARTE RUDY ALVARADO GARCIA, Applicant


                  ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                  CAUSE NO. CR41780 IN THE 385TH DISTRICT COURT
                             FROM MIDLAND COUNTY


        Per curiam.

                                              ORDER

        Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the

clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte

Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of driving while

intoxicated and sentenced as a habitual felon offender to forty years’ imprisonment. The Eleventh

Court of Appeals affirmed his conviction. Garcia v. State, No. 11-13-00360-CR (Tex. App. —

Eastland, October 8, 2015) (not designated for publication).

        Applicant contends that his trial counsel rendered ineffective assistance because trial counsel

failed to file a motion to suppress evidence seized in a mandatory blood draw pursuant to Section

724.012(b)(3)(B) of the Texas Transportation Code. At the time of the offense on January 17, 2013,
                                                                                                       2

Section 724.012(b)(3)(B) allowed for the warrantless taking of blood from a person who had been

twice previously convicted of an offense relating to the operation of a motor vehicle while

intoxicated. The arresting officer in Applicant’s case testified specifically that he believed that the

Section 724.012(b)(3)(B) authorized a blood draw without consent or a warrant in these

circumstances.

        On April 17, 2013, the United States Supreme Court handed down its opinion in Missouri

v. McNeely, 569 U.S. 141 (2013), holding that the natural dissipation of alcohol in the bloodstream

does not constitute an exigency in every case sufficient to justify conducting a blood test without a

warrant, and emphasizing that whether a warrantless blood draw is reasonable must be determined

on a case-by-case basis looking at the totality of the circumstances. On November 26, 2014, this

Court held that a nonconsensual search of a DWI suspect's blood conducted pursuant to the

mandatory-blood-draw and implied-consent provisions in the Transportation Code, when undertaken

in the absence of a warrant or any applicable exception to the warrant requirement, violates the

Fourth Amendment. State v. Villarreal, 475 S.W.3d 784, 815 (Tex. Crim. App. 2014).

        Applicant’s trial took place on November 14, 2013, after the opinion in Missouri v. McNeely,

but before the opinion in State v. Villarreal. At the time of Applicant’s trial, trial counsel could have

filed a motion to suppress the results of Applicant’s blood alcohol content tests based on the holding

of McNeely. Trial counsel’s closing argument at guilt/innocence was as follows, in total:

        Your Honor, I would have no real argument. The Court has heard the evidence. Just
        point out the nature of the stop and what probable cause the officer had, and rely on
        the Court’s judgment.

There is no indication that trial counsel filed a pre-trial motion to suppress in this case, or that he

challenged the mandatory blood draw or the warrantless seizure in any way. Although the State
                                                                                                         3

argues that there was other evidence sufficient to prove that Applicant was driving while intoxicated

without the blood alcohol test results, the trial transcript indicates that the blood draw and the results

of the blood alcohol testing comprised the majority of the testimony at the guilt/innocence phase.

        Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington,

466 U.S. 668 (1984); Ex parte Patterson, 993 S.W.2d 114, 115 (Tex. Crim. App. 1999). In these

circumstances, additional facts are needed. As we held in Ex parte Rodriguez, 334 S.W.2d 294, 294

(Tex. Crim. App. 1960), the trial court is the appropriate forum for findings of fact. The trial court

shall order trial counsel to respond to Applicant’s claim of ineffective assistance of counsel.

Specifically, trial counsel shall state whether he was aware of the decision in Missouri v. McNeely

at the time of Applicant’s trial, and if so, whether he considered filing a motion to suppress the blood

alcohol test results on that basis. The trial court may use any means set out in TEX . CODE CRIM .

PROC. art. 11.07, § 3(d). In the appropriate case, the trial court may rely on its personal recollection.

Id.

        If the trial court elects to hold a hearing, it shall determine whether Applicant is indigent.

If Applicant is indigent and wishes to be represented by counsel, the trial court shall appoint an

attorney to represent Applicant at the hearing. TEX . CODE CRIM . PROC. art. 26.04.

        The trial court shall make findings of fact and conclusions of law as to whether the

performance of Applicant’s trial counsel was deficient and, if so, whether counsel’s deficient

performance prejudiced Applicant. The trial court shall also make any other findings of fact and

conclusions of law that it deems relevant and appropriate to the disposition of Applicant’s claim for

habeas corpus relief.

        This application will be held in abeyance until the trial court has resolved the fact issues. The
                                                                                                   4

issues shall be resolved within 90 days of this order. A supplemental transcript containing all

affidavits and interrogatories or the transcription of the court reporter’s notes from any hearing or

deposition, along with the trial court’s supplemental findings of fact and conclusions of law, shall

be forwarded to this Court within 120 days of the date of this order. Any extensions of time must

be requested by the trial court and shall be obtained from this Court.



Filed: August 22, 2018
Do not publish
