Reversed and Remanded and Majority and Concurring Opinions on Remand
filed June 25, 2015.




                                        In The

                     Fourteenth Court of Appeals

                                NO. 14-13-00208-CR

                    JONATHAN ALBERT LEAL, Appellant
                                          V.
                        THE STATE OF TEXAS, Appellee

                    On Appeal from the 122nd District Court
                           Galveston County, Texas
                       Trial Court Cause No. 12CR0947

   CONCURRING OPINION ON REMAND

      Appellant moved to suppress evidence of his blood-alcohol concentration by
challenging the legality of a traffic stop that eventually led to his arrest for driving
while intoxicated (DWI).      Appellant later amended his motion to suppress to
challenge the warrantless blood draw on Fourth Amendment grounds. On original
submission and over my dissent, this court reversed appellant’s DWI conviction
and remanded for a new trial. 1 Addressing an issue of first impression in this
court, the majority concluded that the trial court should have suppressed evidence
of appellant’s blood-alcohol content because law enforcement officers obtained the
evidence by means of a warrantless blood draw, which violated appellant’s Fourth
Amendment right to be free from unreasonable searches and seizures.2

      On its own motion, the Court of Criminal Appeals granted review of this
court’s decision, vacated the judgment, and remanded with instructions for this
court to address whether appellant preserved error on his claim that the warrantless
blood draw violated his Fourth Amendment rights. 3 On remand, the majority
concludes that appellant preserved error, that the trial court’s judgment should be
reversed, and that the case should be remanded for a new trial. I agree, but for
different reasons.

                              Preservation-of-Error Analysis

      Appellant preserved error by making a timely, specific complaint in the trial
court and securing an adverse ruling. 4 Specifically, appellant moved the trial court
to suppress evidence of his blood-alcohol content, identifying grounds for this
relief in a written motion to suppress. Before the suppression hearing, appellant
amended the motion to include additional grounds for relief. Though the parties’
arguments at the hearing focused on another ground in the motion, to preserve
error a movant need not discuss all the grounds at the hearing.5 All that is required


      1
       See Leal v. State, 452 S.W.3d 14, 32 (Tex. App.—Houston [14th Dist.] 2014), vacated,
456 S.W.3d 567 (Tex. Crim. App. 2015).
      2
          Id.
      3
          Leal v. State, 456 S.W.3d 567, 568 (Tex. Crim. App. 2015).
      4
       Thomas v. State, 408 S.W.3d 877, 882 (Tex. Crim. App. 2013); Fuller v. State, 827
S.W.2d 919, 928 (Tex. Crim. App. 1992).
      5
          Eisenhauer v. State, 754 S.W.2d 159, 160–61 (Tex. Crim. App. 1988), overruled on
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is specificity, timeliness, and an adverse ruling. The record establishes all three.

                                                Specificity

       Among the grounds for suppression appellant identified in the amended
motion is appellant’s assertion that the warrantless blood draw was taken pursuant
to a Texas statute that, as applied, violated the Fourth Amendment.6 The Court of
Criminal Appeals recognized that appellant’s amended motion contains a challenge
to the warrantless blood draw on Fourth Amendment grounds. 7 By including this
ground in his amended motion to suppress, appellant identified his Fourth
Amendment complaint with sufficient specificity to preserve error on the claim. 8


other grounds by Heitman v. State, 815 S.W.2d 681, 690 (Tex. Crim. App. 1991); Cisneros v.
State, 290 S.W.3d 457, 462–63 (Tex. App.—Houston [14th Dist.] 2009, pet. dism’d); Vicknair v.
State, 670 S.W.2d 286, 288 (Tex. App.—Houston [1st Dist.] 1983), aff’d, 751 S.W.2d 180, 187–
90 (Tex. Crim. App. 1988).
       6
           Appellant’s amended motion states:
                               Challenge to Mandatory Blood Draw
               The State is apparently relying on a blood draw taken without a warrant
       under Texas Transportation Code Sec. 724.011, as amended in 2009. The
       Amendment purports to provide that a mandatory blood draw may be taken where
       an officer has credible evidence that an individual has been previously convicted
       twice of DWI.
              The subject amendment to Sec. 724.011 is unconstitutional on its face and
       as applied, as a violation of the U.S. Constitution, Amd. VIII, which prevents
       unreasonable searches and seizures.
Appellant’s curious reference to the Eighth Amendment does not impact the
preservation-of-error analysis because it is apparent from the context that appellant meant
the Fourth Amendment. Although appellant stated that Section 724.011 violated the
Eighth Amendment, appellant’s argument was that taking a warrantless blood draw as
required by the statute violated his right under the United States Constitution to be free
from unreasonable searches and seizures, and this right is set forth in the Fourth
Amendment to the United States Constitution. See U.S. Const. amend. IV. The motion
contains no Eighth Amendment arguments, and the odd reference appears to be a
typographical error.
       7
           See Leal, 456 S.W.3d at 568.
       8
           See Thomas, 408 S.W.3d at 882.

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                                             Timeliness

       The record shows the following chronology of events relevant to the
preservation-of-error analysis:




At the time of the hearing, the only live motion pending before the trial court was
the amended motion to suppress. 9            The moment appellant filed the amended
motion, the original motion ceased to exist. In the context of legal pleadings and
motions, an amended instrument is a substitute for the original; the old and new
instruments do not co-exist—the latter takes the place of the former. This defining

       9
          In its opinion, the Court of Criminal Appeals stated that the suppression hearing
pertained to the original motion to suppress rather than the amended motion to suppress. Leal,
456 S.W.3d at 568. Nothing in the record suggests that appellant withdrew the amended motion
or that appellant refiled the original motion, or that appellant took any other action that might
arguably have brought the superseded motion back to life. The amended motion contained all of
the grounds asserted in the original motion as well as additional grounds. The suppression
hearing focused on a ground contained in the original motion, but at the time of the hearing the
original motion was a nullity, having been replaced by operation of law upon the filing of the
amended motion, which also contained the ground that was the focus of the hearing. See Steere
v. State, 445 S.W.2d 253, 253 (Tex. App.—Houston [1st Dist.] 1969, writ dism’d).

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feature of an amended motion distinguishes it from a supplemental motion, which
is an addition rather than a replacement.10                 Because the amended motion
superseded and supplanted the original motion,11 the original motion could no
longer be considered. 12 Thus, when the trial court denied the motion to suppress,
the trial court denied the only pending motion—appellant’s First Amended Motion
to Suppress.13 In that motion appellant raised the claim this court adjudicated on
original submission. The trial court denied the motion at the suppression hearing
during trial, before admitting the blood-alcohol evidence.                  Thus, appellant’s
objection was timely.

                                           Adverse Ruling

       At the end of the suppression hearing, the trial court denied the pending
motion to suppress, which was the amended motion, thus rejecting all grounds
contained in that motion.           Even though arguments at the hearing focused on
another ground for suppression of the blood-alcohol evidence, appellant preserved
error on all grounds contained in the amended motion, including the Fourth
Amendment ground he now asserts on appeal. To preserve error, it was not


       10
          A supplemental motion is an addendum to the original motion. Cf. Tex. R. Civ. P. 62–
65. See also BLACK’S LAW DICTIONARY 1438, 1439 (6th ed. 1990) (defining “supplemental” as
“That which is added to a thing to complete it,” and noting that supplemental affidavits, answers,
complaints, and pleadings, add to the original). But, an amended motion is a substitute—a
replacement—for the original. See Riney v. State,28 S.W.3d 561, 565–66 (Tex. Crim. App. 2000)
(noting that once indictment was amended it became the “official” indictment in the case); see
also Eastep v. State, 941 S.W.2d 130, 132–33 (Tex. Crim. App. 1997)(holding that, in the
context of indictment, an amendment is an alteration to the face of the charging instrument which
affects the substance of the charging instrument), overruled on other grounds by Riney, 28
S.W.3d at 561.
       11
        Steere, 445 S.W.2d at 253; cf. Herrera v. State, 951 S.W.2d 197, 198–99 (Tex. App.—
Corpus Christi 1997, no pet.).
       12
            Steere, 445 S.W.2d at 253.
       13
            See id.

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necessary for appellant to argue that ground at the hearing. 14 At the conclusion of
the hearing, the trial court refused to suppress the evidence and denied the pending
motion (First Amended Motion to Suppress) in its entirety.               Thus, appellant
secured the requisite adverse ruling to preserve error.

                                      Absence of Waiver

       Though a party moving to suppress evidence may waive a ground contained
in the motion at the hearing on the motion, no such waiver occurred. At the
suppression hearing, appellant did not state or otherwise indicate that he was
waiving or withdrawing his constitutional challenge to the blood-draw statute. Nor
did appellant state that he was urging only the grounds that he argued or mentioned
at the suppression hearing. The State did not object to appellant’s amendment of
the motion to suppress, nor did the State argue that the trial court should not
consider appellant’s constitutional challenge to the blood-draw statute. Nor did the
trial court refuse to consider it.

       Though appellant did not devote argument to his constitutional challenge to
the blood-draw statute in his oral presentation to the trial court, the evidence
adduced at the suppression hearing included the following:

            1. when asked to voluntarily provide a blood sample, appellant refused
               to do so;
            2. Officer Hodges was required by the blood-draw statute to have a
               blood sample taken from appellant;
            3. appellant was taken to a hospital emergency room where a blood
               sample was taken;
            4. just before the blood draw, appellant stated that he wanted his attorney
               present during the blood draw; and
       14
        See Eisenhauer, 754 S.W.2d at 160–61; Cisneros, 290 S.W.3d at 462–63; Vicknair, 670
S.W.2d at 288.

                                            6
            5. appellant was “uncooperative during the blood draw.” 15

       During the suppression hearing, appellant’s counsel stated that the
prosecutor and he had agreed to first present evidence regarding the validity of the
stop and then present evidence regarding other issues. After the parties each
presented the validity-of-the-stop evidence, each side presented additional
evidence, and appellant argued that one or more of his statements that the State
wanted to use against him at trial were made after he requested a lawyer. No
further evidence was presented. Near the end of the hearing, as the lunch break
drew near, the trial court asked counsel if there was anything else “we need to talk
about right now.” Appellant’s counsel responded “No, not here.” To preserve
error, however, appellant was not required to talk about his constitutional challenge
to the blood-draw statute at the suppression hearing when appellant had presented
the ground by means of his written motion to suppress.16 Appellant’s counsel did
nothing at the suppression hearing sufficient to waive the challenge to the blood-
draw statute contained in the amended motion.

                                     Disposition of the Appeal

       On original submission, I concluded in a dissenting opinion that the


       15
          At one point, appellant’s counsel asked Officer Hodges how many people held
appellant down during the blood draw, and Officer Hodges answered “three.” Without striking
the testimony, the trial court then stated “Let’s not go there right now. I want to hear just Motion
to Suppress issues.” Appellant’s counsel did not respond to this statement and continued his
examination of the witness. It is not clear what the trial court meant by this comment. The trial
court may have meant that the number of people who held appellant down while his blood was
drawn over appellant’s objection was not relevant to any issue in the amended motion to
suppress, including the challenge to the mandatory blood-draw statute. Even presuming that the
trial court was expressing a belief that there was no issue in the amended motion to suppress
regarding the blood-draw statute, appellant’s counsel never expressed any agreement with this
belief.
       16
        See Eisenhauer, 754 S.W.2d at 160–61; Cisneros, 290 S.W.3d at 462–63; Vicknair, 670
S.W.2d at 288.

                                                 7
warrantless blood draw did not violate appellant’s right to be free from
unreasonable searches and seizures because appellant impliedly consented to the
blood draw under Texas Transportation Code section 724.012(b)(3)(B).17 After
this court issued its judgment, the Court of Criminal Appeals issued its opinion in
State v. Villarreal. 18 In Villarreal, the high court held that implied consent under
Texas Transportation Code section 724.012(b) “cannot substitute for the free and
voluntary consent that the Fourth Amendment requires.” 19 Since then, the Court of
Criminal Appeals has granted the State’s motion for rehearing in Villarreal, and
ordered the case resubmitted so that the high court could consider the arguments
presented by the State in its rehearing motion. To date, the Court of Criminal
Appeals has not withdrawn or changed its opinion or judgment in Villarreal, nor
has the court issued a new opinion or judgment. In this context, the Fourteenth
Court of Appeals still is bound by the majority opinion in Villareal. Under that
standing precedent, the trial court’s judgment in the case under review must be
reversed and the case remanded for a new trial. 20

                                            Conclusion

       The record shows that appellant made a timely, specific complaint that the
warrantless drawing of his blood violated his Fourth Amendment right to be free
from unreasonable searches and seizures, and secured an adverse ruling.
       17
         See Leal v. State, 452 S.W.3d 14, 32–40 (Tex. App.—Houston [14th Dist.] 2014),
vacated, 456 S.W.3d 567 (Tex. Crim. App. 2015).
       18
         See —S.W.3d—, No. PD-0306-14, 2014 WL 6734178 (Tex. Crim. App. Nov. 26, 2014)
(reh’g granted).
       19
            Id. at *11.
       20
          See Villarreal, —S.W.3d at —, 2014 WL 6734178 at *8–21; State v. Tercero, —
S.W.3d—, —, 2015 WL 1544519, at *2–6 (Tex. App.—Houston [1st Dist.] Apr. 2, 2015, no pet.
h.) (applying Villarreal as binding precedent after rehearing motion was granted by the Court of
Criminal Appeals in Villarreal).



                                               8
Appellant preserved error as to this complaint. Under binding precedent from the
Court of Criminal Appeals, this court must conclude that      appellant did not
impliedly consent for Fourth Amendment purposes to the blood draw under Texas
Transportation Code section 724.012(b)(3)(B) and that the warrantless blood draw
violated appellant’s Fourth Amendment rights. Thus, I respectfully concur in the
court’s judgment on remand.




                               /s/         Kem Thompson Frost
                                           Chief Justice

Panel consists of Chief Justice Frost and Justices Donovan and Brown (Brown, J.,
majority).

Publish — TEX. R. APP. P. 47.2(b).




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