                      PD-0071-15                                                 PD-0071-15
                                                                COURT OF CRIMINAL APPEALS
                                                                                 AUSTIN, TEXAS
                                                              Transmitted 2/13/2015 4:04:58 PM
                                                                Accepted 2/17/2015 3:00:09 PM
                                                                                  ABEL ACOSTA
                              No. 04-13-00754-CR                                          CLERK

                    TO THE COURT OF CRIMINAL APPEALS

                          OF THE STATE OF TEXAS


 JOSE ANGEL FLORES, JR.,                                               Appellant

 v.

 THE STATE OF TEXAS,                                                    Appellee



                         Appeal from Guadalupe County


                                  * * * * *

             STATE’S PETITION FOR DISCRETIONARY REVIEW


                                  * * * * *
February 17, 2015
                               LISA C. McMINN
                           State Prosecuting Attorney
                             Bar I.D. No. 13803300

                           STACEY M. GOLDSTEIN
                       Assistant State Prosecuting Attorney
                              Bar I.D. No. 24031632

                                 P.O. Box 13046
                              Austin, Texas 78711
                           information@spa.texas.gov
                           512-463-1660 (Telephone)
                               512-463-5724 (Fax)

                           Oral Argument Requested
           IDENTITY OF JUDGE, PARTIES, AND COUNSEL

*   The parties to the trial court’s judgment are the State of Texas and Appellant,
    Jose Angel Flores, Jr.

*   The trial judge was Hon. Frank Follis.

*   Counsel for the State at trial was Joe Buitron, 211 W. Court Street, Seguin,
    Texas 78155.

*   Counsel for the State before the Court of Appeals was Christopher M. Eaton,
    Guadalupe County Attorney, 211 W. Court Street, 3rd Floor, Seguin, Texas
    78155.

*   Counsel for the State before the Court of Criminal Appeals is Stacey M.
    Goldstein, Assistant State Prosecuting Attorney, P.O. Box 13046, Austin,
    Texas 78711.

*   Counsel for Appellant at trial was W. David Friesenhahn, 314 N. Austin Street,
    Seguin, Texas 78155.

*   Counsel for Appellant before the Court of Appeals was Susan Schoon, 118 S.
    Union Avenue, New Braunfels, Texas 78130.
                                       TABLE OF CONTENTS

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii-iii

STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . 1-2

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF PROCEDURAL HISTORY. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3-4

GROUNDS FOR REVIEW.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

1.      Is a warrantless, mandatory blood draw conducted pursuant to TEX.
        TRANS. CODE § 724.012(b)(3)(B)—the repeat offender provision—
        reasonable under the Fourth Amendment?

2.      Do the federal and state (TEX. CODE CRIM. PROC. art. 38.23) exclusionary
        rules require suppression when, at the time of the search, the warrantless
        blood draw was authorized by TEX. TRANS. CODE § 724.012(b)(3)(B) and
        binding caselaw?

ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5-10

PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

APPENDIX (Opinion of the Court of Appeals)




                                                         i
                                        INDEX OF AUTHORITIES

Cases

Aliff v. State, 627 S.W.2d 166 (Tex. Crim. App. 1982). . . . . . . . . . . . . . . . . . . . 6-7

Beeman v. State, 86 S.W.3d 613 (Tex. Crim. App. 2002). . . . . . . . . . . . . . . . . . . . . 6

New York v. Belton, 453 U.S. 454 (1981). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Boykin v. State, 818 S.W.2d 782 (Tex. Crim. App. 1991).. . . . . . . . . . . . . . . . . . . . 6

Davis v. United States, 131 S. Ct. 2419 (2011). . . . . . . . . . . . . . . . . . . . . . . . . 5, 7, 9

Douds v. State, PD-0857-14 (granted Sept. 17, 2014).. . . . . . . . . . . . . . . . . . . . . . . 5

Flores v. State, No. 04-13-00754-CR, 2014 Tex. App. LEXIS 13418 (Tex. App.—San
Antonio Dec. 17, 2014) (not designated for publication). . . . . . . . . . . . 2, 3 n.1, 3-4

Arizona v. Gant, 556 U.S. 332 (2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Holidy v. State, No. PD-0622-14 (granted Aug. 20, 2014; argued and submitted Jan.
14, 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

State v. Johnston, 336 S.W.3d 649 (Tex. Crim. App. 2011). . . . . . . . . . . . . . . . . . . 6

Karnev v. State, 281 S.W.3d 428 (Tex. Crim. App. 2009). . . . . . . . . . . . . . . . . . . . 6

Illinois v. Krull, 480 U.S. 342 (1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Miles v. State, 241 S.W.3d 28 (Tex. Crim. App. 2007). . . . . . . . . . . . . . . . . . . . . . . 9

Missouri v. McNeely, 133 S. Ct. 1552 (2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 7

Pesina v. State, 676 S.W.2d 122 (Tex. Crim. App. 1984). . . . . . . . . . . . . . . . . . . . . 7

Reeder v. State, No. PD-0601-14 (granted Aug. 20, 2014; argued and submitted Jan.
15, 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

                                                              ii
Rocha v. State, 16 S.W.3d 1 (Tex. Crim. App. 2000). . . . . . . . . . . . . . . . . . . . . . . . 9

Schmerber v. California, 384 U.S. 757 (1966). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Villarreal v. State, No. PD-0306-14, 2014 Tex. Crim. App. LEXIS 1898 (Tex. Crim.
App. Nov. 26, 2014, reh’g filed). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 5

Weems v. State, 2014 Tex. App. LEXIS 5109 (2014). . . . . . . . . . . . . . . . . . . 4, 4 n.2

Weems v. State, No. PD-0635-14 (granted Aug. 20, 2014; argued and submitted Nov.
17, 2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 n.3

Wehrenberg v. State, 416 S.W.3d 458 (Tex. Crim. App. 2013). . . . . . . . . . . . . 8 n.4

Wilson v. State, 311 S.W. 3d 452 (Tex. Crim. App. 2010). . . . . . . . . . . . . . . . . . . . 9

Statutes

TEX. CODE CRIM. PROC. art. 38.23. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-2

TEX. TRANS. CODE § 724.012(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 6

TEX. TRANS. CODE § 724.012(b)(3)(B). . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3 n.1, 8




                                                            iii
                              No. 04-13-00754-CR

                  TO THE COURT OF CRIMINAL APPEALS

                          OF THE STATE OF TEXAS


JOSE ANGEL FLORES, JR.,                                                  Appellant

v.

THE STATE OF TEXAS,                                                       Appellee



                         Appeal from Guadalupe County


                                   * * * * *

          STATE’S PETITION FOR DISCRETIONARY REVIEW

                                   * * * * *

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

     The State Prosecuting Attorney respectfully urges this Court to grant review.

              STATEMENT REGARDING ORAL ARGUMENT

       The State requests oral argument on Ground 2. This Court has not yet

addressed whether the federal and state (TEX. CODE CRIM. PROC. art. 38.23)

exclusionary rules require suppression when, at the time of the search, warrantless

blood draws were authorized by TEX. TRANS. CODE § 724.012(b) and binding


                                        1
caselaw. Discussion would assist the Court in determining (1) whether the federal

good-faith exception applies, and (2) whether the principles underlying the federal

good-faith exception also support a determination that the blood was not “obtained .

. . in violation” of the law. See TEX. CODE CRIM. PROC. art. 38.23.

                          STATEMENT OF THE CASE

      The trial court denied Appellant’s suppression motion that challenged the

warrantless draw of his blood under TEX. TRANS. CODE § 724.012(b)(3)(B) based on

the Supreme Court’s then-recent decision in Missouri v. McNeely, 133 S. Ct. 1552

(2013). After accepting Appellant’s no contest plea to misdemeanor driving while

intoxicated, the trial court found him guilty and sentenced him to ninety days’ in jail

and assessed a $1,000 fine. 4 RR 4; 5 RR 5.

                 STATEMENT OF PROCEDURAL HISTORY

      The court of appeals reversed the denial of Appellant’s motion to suppress.

Flores v. State, No. 04-13-00754-CR, 2014 Tex. App. LEXIS 13418 (Tex. App.—San

Antonio Dec. 17, 2014) (not designated for publication). The State did not seek

rehearing.




                                          2
                             STATEMENT OF FACTS

Blood Draw Evidence

       The court of appeals summarized the facts relating to the blood draw as follows:

       On November 3, 2009, at about 8:00 p.m., Flores was stopped for a traffic
       violation by Deputy Robert Williams and asked to provide a breath
       specimen. Flores refused. He was then arrested and placed inside Deputy
       Williams’s patrol vehicle. While en route to the jail, Deputy Williams
       called dispatch and asked that a background check be run on Flores.
       Deputy Williams was informed by dispatch that Flores had two prior
       convictions for DWI. Deputy Williams then took Flores to the medical
       center so that a blood sample could be taken from Flores pursuant to
       section 724.012(b)(3)(B) of the Texas Transportation Code. Deputy
       Williams did not obtain a warrant for the blood draw.1

Flores, 2014 Tex. App. LEXIS 13418, at *1-2.

Court of Appeals

       The court of appeals reversed the trial court’s suppression ruling. Relying on

this Court’s decision in Villarreal v. State, No. PD-0306-14, 2014 Tex. Crim. App.

LEXIS 1898 (Tex. Crim. App. Nov. 26, 2014, reh’g filed), the court held that the draw

violated the Fourth Amendment. Flores, 2014 Tex. App. LEXIS 13418, at *4-7.

Regarding the propriety of suppression, the State claimed that the blood was not

“obtained . . . in violation” of the law under Article 38.23 because, at the time of the

   1
     It was later determined that Appellant did not have two prior DWI convictions.
Flores, 2014 Tex. App. LEXIS 13418, at *2. The trial court granted Flores’ first
suppression motion on the basis that TEX. TRANS. CODE § 724.012(b)(3)(B) had been
violated. Id. at *2. The court of appeals reversed and remanded the case to the trial
court. Id. On remand, Appellant challenged the blood draw under McNeely. Id.
                                           3
draw, warrantless draws under Section 724.012(b)(3)(B) were lawful. Id. at *7-9.

The court, however, concluded that the statute does not dispense with the warrant

requirement; thus, blood obtained in the absence of a warrant or other recognized

exception to the warrant requirement violates the Fourth Amendment. Id. at *8.

Finally, citing its decision in Weems v. State, 434 S.W.3d 655, 666-67 (Tex.

App.—San Antonio 2014),2 the court declined to apply the good-faith exception to the

federal and state exclusionary rules. Flores, 2014 Tex. App. LEXIS 13418, at *9.

                             GROUNDS FOR REVIEW

1.       Is a warrantless, mandatory blood draw conducted pursuant to TEX.
         TRANS. CODE § 724.012(b)(3)(B)—the repeat offender provision—
         reasonable under the Fourth Amendment?

2.       Do the federal and state (TEX. CODE CRIM. PROC. art. 38.23) exclusionary
         rules require suppression when, at the time of the search, the warrantless
         blood draw was authorized by TEX. TRANS. CODE § 724.012(b)(3)(B) and
         binding caselaw?




     2
     Weems held that the good-faith exceptions recognized by the Supreme Court do
not apply to Texas’ exclusionary rule. 434 S.W.3d at 666-67.
                                          4
                                    ARGUMENT

1.       The draw was reasonable under the Fourth Amendment.

         The warrantless blood draw, conducted under Section 724.012(b)(3)(B), was

reasonable under Fourth Amendment jurisprudence. Review should be granted

because the same issue is pending on rehearing in Villarreal v. State, and in Holidy

v. State, No. PD-0622-14 (granted Aug. 20, 2014; argued and submitted Jan. 14,

2015), and Reeder v. State, No. PD-0601-14 (granted Aug. 20, 2014; argued and

submitted Jan. 15, 2015), and Douds v. State, PD-0857-14 (granted Sept. 17, 2014).3

2.       The federal and state exclusionary rules do not require suppression because
         police relied on binding law authorizing the search at the time it was
         conducted.

Federal Exclusionary Rule

         The Supreme Court has held that the good-faith exception to the Fourth

Amendment’s exclusionary rule applies when law enforcement, at the time of the

search, acted objectively reasonably by relying on (1) a statute, which was later

declared unconstitutional, or (2) binding judicial precedent, which was subsequently

overruled. Illinois v. Krull, 480 U.S. 342, 349-57 (1987) (statutes); Davis v. United

States, 131 S. Ct. 2419, 2428-34 (2011) (caselaw).

         The good-faith exception is applicable here. First, the police relied on the

     3
    Weems v. State, No. PD-0635-14 (granted Aug. 20, 2014; argued and submitted
Nov. 17, 2014), does not implicate the repeat offender provision.
                                           5
mandatory blood draw statute authorizing the search without a warrant. TEX. TRANS.

CODE § 724.012(b); see Beeman v. State, 86 S.W.3d 613, 615 (Tex. Crim. App. 2002).

At the time of the search, the statute was presumptively constitutional. See Karnev

v. State, 281 S.W.3d 428, 434 (Tex. Crim. App. 2009) (“Statutes are presumed to be

constitutional until it is determined otherwise.”). The statute, by its plain terms, does

not require police to obtain a warrant. To conclude otherwise conflicts with the rules

of statutory construction and this Court’s recognition that the statute implicitly

dispenses with the warrant requirement. See Boykin v. State, 818 S.W.2d 782, 785-86

(Tex. Crim. App. 1991) (courts are prohibited from adding to or subtracting from a

statute’s plain text); State v. Johnston, 336 S.W.3d 649, 660 (Tex. Crim. App. 2011)

(“Chapter 724 of the Texas Transportation Code, which contains Texas’ implied

consent statutes, governs the State’s ability to obtain a breath or blood sample from

a DWI suspect when there is no warrant.”) (citing Beeman, 86 S.W.3d 613 at 616).

      Second, the police could have reasonably relied on Texas precedent holding that

dissipation of alcohol from the blood stream constitutes exigency which, combined

with probable cause and a reasonable method of drawing blood, does not require a

warrant. In Aliff v. State, this Court upheld the warrantless blood draw from a DWI

suspect because there was probable cause to arrest, the draw was “unintrusive,” and

alcohol is “quickly consumed” and “would be lost forever.” 627 S.W.2d 166, 169-70



                                           6
(Tex. Crim. App. 1982); see also Pesina v. State, 676 S.W.2d 122, 123-27 (Tex. Crim.

App. 1984) (same). The Court concluded: “In the present case the exigency of rapidly

dissipating alcohol justified the search.” Id. Understanding Aliff as establishing a

dissipation exigency per se rule is not unreasonable because the need for probable

cause and the reasonableness of venipuncture blood draws were already settled by

Schmerber v. California. 384 U.S. 757, 768-71 (1966). Such a view was not

uncommon; McNeely acknowledged a nation-wide split of authority on the issue. 133

S. Ct. at 1558.

      But what about the fact that McNeely did not announce a new rule of law? The

Court’s decision makes clear that McNeely explained what Schmerber stood for all

along. Id. at 1559-61. However, that lower courts wrongly interpreted Supreme

Court authority does not bar the application of the good-faith exception. In Arizona

v. Gant, the Supreme Court recognized that many courts misconstrued New York v.

Belton, 453 U.S. 454 (1981), to create a bright-line entitlement rule to a vehicle search

after a recent occupant’s arrest, regardless of whether the passenger compartment is

within reach. 556 U.S. 332, 342-43 (2009).

      The issue in Davis v. United States was whether it is appropriate to apply the

exclusionary rule to a pre-Gant search that was, at the time of the search, permissible

under Eleventh Circuit precedent adopting the erroneous Belton “entitlement” rule.



                                           7
131 U.S. at 2424-28. According to the Court, because the officers complied with

binding caselaw at the time, their conduct was objectively reasonable. Id. at 2429.

Thus, the Court decided to apply the good-faith exception because the circumstances

did not involve police misconduct—the problem the exclusionary rule was developed

to deter. Id. at 2492, 2432.

        Here, the officer withdrew Appellant’s blood under the authority of a valid

statute and binding precedent. Therefore, applying the exclusionary rule would not

serve the rule’s purpose. For purposes of the Fourth Amendment, the good-faith

exception precludes suppression.

Texas’ Exclusionary Rule

        Contrary to the court of appeals’ determination, suppression is not required or

justified under Texas’ exclusionary rule either. Article 38.23 prohibits the use of

evidence “obtained . . . in violation” of the law.4 TEX. CODE CRIM. PROC. art.

38.23(a). Not every violation of the law is subject to exclusion under Article 38.23.

This Court has not applied the plain language of the statute and instead has read into

it a requirement that the violation be related “to the purpose of the exclusionary rule



    4
       As observed by Judge Price, the federal exclusionary rule’s “labels” (i.e.,
“exceptions”) do not apply to Article 38.23, though the overall concept and rationale
underlying them may be applicable. Wehrenberg v. State, 416 S.W.3d 458, 475-76
(Tex. Crim. App. 2013) (Price, J., concurring). The correct inquiry is, “Was the
evidence ‘obtained’ by virtue of the primary illegality.” Id. at 476.
                                           8
or to the prevention of the illegal procurement of evidence of crime.” Wilson v. State,

311 S.W. 3d 452, 459 (Tex. Crim. App. 2010). In Miles v. State, the Court held that

a person’s violation of traffic laws in order to make a citizen’s arrest did not implicate

Article 38.23, noting that “only those acts which violate a person’s privacy rights or

property interests are subject to the state or federal exclusionary rule.” 241 S.W.3d

28, 36, 46 (Tex. Crim. App. 2007). And in Rocha v. State, the Court held that Article

38.23 does not apply to evidence obtained in violation of the Vienna Convention

because the treaty is intended to protect nations; it does not create enforceable

individual rights. 16 S.W.3d 1, 18-19 (Tex. Crim. App. 2000).

      A similar suppression exemption should be recognized here because the primary

purpose of Article 38.23 is not furthered when a search was conducted pursuant to a

presumptively valid statute and case law interpreting it. Like the federal exclusionary

rule, the purpose of Article 38.23 is to deter police misconduct. Miles, 241 S.W.3d

at 36. Here, because the officer acted lawfully at the time of the search by relying on

a statute and binding precedent from this Court, the blood was not “obtained . . . in

violation” of the law. A decision overruling a law that was valid at the time of the

search should not operate retroactively for purposes of the remedy in Article 38.23.

See Davis, 131 S. Ct. at 2430-32 (distinguishing retroactive application from the

availability of the remedy of suppression).        In this case, there was no police



                                            9
misconduct to remedy.




                        10
                             PRAYER FOR RELIEF

      WHEREFORE, the State of Texas prays that the Court of Criminal Appeals

grant review and reverse the decision of the court of appeals.



                                        Respectfully submitted,

                                        LISA C. McMINN
                                        State Prosecuting Attorney
                                        Bar I.D. No.13803300


                                        /s/ STACEY M. GOLDSTEIN
                                        Assistant State Prosecuting Attorney
                                        Bar I.D. No. 24031632


                                        P.O. Box 13046
                                        Austin, Texas 78711
                                        information@spa.texas.gov
                                        512-463-1660 (Telephone)
                                        512-463-5724 (Fax)




                                         11
                      CERTIFICATE OF COMPLIANCE

      The undersigned certifies that according to the WordPerfect word count tool this

document contains 1,661 words, exclusive of the items excepted by TEX. R. APP. P.

9.4(i)(1).




                                       /s/ STACEY M. GOLDSTEIN
                                       Assistant State Prosecuting Attorney




                                         12
                          CERTIFICATE OF SERVICE

      The undersigned certifies that a copy of the State’s Petition for Discretionary

Review has been served on February 13, 2015, via certified electronic service provider

to:

Hon. Christopher M. Eaton
Guadalupe County Attorney’s Office
211 West Court Street, 3rd Floor
Seguin, Texas 78155
chris.eaton@co.guadalupe.tx.us


Hon. Susan Schoon
Zamora & Schoon, PLLC
118 S. Union Avenue
New Braunfels, Texas 78130
sschoon@zslawoffice.com



                                       /s/ STACEY M. GOLDSTEIN
                                       Assistant State Prosecuting Attorney




                                         13
APPENDIX
                                                1 of 100 DOCUMENTS

                       Jose Angel FLORES Jr., Appellant v. The STATE of Texas, Appellee

                                                 No. 04-13-00754-CR

                   COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO

                                             2014 Tex. App. LEXIS 13418


                                            December 17, 2014, Delivered
                                              December 17, 2014, Filed

NOTICE: PLEASE CONSULT THE TEXAS RULES
                                                                  On November 3, 2009, at about 8:00 p.m., Flores
OF APPELLATE PROCEDURE FOR CITATION OF
                                                             was stopped for a traffic violation by Deputy Robert
UNPUBLISHED OPINIONS.
                                                             Williams and asked to provide a breath specimen. Flores
                                                             refused. He was then arrested and placed inside Deputy
PRIOR HISTORY:           [*1] From the County Court at
                                                             Williams's patrol vehicle. While en route to the jail,
Law No. 2, Guadalupe County, Texas. Trial Court No.
                                                             Deputy Williams called dispatch and asked that a
CCL-10-0869. Honorable Frank Follis, Judge Presiding.
                                                             background check be run on Flores. [*2] Deputy
State v. Flores, 392 S.W.3d 229, 2012 Tex. App. LEXIS
                                                             Williams was informed by dispatch that Flores had two
9995 (Tex. App. San Antonio, 2012)
                                                             prior convictions for DWI. Deputy Williams then took
                                                             Flores to the medical center so that a blood sample could
DISPOSITION:       REVERSED AND REMANDED.
                                                             be taken from Flores pursuant to section
                                                             724.012(b)(3)(B) of the Texas Transportation Code.
                                                             Deputy Williams did not obtain a warrant for the blood
COUNSEL: For APPELLANT: Susan Lee Schoon,
                                                             draw. It was later determined that Flores did not, in fact,
Zamora & Schoon, PLLC, New Braunfels, TX.
                                                             have two prior convictions for DWI.
For APPELLEE: Christopher M. Eaton, Guadalupe                     This is the second time we have heard an appeal
County - Assistant Attorney, Seguin, TX.                     from a decision in the underlying cause. In the first
                                                             appeal, State v. Flores, 392 S.W.3d 229 (Tex. App.--San
JUDGES: Opinion by: Karen Angelini, Justice. Sitting:        Antonio 2012, pet. ref'd), the State appealed the trial
Catherine Stone, Chief Justice, Karen Angelini, Justice,     court's interlocutory order granting Flores's first motion
Rebeca C. Martinez, Justice.                                 to suppress, which had been based on a statutory
                                                             violation of section 724.012(b)(3)(B). We reversed the
OPINION BY: Karen Angelini                                   trial court's order, holding that Flores had not met his
                                                             burden of making a prima facie showing of a statutory
OPINION                                                      violation under section 724.012(b)(3)(B). On remand,
                                                             Flores filed a second motion to suppress based on the
MEMORANDUM OPINION                                           Supreme Court's recent decision in McNeely, arguing that
                                                             the mandatory blood draw violated his rights under the
    REVERSED AND REMANDED
                                                             Fourth Amendment.
    Jose Angel Flores Jr. appeals the trial court's denial
                                                                  On July 17, 2013, at the hearing on Flores's second
of his motion to suppress blood evidence, arguing his
                                                             motion to suppress, the trial court took judicial notice of
motion should have been granted pursuant to the
                                                             the testimony that was provided in the first suppression
Supreme Court's recent decision in Missouri v. McNeely,
                                                             hearing. Deputy Williams then provided additional
133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013). Because we
                                                             testimony. Deputy Williams testified [*3] that the
agree that Flores's motion to suppress should have been
                                                             normal business hours for the Guadalupe County offices
granted, we reverse the judgment of the trial court and
                                                             were 8:00 a.m. to 5:00 p.m. and that judges are not
remand the cause for a new trial.
                                                             readily available after hours. According to Deputy
                                                             Williams, there must be "special circumstances" before
BACKGROUND
                                                                                                                  Page 2
                                            2014 Tex. App. LEXIS 13418, *

an officer can attempt to locate a judge outside of normal   2014 WL 6734178, at *20. Thus, the court of criminal
business hours, and "to do that, [the officer] ha[s] to go   appeals "reject[ed] the State's assertion that a warrantless,
up [his] chain of command." Deputy Williams testified        nonconsensual blood draw conducted pursuant to those
that at that time, he would need to contact and notify his   provisions [of the Transportation Code] can fall under
supervisor, Sergeant Strauss, that he needed a warrant.      one of the established exceptions to the warrant
Deputy Williams testified that he did not attempt to         requirement." Id. The court of criminal appeals further
obtain a warrant to authorize the blood draw on Flores.      "reject[ed] the State's suggestion that such a search may
Deputy Williams explained that he did not believe he         be upheld under a general Fourth Amendment balancing
needed a warrant under section 724.012(b)(3)(B). On          test." Id.
cross-examination, Deputy Williams confirmed that his
department did, in fact, have procedures for obtaining a            1    When the trial court held its hearing on
warrant after normal business hours. After hearing all the          Flores's second suppression motion, it did not
evidence presented, the trial court denied Flores's second          have the benefit of this court's decision in Weems.
motion to suppress. Flores then pled guilty and now
                                                                  Alternatively, the State argues that a recognized
appeals the denial of his pre-trial motion to suppress.
                                                             exception to the Fourth Amendment's warrant
                                                             requirement applies in this case--exigent circumstances.
DISCUSSION
                                                             The State points to the testimony of Deputy Williams
     Flores argues that the warrantless blood draw           that the traffic stop occurred after normal business hours
performed on him violated his rights under the Fourth        and that before requesting a warrant, Deputy Williams
Amendment to the Constitution. For support, Flores relies    would have to go up his chain of command, which began
on the Supreme Court's [*4] decision in McNeely and          with Sergeant Strauss. We disagree with the State that
this court's decision in Weems v. State, 434 S.W.3d 655      this record supports exigent circumstances. Exigent
(Tex. App.--San Antonio 2014, pet. granted).1 In Weems,      circumstances "applies when [*6] the exigencies of the
434 S.W.3d at 665, we analyzed McNeely and concluded         situation make the needs of law enforcement so
that section 724.012(b)(3)(B) does not constitute a valid    compelling that a warrantless search is objectively
exception to the Fourth Amendment's warrant                  reasonable under the Fourth Amendment." McNeely, 133
requirement. The State recognizes the applicability of our   S. Ct. at 1558. The State had the burden below to prove
holding in Weems, but argues that we should reconsider       the warrantless search was reasonable pursuant to the
our holding in Weems. We need not do so, however, as         exigent circumstances exception under the totality of the
the Texas Court of Criminal Appeals recently held in         circumstances. See Amador v. State, 275 S.W.3d 872
State v. Villarreal, No. PD-0306-14, 2014 Tex. Crim.         (Tex. Crim. App. 2009); Gutierrez v. State, 221 S.W.3d
App. LEXIS 1898, 2014 WL 6734178, at *20 (Tex. Crim.         680, 686 (Tex. Crim. App. 2007).
App. Nov. 26, 2014), that "the provisions in the
                                                                  The only evidence presented at the hearing was from
Transportation Code do not, taken by themselves, form a
                                                             Deputy Williams, who confirmed that his department
constitutionally valid alternative to the Fourth
                                                             did, in fact, have procedures for obtaining a warrant after
Amendment warrant requirement." The court of criminal
                                                             normal business hours. His knowledge on these
appeals explained that "the Supreme Court's holding in
                                                             procedures was limited. Deputy Williams knew that he
McNeely makes clear that drawing the blood of an
                                                             had to contact his supervisor, but did not know what
individual suspected of DWI falls under the category of
                                                             occurred after he did so. Deputy Williams testified he
cases holding that 'a warrantless search of a person is
                                                             made no attempt to secure such a warrant by following
reasonable only if it falls within a recognized exception'
                                                             these procedures. Thus, this record is limited in its
to the warrant requirement." Villarreal, 2014 Tex. Crim.
                                                             testimony regarding "procedures in place for obtaining a
App. LEXIS 1898, 2014 WL 6734178, at *20 (quoting
                                                             warrant or the availability of a magistrate judge."
McNeely, 133 S. Ct. at 1558) (emphasis added). The
                                                             McNeely, 133 S. Ct. at 1568. It also does not reflect "the
court of criminal appeals emphasized that the McNeely
                                                             practical problems of obtaining a warrant within a
Court "explained that such an intrusion implicates an
                                                             timeframe that still preserves the opportunity to obtain
individual's 'most personal and deep-rooted expectations
                                                             reliable evidence." Id. We therefore conclude that this
of privacy.'" Villarreal, 2014 Tex. Crim. App. LEXIS
                                                             record does not show that under the totality of the
1898, 2014 WL 6734178, at *20 (quoting McNeely, 133
                                                             circumstances, the warrantless blood draw was [*7]
S. Ct. at 1558). According to the court of criminal
                                                             justified by the exigent circumstances exception to the
appeals, "[t]hese principles from McNeely--the
                                                             Fourth Amendment's warrant requirement. See Weems,
recognition of the [*5] substantial privacy interests at
                                                             434 S.W.3d at 666.
stake and the applicability of the traditional Fourth
Amendment framework that requires either a warrant or            As the State did not show that the warrantless blood
an applicable exception--apply with equal force to this      draw was reasonable under the Fourth Amendment,
case." Villarreal, 2014 Tex. Crim. App. LEXIS 1898,          Flores's second motion to suppress should have been
                                                                                                                   Page 3
                                             2014 Tex. App. LEXIS 13418, *

granted. After the trial court denied Flores's second          language contained within the provisions in the Texas
motion to suppress, he decided to plead guilty. We             Transportation Code "is silent as to whether a law-
cannot determine beyond a reasonable doubt that the trial      enforcement officer conducting a mandatory,
court's failure to grant his motion to suppress did not        nonconsensual search of a DWI suspect's blood is
contribute in some measure to the State's leverage in          required to first seek a warrant." Further, warrantless
obtaining Flores's guilty plea and thus to Flores's            seizures have always been impermissible under the
conviction. See TEX. R. APP. P. 44.2(a); Kennedy v. State,     Fourth Amendment unless founded on a recognized
338 S.W.3d 84, 102-03 (Tex. App.--Austin 2011, no pet.).       exception. See United States v. Robinson, 414 U.S. 218,
                                                               224, 94 S. Ct. 467, 38 L. Ed. 2d 427 (1973). In Villarreal,
     Finally, the State argues that even if we hold that
                                                               2014 Tex. Crim. App. LEXIS 1898, 2014 WL 6734178, at
Flores's rights under the Fourth Amendment were
                                                               *19, the court of criminal appeals emphasized that the
violated by the warrantless, nonconsensual blood draw,
                                                               Texas Legislature "may not restrict guaranteed rights set
the Texas exclusionary rule as enunciated in article
                                                               out in constitutional provisions." According to the court
38.23(a) should not apply. According to the State, the
                                                               of criminal appeals, "[t]o the extent [*9] the mandatory-
blood draw was not taken "in violation" of law. See TEX.
                                                               blood-draw statute may be interpreted as authorizing a
CODE OF CRIM. PROC. ANN. art. 38.23(a) (West 2005)
                                                               warrantless search that would violate a defendant's rights
("No evidence obtained by an officer or other person in
                                                               under the Fourth Amendment, it cannot do so." Id.
violation of any provisions of the Constitution or laws of
the State of Texas, or of the Constitution or laws of the           The State also argues the Texas exclusionary rule
United States of America, shall be admitted in evidence        and federal exclusionary rule should not apply because
against the accused on the trial of any criminal case.").      the officer relied on section 724.012(b)(3)(B) in good
The State [*8] argues that "it is indisputable that the        faith. We rejected this argument in Weems and in
state of the law on November 3, 2009, was that                 subsequent cases. See Weems, 434 S.W.3d at 666-67; see
warrantless blood draws made pursuant to section               also McNeil, 443 S.W.3d at 303; Fitzgerald v. State, No.
724.012(b)(3)(B) were permissible and was not seized in        04-13-00662-CR, 2014 Tex. App. LEXIS 8208, 2014 WL
violation of the law as it was understood on that day."        3747270, at *2 (Tex. App.--San Antonio July 30, 2014,
We disagree with the State. Section 724.012(b)(3)(B)           pet. filed).
does not explicitly authorize a warrantless search.
Weems, 434 S.W.3d at 666; see also McNeil v. State, 443        CONCLUSION
S.W.3d 295, 303 (Tex. App.--San Antonio 2014, pet.
                                                                    Because the warrantless blood draw violated Flores's
filed). It "does not address or purport to dispense with the
                                                               rights under the Fourth Amendment, his second motion to
Fourth Amendment's warrant requirement for blood
                                                               suppress should have been granted. We thus reverse the
draws." Weems, 434 S.W.3d at 666 (citation omitted). In
                                                               judgment of the trial court and remand for a new trial.
responding "to the contention that the Legislature has
clearly indicated its desire to create a new exception to          Karen Angelini, Justice
the warrant requirement," the Texas Court of Criminal
Appeals observed in Villarreal, 2014 Tex. Crim. App.               Do not publish
LEXIS 1898, 2014 WL 6734178, at *19, that the statutory
