                                  COURT OF APPEALS
                               EIGHTH DISTRICT OF TEXAS
                                    EL PASO, TEXAS
                                              §
 TROY SCOTT BURCIE,                                          No. 08-13-00212-CR
                                              §
                       Appellant,                                Appeal from
                                              §
 v.                                                           371st District Court
                                              §
 THE STATE OF TEXAS,                                       of Tarrant County, Texas
                                              §
                       Appellee.                               (TC # 1287926D)
                                              §

                                        OPINION

       This DWI case presents an issue which has percolated through the courts of appeals, and

which now has been resolved by the Texas Court of Criminal Appeals: can the State, consistent

with the Fourth Amendment to the U.S. Constitution, take an involuntary blood sample based

only upon the Texas implied consent statute?      TEX.TRANSP.CODE ANN. § 724.012(b)(West

2011). Following the Texas Court of Criminal Appeals recent answer to that question in State v.

Villarreal, No. PD-0306-14, 2014 WL 6734178 (Tex.Crim.App. Nov. 26, 2014, pet. granted),

we reverse the conviction below.

                                    FACTUAL SUMMARY

       The underlying facts are uncontested. Appellant was indicted for felony DWI, having

had two prior convictions. The indictment arose out of Appellant’s arrest on July 2, 2012.

Officer Reyes of the Fort Worth Police Department initiated a traffic stop when he observed
Appellant driving without headlights at 10:10 p.m. in the evening.1 Based on Appellant’s slurred

speech, bloodshot eyes, and the odor of alcohol, Officer Reyes performed a field sobriety test.

Appellant gave six of six positive clues for intoxication on the horizontal gaze nystagmus test;

eight of eight clues on the walk and turn test; and three of seven clues on standing on one leg

test. Appellant claimed at the time to have had “one beer with dinner.”

        The officer placed Appellant under arrest at 10:50 p.m. A pat down search turned up a

prescription pill bottle belonging to Appellant, but which contained a non-matching medication

identified as OxyContin. The officer transported Appellant to the City jail where a blood sample

was requested, but refused by Appellant. A criminal history check turned up two prior DWIs.

        Based on the two prior DWIs, and Section 742 of the Transportation Code, the officer

took Appellant to a local hospital where a blood sample was taken without his consent at 12:19

a.m. Officer Reyes’ testimony makes clear that the Transportation Code was the single basis for

obtaining the blood draw:

       Q. Okay. And is it your understanding that -- or tell me why you were going to
          get a blood specimen from him.

        A. Well, at that point he was -- he already had two prior convictions. He was
           arrested for DWI. So at that time we -- it’s a mandatory specimen. Even
           though he -- he did not want to provide one, we have to, by law at the time,
           get one from him, and that’s what we were doing.

        Q. Okay. And so you were following what you believed to be the law in
           requiring you to get a blood specimen?

        A. Yes, ma’am.

Fort Worth has a procedure in place to obtain a warrant during the late night hours, but Officer

Reyes did not utilize it because of Section 724 of the Transportation Code


1
  This case was transferred from our sister court in Fort Worth pursuant to the Texas Supreme Court’s docket
equalization efforts. See Tex. Gov’t Code Ann. § 73.001 (West 2013). We follow the precedents of the Fort Worth
Court to the extent they might conflict with our own. See Tex.R.App. P. 41.3.

                                                      2
       Appellant filed a motion to suppress the blood sample claiming that a warrantless blood

draw violated the Fourth Amendment, particularly in light of the U.S. Supreme Court’s recent

decision in Missouri v. McNeely, 569 U.S. ___, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013). The

State responded by arguing that the actual holding of McNeely was narrow and not at issue in

this case. It further asserted that a number of exceptions to the Fourth Amendment, including an

implied consent exception under the Transportation Code, the “special needs” exception, the

“search incident to arrest” exception, the automobile exception, and a cumulative “non-dualistic”

exception to the Fourth Amendment justified the officer’s actions. The trial court denied the

motion to suppress without findings of fact or conclusions of law.

       Appellant then entered a guilty plea, reserving the ruling on the suppression motion for

appeal. He was sentenced to two years in prison and assessed a fine. In a single issue, Appellant

contends the trial court abused its discretion in upholding the involuntary blood draw in light of

McNeely.    The State responds, as it did below, contending McNeely is inapplicable, and

justifying the involuntary blood draw on several exceptions to the Fourth Amendment: implied

consent, search incident to arrest, and the “cumulative, non-dualistic approach to exceptions and

reasonableness.”

                                           ANALYSIS

       The United States Supreme Court in Schmerber v. California, 384 U.S. 757, 86 S.Ct.

1826, 16 L.Ed.2d 908 (1966) held that an involuntary blood draw could pass Fourth Amendment

scrutiny. The court first acknowledged that taking blood from a person constituted a search and

seizure under the Fourth Amendment.         Id. at 767.   But the involuntary blood draw was

reasonable under the exigent circumstances exception to the Fourth Amendment based on three

facts established by the record in that case. Id. at 770-71. First, the court acknowledged that the



                                                3
percentage of alcohol in the blood begins to drop after a person stops drinking because the body

eliminates it from the system (thus causing the destruction evidence). Id. Second, there was

already a delay in taking the accused to the hospital because the officer had to investigate the

scene of the accident where the accused was found. Id. Finally, the Court states that there was

no time to seek out a magistrate and secure a warrant. Id. Noting these “special facts” the court

agreed the involuntary blood draw was appropriate. Id.

          The court revisited the involuntary blood draw issue in Missouri v. McNeely where the

State of Missouri contended that the singular fact that alcohol dissipates from the body was

sufficient by itself to create an exigent circumstance justifying a warrantless seizure of a

defendant’s blood. 133 S.Ct. at 1560. A plurality of the court disagreed. It rejected a per se

rule, instead reaffirming that whether the exigent circumstances exception is met must be judged

on the totality of circumstances on a case by case basis. Id. at 1561. The court also explicitly

stated that a warrantless blood draw must fall under one of the recognized exceptions to the

Fourth Amendment. Id. at 1558.

          The Texas courts of appeals grappled with whether Missouri v. McNeely invalidated non-

consensual blood draws taken under the Texas Transportation Code. The Code mandates blood

draws when an officer arrests a person for DWI and the person is either involved in an accident

involving serious injury or death, or that person has two or more prior convictions for DWI.

TEX.TRANSP.CODE ANN. § 724.012(b).2 The courts of appeals have uniformly rejected the


2
    Germane to this case, Section 724.012(b) provides:

(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...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:
                                                     .      .       .

                                                         4
State’s various arguments attempting to distinguish McNeely or apply other exceptions to work

around it. See Aviles v. State, 443 S.W.3d 291 (Tex.App.--San Antonio, 2014, pet. filed);

Sutherland v. State, 436 S.W.3d 28 (Tex.App.--Amarillo 2014, pet. filed); Douds v. State, 434

S.W.3d 842 (Tex.App.--Houston [14th Dist.] 2014, pet. granted); Weems v. State, 434 S.W.3d

655 (Tex.App.--San Antonio 2014, pet. granted); Holidy v. State, No. 06-13-00261-CR, 2014

WL 1722171 (Tex.App.--Texarkana Apr. 30, 2014, pet. granted)(mem. op., not designated for

publication).3

        Any remaining doubt about these issues was resolved by the Texas Court of Criminal

Appeals decision in State v. Villarreal, No. PD-0306-14, 2014 WL 6734178 (Tex.Crim.App.

Nov. 26, 2014, pet. granted). In Villarreal, an officer initiated a traffic stop and in questioning

the driver, found him to have slurred speech, red, watery eyes, and the strong smell of alcohol.

Id. at *1. The driver refused to take the standard field sobriety tests. Id. When a background

check showed the driver had several prior DWI convictions, the arresting officer took the driver

to a hospital for a blood draw, despite the driver’s non-consent. Id. at *2. The officer viewed the

Transportation Code as mandating the blood draw, and while he “could have” obtained a

warrant, he believed that the statute made a warrant unnecessary. Id. We view these facts as

indistinguishable from Appellant’s situation.

        The trial court in Villarreal held the blood draw improper. Id. at *3. The court of

appeals affirmed and the Texas Court of Criminal Appeals squarely confronted the State’s

implied consent argument under the Transportation Code. Id. at *6. It also addressed the State’s



(B) on two or more occasions, has been previously convicted of or placed on community supervision for an offense
under Section 49.04 [misdemeanor DWI] . . . .
3
  We note that the trial court here heard the motion to suppress on May 31, 2013 which was little more than a month
after McNeely was handed down, and the trial court did not have the benefit of any of the recent cases construing
McNeely and the Transportation Code.

                                                        5
alternative arguments that the automobile, search incident to arrest, and special needs exceptions

to the Fourth Amendment applied. Id. at *14-15. Lastly the court addressed the State’s claim

that a general Fourth Amendment balancing test could justify the involuntary blood draw. Id. at

*16. The Court rejected each of the State’s proffered basis for the blood draw, concluding:

        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.

Id. at *20.

        The only distinguishing feature between Villarreal and this case is that in Villarreal the

trial court granted the motion to suppress and here the trial court denied it. Under the applicable

standard of review, we do afford almost total deference to the trial court’s determination of the

historical facts that the record supports. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.

1997). When the trial court is not asked to make findings of fact and conclusions of law, we

view the evidence in the light most favorable to the trial court’s ruling and assume that the trial

court made implicit findings of fact that support its ruling as long as those findings are supported

by the record. Carmouche v. State, 10 S.W.3d 323, 328 (Tex.Crim.App. 2000). We also afford

the same amount of deference to a trial courts’ rulings on the application of the law to the facts--

so called mixed questions of law and fact--if resolution of those questions turns on an evaluation

of credibility and demeanor. Guzman, 955 S.W.2d at 89. But we review de novo “mixed

questions of law and fact” not falling within this category. Id. In Villarreal, for instance, the

Court of Criminal Appeals noted that it reviewed the trial court’s ruling de novo because the

underlying facts were not disputed. 2014 WL 6734178 at *10.

        In this case, there are also no disputed facts, at least none that would implicate any of the
                                                 6
Fourth Amendment exceptions raised by the State.                   Each of the exceptions to the Fourth

Amendment that the State urges in this case were expressly rejected by the Texas Court of

Criminal Appeals in Villarreal.4 Only the exigent circumstances exception was not at issue in

Villarreal, 2014 WL 6734178 *9. But none of the facts in this record supports the kind of

exigent circumstances that the U.S. Supreme Court found sufficient in Schrimer. Appellant was

detained in a traffic stop and not an accident as in Schrimer. He was transported to a hospital

less than two hours later for the blood draw. There was no indication that a magistrate judge was

not available to issue a warrant had Officer Reyes pursued one.

        We also note that following Villarreal, the Fort Worth Court of Appeals decided Burks v.

State, 454 S.W.3d 705 (Tex.App.--Fort Worth 2015, pet. filed) which overturned a trial court’s

denial of a motion to suppress. The defendant in that case, as here, was pulled over for a traffic

violation, found to have overt signs of intoxication, and was taken for an involuntary blood draw

because he had two or more prior convictions for DWI. Id. at 707. The officer believed the

implied consent provisions of the Transportation Code permitted the blood draw. Id. Based

on Villarreal, the Fort Worth Court reversed the trial court order denying the motion to suppress

and the conviction. Id. at 708. Burks is particularly instructive to us because in this transferred

case, we are bound to follow the precedents of the transferring court of appeals.                             See

TEX.R.APP.P. 41.3.

        We accordingly sustain Appellant’s single issue and we reverse the trial court’s order

denying Appellant’s motion to suppress and the trial court’s judgment of conviction, and remand

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

4
  One exception urged here, the “cumulative, non-dualistic approach to exceptions and reasonableness” appears to
us to be the same “general Forth Amendment balancing test” rejected by the Court of Criminal Appeals in
Villarreal. To the extent it is meant to be something different, the State’s one page presentation of that argument
here cites no cases establishing it as distinct exception under the Fourth Amendment. All of the other exceptions
advanced by the State are identically worded to those expressly rejected in Villarreal.

                                                        7
May 14, 2015
                                   ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rodriguez, and Hughes, JJ.

(Do Not Publish)




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