                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-14-00182-CR


BRIAN LEE GREEN                                                       APPELLANT

                                         V.

THE STATE OF TEXAS                                                          STATE


                                      ----------

          FROM THE 235TH DISTRICT COURT OF COOKE COUNTY
                      TRIAL COURT NO. 12-00163

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                DISSENTING MEMORANDUM OPINION1

                                      ----------

      I respectfully dissent to the majority’s opinion because I believe the State

proved that exigent circumstances justified the warrantless blood draw and,

therefore, that the trial court did not err by denying the motion to suppress.

Additionally, I believe that, even if the trial court had erred, the record does not




      1
       See Tex. R. App. P. 47.4.
show that appellant was harmed by the admission of the blood alcohol evidence.

Accordingly, I would address appellant’s remaining issues.

          State Proved Exigent Circumstances Justified Blood Draw

      Even post-McNeely and Villarreal, a warrantless seizure of a blood sample

may still be constitutionally permissible if justified by exigent circumstances, i.e.,

“when the exigencies of the situation make the needs of law enforcement so

compelling that a warrantless search is objectively reasonable under the Fourth

Amendment.”       Missouri v. McNeely, 133 S. Ct. 1552, 1558–60 (2013);

Schmerber v. California, 384 U.S. 757, 770–71, 86 S Ct. 1826, 1835–36 (1966)

(“Particularly in a case such as this, where time had to be taken to bring the

accused to a hospital and to investigate the scene of the accident, there was no

time to seek out a magistrate and secure a warrant.”); State v. Villarreal, No. PD-

0306-14, 2014 WL 6734178, at *9 (Tex. Crim. App. Nov. 26, 2014).2 McNeely

simply rejected a per se rule that the natural dissipation of alcohol in a person’s

blood as the body metabolizes the alcohol always constitutes exigent




      2
        While this appeal has been pending, the Court of Criminal Appeals
granted rehearing in Villarreal, but on December 16, 2015, it denied rehearing as
improvidently granted. This court has begun issuing opinions in appeals that
could have been affected by a different disposition in Villarreal. The disposition
of one of the opinions that I have authored, in State v. Swan, is governed solely
by Villarreal; in that case, the State told the trial court that it was not relying on
exigent circumstances as an exception to the warrant requirement, and the trial
court found that no exigent cirmstances existed. No. 02-14-00416-CR, 2016 WL
269328, at *3 & n.6 (Tex. App.––Fort Worth Jan. 21, 2016, no pet. h.).


                                          2
circumstances supporting a warrantless blood draw.       McNeely, 133 S. Ct. at

1560.

        The Supreme Court has instructed, “Subjective intentions play no role in

ordinary, probable-cause Fourth Amendment analysis.” Whren v. United States,

517 U.S. 806, 813, 116 S. Ct. 1769, 1774 (1996). In other words, even when

determining whether exigent circumstances existed to justify a warrantless

search, we employ an objective approach: “An action is ‘reasonable’ under the

Fourth Amendment, regardless of the individual officer’s state of mind, ‘as long

as the circumstances, viewed objectively, justify [the] action.’     The officer’s

subjective motivation is irrelevant.” Brigham City, Utah v. Stuart, 547 U.S. 398,

404, 126 S. Ct. 1943, 1948 (2006) (citations omitted) (quoting Scott v. United

States, 436 U.S. 128, 138, 98 S. Ct. 1717, 1723 (1978)). Thus, in determining

whether the trial court in this case could have properly found that exigent

circumstances justified the warrantless blood draw, our analysis “turns on an

objective assessment of the officer’s actions in light of the facts and

circumstances confronting him at the time, and not on the officer’s actual state of

mind at the time the challenged action was taken.” Maryland v. Macon, 472 U.S.

463, 470–71, 105 S. Ct. 2778, 2783 (1985) (citations omitted); O’Hara v. State,

27 S.W.3d 548, 551 (Tex. Crim. App. 2000).

        At the hearing on the motion to suppress, appellant urged that McNeely

governed the outcome, and the State argued, “This case is very different from

your average mandatory draw law, and your average DWI-Second because this


                                        3
is an intoxication assault case.      And this is a case that clearly falls under

Schmerber, where we do have exigent circumstances. And if we need to, we will

put on circumstances.” The trial court responded, “Yeah. I believe you need to

prove that if you’re able so, yeah, I’m ready to hear whatever evidence either

side wishes to offer.” Thus, the question of exigency was presented to the trial

court.

         Trooper Hellinger testified that he was dispatched to an accident on I-35 at

7:00 a.m. When he arrived, he saw appellant, who was “[v]ery excited and kind

of all over the place.” Babb was lying on the ground and receiving care from

EMS; she appeared to be in pain and was the more severely injured of the two.

Appellant told Trooper Hellinger that he had been driving the wrecked car, and to

Trooper Hellinger it appeared that the car had been driven straight into the back

end of a vehicle directly in front of it, without swerving. Trooper Hellinger did not

believe that appellant’s explanation of the accident was reasonable.

         Appellant appeared to be intoxicated and said his arm was hurting him.

Appellant told Trooper Hellinger that he wanted medical treatment for the rash on

his arm. Appellant had also told Trooper Hellinger that he had a prior injury to his

foot or leg; Trooper Hellinger said that prevented him from having appellant

perform the walk-and-turn and one-leg-stand tests.           According to Trooper

Hellinger, he also took appellant to the hospital because of that prior injury: “To

have him cleared to go into the jail, we have to have a medical clearance due to

the accident, due to him having a broken leg.”


                                           4
       Trooper Hellinger testified that only two troopers were on duty at the time

of the accident. Both of them were working the accident, and the only other

responding agency was the local fire department. The accident was blocking the

left lane of traffic on I-35.

       EMS transported Babb to North Texas Medical Center by ambulance.

Trooper Hellinger followed in his car with appellant. There was only one doctor

on duty at the hospital’s emergency room. The doctor treated Babb first, so it

was around 9:30 or 10:00 a.m. before the doctor saw appellant.             Babb was

ultimately transferred to John Peter Smith Hospital in Fort Worth via CareFlite.

       According to Trooper Hellinger, the procedure for attempting to obtain a

warrant for a blood draw at the time was as follows:

       If we had a refusal from the DIC-24, we’d bring them to the jail, and
       in a controlled environment, and I would bring him in there with me,
       have him sit down -- him or her sit down, and I would watch him
       while . . . filling out the blood search warrant affidavit. And then I
       would fax it from the jail, I would have it notarized by the jailers, and
       then have it faxed to the judge. And then he would in turn fax it back
       to me at the jail. And then I would leave the jail and go to the
       hospital for the blood draw if it was signed.

He confirmed that the same procedure applied even when he was working an

accident with two injured passengers, one of them with severe injuries. When

asked what the earliest time would have been for him to employ this procedure,

Trooper Hellinger said that he booked appellant into the jail at 11:00 a.m. the

morning of the accident. He thought that the evidence would have “changed

significantly” by that time.



                                          5
      On cross-examination, Trooper Hellinger explained that he had to stay with

appellant while appellant was being treated at the hospital because appellant

was in custody.    When asked whether he just did not think about getting a

warrant because of the existence of the statute, Trooper Hellinger answered,

“Due to the facts, yes, the statute, yes, sir, and having the circumstances, I really

could not -- I couldn’t time-wise.” Trooper Hellinger admitted that he knew a

judge could issue a warrant based on a handwritten affidavit, faxed affidavit, or

both; he also agreed when asked if he could have dictated an affidavit over the

phone to “headquarters,” but he qualified that the DPS headquarters are in

Austin. He also testified that the hospital had a fax machine and probably would

have made it available to him, but he did not know at the time that a notary was

available there.

      This case is unlike those in which other courts of appeals have determined

that exigent circumstances did not justify a warrantless blood draw because the

officer never tried to get a warrant and, thus, there was no evidence that the

officer could not have taken steps to obtain a warrant expeditiously. See, e.g.,

Burcie v. State, No. 08-13-00212-CR, 2015 WL 2342876, at *3 (Tex. App.––El

Paso May 14, 2015, pet. filed) (not designated for publication); Bowman v. State,

No. 05-13-01349-CR, 2015 WL 557205, at *11 (Tex. App.––Dallas Feb. 10,

2015, no pet.) (not designated for publication); Cole v. State, 454 S.W.3d 89, 103

(Tex. App.––Texarkana 2014, pet. granted); Douds v. State, 434 S.W.3d 842,

855–56 (Tex. App.––Houston [14th Dist.] 2014) (en banc op. on reh’g), rev’d, 472


                                         6
S.W.3d 670 (2015) (holding that appellant did not preserve Fourth Amendment

complaint); Weems v. State, 434 S.W.3d 655, 666 (Tex. App.––San Antonio

2014, pet. granted).3 The McNeely court specifically noted,

      [T]he fact that a particular drunk-driving stop is “routine” in the sense
      that it does not involve “‘special facts,’” such as the need for the
      police to attend to a car accident, does not mean a warrant is
      required. Other factors present in an ordinary traffic stop, such as
      the procedures in place for obtaining a warrant or the availability of a
      magistrate judge, may affect whether the police can obtain a warrant
      in an expeditious way and therefore may establish an exigency that
      permits a warrantless search. The relevant factors in determining
      whether a warrantless search is reasonable, including the practical
      problems of obtaining a warrant within a timeframe that still
      preserves the opportunity to obtain reliable evidence, will no doubt
      vary depending upon the circumstances in the case.

McNeely, 133 S. Ct. at 1568 (emphasis added) (citation omitted).

      Here, Trooper Hellinger testified about the procedure for obtaining a

warrant in 2012 when the accident occurred, which involved taking the suspect to

jail first, where a notary would be available. Trooper Hellinger said that not only

      3
       The State has not relied on the existence of fact-specific exigent
circumstances in most of the post-McNeely cases this court has considered and
handed down. Bowyer v. State, No. 02-13-00315-CR, 2015 WL 1120332, at *2
(Tex. App.––Fort Worth Mar. 12, 2015, pet. ref’d) (mem. op., not designated for
publication); Lewis v. State, No. 02-13-00416-CR, 2015 WL 1119966, at *2 (Tex.
App.––Fort Worth Mar. 12, 2015, pet. ref’d) (mem. op., not designated for
publication); Chidyausiku v. State, 457 S.W.3d 627, 631, 632 & n.1 (Tex. App.––
Fort Worth 2015, pet. filed); Burks v. State, 454 S.W.3d 705, 708 (Tex. App.––
Fort Worth 2015, pet. ref’d). In the one case in which we have considered and
handed down an opinion discussing exigent circumstances, the trial court
granted the motion to suppress, and the officer testified that he had both the time
and availability to obtain a warrant but did not do so in reliance on Transportation
Code section 724.012(b)(2). State v. Taylor, No. 02-14-00456-CR, 2015 WL
4504806, at *3 (Tex. App.––Fort Worth July 23, 2015, pet. filed) (mem. op., not
designated for publication).


                                         7
did appellant ask to go to the hospital for treatment of the rash on his arm,

Trooper Hellinger could not book appellant into the jail without first obtaining

medical clearance for his prior injury. Trooper Hellinger did not know he could

obtain a notary at the hospital, and he did not leave appellant while appellant was

in custody at the hospital. There were only two officers on duty at the time.4

      Based on the above, I believe that in this case the State shouldered its

burden to prove that, in light of the facts and circumstances known to Trooper

Hellinger at the time of the investigation, he could have reasonably believed that

the delay involved in obtaining a warrant necessitated a warrantless blood draw

and, thus, that the trial court did not err by denying the motion to suppress. See

Schmerber, 384 U.S. at 770–71, 86 S. Ct. at 1835–36; cf. Pearson v. State,

No. 13-11-00137-CR, 2014 WL 895509, at *3–4 (Tex. App.––Corpus Christi

Mar. 6, 2014, pet. ref’d) (mem. op., not designated for publication) (holding, post-

McNeely, that exigent circumstances justified warrantless blood draw when only

one DPS officer was on duty, that officer arrived at hospital where defendant had

been taken six hours after accident first occurred, defendant still appeared

intoxicated, and officer testified that it would have taken at least three hours to

obtain a warrant on a Sunday).




      4
        Moreover, Trooper Hellinger testified at trial that the traffic was very heavy
and that he had to contact the other trooper working the accident to investigate
the truck that was hit.


                                          8
               Appellant Cannot Show Harm Even if Trial Court
                   Erred by Denying Motion to Suppress

      I also dissent to the majority opinion because I believe that even if the trial

court had erred by denying the motion to suppress, on the unique facts of this

case, there was no harm.

      It is unnecessary to cite the numerous cases from the intermediate courts

of appeals in which petitions for discretionary review have either been filed or

granted and are currently pending at the court of criminal appeals regarding

these Villarreal-motion-to-suppress errors; overwhelmingly, the courts of appeals

have held that error in denying similar motions to suppress was harmful in light of

the less stringent standard for assessing harm in cases involving constitutional

error. See Tex. R. App. P. 44.2(a) (“If the appellate record in a criminal case

reveals constitutional error that is subject to harmless error review, the court of

appeals must reverse a judgment of conviction or punishment unless the court

determines beyond a reasonable doubt that the error did not contribute to the

conviction or punishment.”).

      Most of those cases involve facts in which intoxication was the sole or

most hotly contested issue.      Here, the primary issue at trial was whether

appellant was driving the car or whether Babb was.          Although appellant did

contest the element of intoxication, the defense did not even argue about

whether appellant was intoxicated during closing argument, instead focusing on




                                         9
the “physical evidence” supporting a conclusion that Babb was driving and

placing blame for the accident on the truck driver.

      We are to evaluate the entire record when determining whether harm

occurred. Coble v. State, 330 S.W.3d 253, 280 (Tex. Crim. App. 2010), cert.

denied, 131 S. Ct. 3030 (2011). The record shows the following.

      During voir dire, the State explained to the jury that it could prove

intoxication by any one of three means:

            In an intoxication case, such as this, there are three different
      ways to prove intoxication. You prove someone has lost the normal
      use of their mental faculties by reason of the introduction of alcohol.
      You prove they’ve lost the normal use of their mental faculties, so
      mental or physical faculties two ways to prove it, lost the normal use
      because of the introduction of alcohol. And a third way is you show
      that they have an alcohol concentration of 0.08 or greater by
      whatever was measured, whether it’s breath or blood or urine.

             Now, I told you we’d have to show you someone lost the
      normal use of mental or physical faculties or that they had a 0.08
      blood-alcohol content or alcohol content by measurements. We only
      have to prove one of those ways to you, as a juror. If we prove to
      you someone was intoxicated because they had lost the normal use
      of mental faculties, that’s good enough. If we prove they lost the
      normal use of their physical faculties and you believe that -- and this
      is all if you believe it beyond a reasonable doubt -- then that’s
      enough.

The State then proceeded to question the panel about the loss of faculties but

not blood alcohol evidence. The State discussed with one of the jurors what the

loss of normal faculties means. The defense did voir dire the jury about both

types of intoxication and whether the panel would be able to disregard results




                                          10
from a test if there was reasonable doubt about whether it had been performed

properly.

       The evidence at trial showed that when Trooper Hellinger arrived at the

accident scene, appellant was “very excited” and “worked up”; slurring his

speech; smelled of a strong odor of an alcoholic beverage; had red, glazed,

glassy, bloodshot eyes; was unsteady; and kept repeating that the vehicle “had

no lights on it whatsoever.” Nothing about the conditions appeared to justify to

Trooper Hellinger the kind of accident appellant described. Appellant’s car had

“extensive damage,” including a broken front axle, and both airbags had

deployed. Appellant denied that he had been drinking. Both troopers testified

that appellant was given a portable breath test, but they did not reveal the results

to the jury. The EMT who tended to appellant testified that appellant smelled

“similar to alcohol” and that appellant told him he had been drinking.

       Appellant showed six clues of intoxication during the horizontal gaze

nystagmus test. On the way to the hospital, appellant kept falling asleep “or

passing out.” Appellant thought it was around 2:00 or 3:00 a.m. instead of 7:00

a.m.

       The State also played a video of appellant at the scene and in the police

car. Although the video does not show appellant stumbling, swaying, or unable

to walk––and the sound is not good because of the road noise––the jury could

have heard and assessed appellant’s speech. Trooper Hellinger can be heard

telling the medics what appears to be, “He’s gonna be intoxicated.” Additionally,


                                        11
the video clearly shows appellant in the passenger seat on the ride to the

hospital; appellant has trouble keeping his eyes open and appears dazed and

slow to react.

      Babb was transported to the hospital first and treated there first; when she

arrived at the hospital in Gainesville, she was in severe pain. She also “had

contusions, bruising to the stomach and to the lower chest, as well as seat belt

abrasion across her lap[,] . . . . [a]nd she had fairly significant trauma to her

abdomen.” A CAT scan showed “a significant amount of blood . . . in the area

around her spleen,” which indicated possibly life-threatening internal bleeding.

One of her injuries was a perforated bowel.

      Although Babb denied that appellant was intoxicated, she did admit that

they had two beers earlier the night before the accident while they were still in

Fort Worth.5 Trooper King testified that Babb smelled of an alcoholic beverage

when he spoke to her at the scene of the accident. She told him that she and

appellant had been drinking at her house but not at the casino. Most of the

State’s questioning of Babb focused on why she did not tell anyone she was the

driver until a year after the accident.

      Trooper King did not find any skid marks at the accident scene or any

other indication that the driver had tried to slow down before hitting the truck.


      5
      Appellant and Babb had gone out in Fort Worth the night before the
accident, spent some time at Babb’s house, and then drove to Winstar Casino in
Oklahoma. They were returning to Fort Worth when the accident occurred.


                                          12
Trooper King also observed the back-end damage on the truck and interviewed

the driver. He determined the truck’s rear taillights and “ID light” were working

but that the brake lights were not. The truck also had the proper type of reflective

tape across the back bumper that is required by the federal government.

      The State did spend most of one morning eliciting testimony about the

blood draw.6 The forensic analyst testified about the rate at which alcohol is

absorbed and eliminated in the bloodstream.        The defense thoroughly cross-

examined each of the witnesses about the method of collection and testing of the

blood sample. The defense also recalled Trooper Hellinger and the phlebotomist

who performed the blood draw to question them about how many times they

rotated the blood sample. The remaining defense witnesses testified regarding

whether appellant was the driver or passenger.

      The State argued the following during closing:

             What about intoxication? Well, we know that that’s usually the
      issue in a case like this. Was he intoxicated or not?

            You know, I’m sure you-all are I -- I like Cooke County juries,
      because you-all are -- know how the cow ate the cabbage. You
      know where chickens -- where chickens come from, and you know
      where eggs come from, and you got a lot of common sense. And
      I’m sure every one of you has seen an intoxication -- an intoxicated
      person before, and knows one when they see it.

            You guys watched that video. And of course, the quality of the
      video on that huge screen is not like it is when you watch it on a
      smaller screen. If you need to, you can take all of this evidence


      6
       Guilt-innocence lasted a little over two days.


                                        13
back into that room with you, and you can watch it. So you can see
it better on the little screen if you need to.

      You watch his eyes, the blinking, the excessive blinking of Mr.
Green’s eyes. And the head, the head nodding off. He couldn’t
even stay awake on I-35, as he’s being taken to jail. And think about
it. Handcuffed behind himself in a squad car, how comfortable is
that being taken to jail?

      Which one of you-all would be falling asleep if you were sober,
being -- or being taken to the hospital with your hands handcuffed
behind you in a squad car?

       Especially, if your girlfriend is very seriously injured, and is in
an ambulance in front of you. And then you see the ambulance
pulling into the hospital. What’s he doing when the ambulance is
pulling in? (Nods head.)

      Would you want to get into a car with somebody who was in
that condition, driving in that condition? Would you want that driver
on the highway any place close to you? Of course, not.

       You didn’t need to hear what the blood tests results were to
know that that man is intoxicated, because you-all have that kind of
common sense, and you-all have those life experiences. But we
didn’t stop there.

       We brought you the blood draw. So intoxication and -- well,
and then when we brought you the blood draw, boy, did you see the
rabbit trails and the smoke screens start up. They didn’t want that
blood test. They didn’t like that blood test. A .173, woo. You know,
when the legal limit is .08, that’s over twice the legal limit to be
driving.

      All that about how many times the tube got rotated to get the
anticoagulant mixed into the blood. And you know what that does?

       That makes sure the blood doesn’t clump up so that it can be
tested correctly. And if they don’t do it right, they don’t get a good
sample when it gets to the lab so they can’t test it. So they can’t test
it correctly. And so the chemist at the lab knows if they get a bad
sample, he can’t test it, because it hasn’t been mixed with the
anticoagulant correctly.


                                   14
              Well, you heard the little gal from the hospital, Ms. Stutts, she
      couldn’t tell you whether she did it six or eight times or five times.
      Trooper Hellinger told you that he knows that’s important. That on
      top of what she did, he rotated it five times, so he made sure it got
      rotated at least ten times, which is above the protocol, to make sure
      that it was mixed good, mixed well.

            So, then it gets to -- it gets to the DPS Lab, and it’s tested
      there by a qualified chemist.        You heard him under cross-
      examination. He could answer every question. He did the test not
      once, he did it twice. And he got a result of .173, which shows
      excessive intoxication. And he had no problem with the sample. It
      was in appropriate condition.

            And then what did -- what happened with that blood? Who
      was it released to? It was released to Dr. Gary Wimbish? And
      who’s Dr. Gary Wimbish? A representative of who? Mr. Green.
      He’s a representative of the Defense. Dr. Gary Wimbish. And if Dr.
      Gary Wimbish would have had anything to say about that blood
      sample, that it wasn’t an appropriate sample, or that it wasn’t a .173,
      you know who we would have heard on the stand testifying, Dr. Gary
      Wimbish --

            ....

              . . . What’s a reasonable deduction from the evidence that that
      wasn’t a good result, you would have heard about it, and you didn’t
      hear about it. So intoxication, that’s just another dead-end rabbit
      trail and you can cross that one off. Don’t get blinded by the smoke.

             So we get to the real gorilla in the room. And that is, who was
      driving this vehicle? [Emphasis added.]

      And in final rebuttal, the State continued to focus on the loss-of-use-of-

normal-faculties evidence:

             Now, I want to go over some of the evidence with you, but I’m
      not going to go down these smoke screen rabbit trails. You know,
      the -- a vial, was it expired? Well, they’re the ones that have it. And
      yet, they’re asking questions about it.           They asked cross-
      examination for over an hour on the man that analyzed the blood,


                                         15
      and they had it for testing. If it wasn’t what he said it was, they
      would have brought someone down to say it.

            The driver, that’s the one that’s always killed? Use your
      common sense. How many times you hear: The drunk walks away?
      The drunk walked away in this case, didn’t he?

             But let’s look at the defensive issue. The Defendant is not
      driving, but if the Defendant was driving he wasn’t intoxicated. But if
      he was driving and he was intoxicated, he didn’t cause a wreck. But
      if he was driving and he was intoxicated, he didn’t cause a wreck, he
      does cause serious bodily injury, that’s the defense.

             ....

            And then we have intoxication. What did Trooper Hellinger
      say? This man was unsteady on his feet. He had a strong smell of
      alcohol. He had glassy[,] red eyes --

             ....

             . . . slurred speech, that’s it.

             Folks, the blood test, 1.7. And if you look at the way it would
      have been an hour earlier, a .188 up to a .193, oh, he was not
      intoxicated, was he? He was drunk. That’s exactly what it is. And
      then you get to this defense, and I -- I don’t have time. But you
      know what the defense is.

      The charge instructed the jury on both statutory definitions of intoxication

and also included a charge on the lesser-included offense of driving while

intoxicated in addition to intoxication assault.

      Although the standard for assessing harm in cases with constitutional error

is less stringent than in nonconstitutional-error cases, and tends to tip the scales

in close cases, I do not believe that on these facts, in light of the record as a

whole, appellant was harmed by the admission of the blood alcohol evidence.



                                           16
      For these reasons, I respectfully dissent to the majority opinion and would

instead address appellant’s remaining three issues.



                                                 /s/ Terrie Livingston
                                                 TERRIE LIVINGSTON
                                                 CHIEF JUSTICE


DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: February 4, 2016




                                       17
