                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS


 ANA LICIA BRAVO,                                §
                                                                   08-14-00160-CR
                              Appellant,         §
                                                                    Appeal from the
 v.                                              §
                                                              County Criminal Court No. 2
 THE STATE OF TEXAS,                             §
                                                               of El Paso County, Texas
                              Appellee.          §
                                                                  (TC# 2012C07668)
                                                 §

                                           OPINION

       Ana Licia Bravo was charged and convicted for the offense of driving while intoxicated.

Prior to trial, Bravo filed a motion to suppress the results of a blood draw taken during the police

investigation of an automobile accident. The trial court overruled Bravo’s motion to suppress.

Finding that the State failed to establish any exception to the Fourth Amendment’s warrant

requirement and therefore violated Bravo’s rights under the Fourth Amendment, we reverse the

trial court’s judgment and remand the case for a new trial.

                                    FACTUAL SUMMARY

       On April 8, 2012, around 9:30 p.m., El Paso Police Officer Anthony Alegre responded to a

dispatch at a local bar regarding a vehicle that fled the scene of an automobile accident. At the

bar, Officer Alegre spoke with eyewitnesses to the accident that followed the fleeing vehicle from
the scene of the accident. The eyewitnesses pointed out the driver, Bravo, to Officer Alegre.

Based on the eyewitnesses’ account, Officer Alegre attempted to speak with Bravo while Bravo

was receiving medical attention at the bar parking lot. Officer Alegre testified that he smelled

alcohol on Bravo’s person while at the bar parking lot. An ambulance then transported Bravo to

Del Sol Medical Hospital in El Paso, Texas (“Del Sol”).

       El Paso Police Officer William Alexander had been dispatched to the scene of the accident

and, after conducting a preliminary investigation at the scene and speaking to Officer Alegre, went

to Del Sol to continue his investigation. Officer Alegre conducted standardized-field-sobriety

tests (“SFSTs”) on Bravo at Del Sol. The officers arrested Bravo after she failed the SFSTs.

After advising Bravo of her statutory and Miranda rights, the officers requested a blood specimen,

which Bravo refused. The officers testified that neither obtained Bravo’s consent to retrieve the

blood and that they did not apply for a warrant to obtain Bravo’s blood specimen. Officer Alegre

informed Bravo of the Transportation Code’s provisions giving rise to a mandatory blood draw if

an individual is involved in an accident with injuries. An on-duty phlebotomist thereafter

obtained a blood specimen from Bravo.

                              PROCEDURAL BACKGROUND

       Bravo filed a pretrial motion on December 7, 2012, to suppress the arrest, statements, and

electronic and physical evidence obtained during the officers’ investigation—including the blood

draw specimen and results. On April 9, 2013, the trial court heard testimony and arguments

regarding Bravo’s motion to suppress. At the hearing, Officer Alegre testified that after being

notified that others involved in the accident had been transported to the hospital, it was his

understanding that under the Transportation Code, Bravo was subject to a mandatory blood draw.


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       The trial court denied Bravo’s motion, and made the relevant Findings of Fact:

       7. The [trial court] finds that the officer detained the defendant that the witnesses
       pointed out as the driver who had fled the scene, that the officer smelled an odor of
       alcohol on her person;

                                 .               .               .

       10. The [trial court] finds that the defendant was placed under arrest and read the
       DIC-24 warnings and Miranda warnings;

       11. The [trial court] finds that Officer Alegre was advised that there were injuries
       at the first accident scene and that passengers were taken to the hospital. The
       officer requested a blood draw of the defendant[.]

       In addition, the trial court made the relevant Conclusions of Law:

       2. The [trial court] concludes that the specimen of the blood may be taken once
       the defendant was placed under arrest and the officer received information that the
       defendant was involved in an automobile accident and other individuals involved in
       the accident were transported to the hospital[.]


Bravo again raised the issue of the warrantless, non-consensual blood draw at trial and renewed the

motion to suppress the blood draw results in light of a then recent United States Supreme Court

ruling, Missouri v. McNeely, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013). The trial court again

denied Bravo’s motion. The State offered the blood draw results at trial over Bravo’s renewed

objection. Officer Alegre testified that the results showed that Bravo was over the legal limit to

operate a vehicle. In addition, Officer Alegre and Officer Alexander both confirmed that they did

not obtain a warrant to seize Bravo’s blood specimen and that they did not have Bravo’s consent to

draw the blood. At trial, Officer Alegre testified that he informed Bravo of the mandatory blood

draw provision under the Texas Transportation Code, and reaffirmed his reliance on the Code’s

applicability in conducting the blood draw upon Bravo.

       After the State rested its case, Bravo re-urged her arguments regarding the motion to

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suppress the blood draw specimen and results in light of McNeely, in addition to a then recent

Texas Court of Criminal Appeals case, State v. Villarreal, 475 S.W.3d 784 (Tex.Crim.App. 2014)

reh’g denied, 475 S.W.3d 817 (Tex.Crim.App. 2015)(per curiam), cert. denied, 136 S.Ct. 2544

(2016). The trial court again denied Bravo’s motion. Bravo now appeals the trial court’s

rulings.

                                                   DISCUSSION

         Bravo’s first issue is that in light of McNeely, the trial court erred in denying Bravo’s

motion to suppress the warrantless, non-consensual blood draw resulting from Bravo’s arrest for

driving while intoxicated.1 The State argues that McNeely decided the narrow issue of the Fourth

Amendment’s exigency exception, not applicable here, and requests that this Court find that the

trial court did not commit an error when it denied Bravo’s motions.

                                                     Standard of Review

         We review a trial judge’s ruling on a motion to suppress under a bifurcated standard of

review. Turrubiate v. State, 399 S.W.3d 147, 150 (Tex.Crim.App. 2013). First, the judge is the

sole trier of fact and judge of witnesses’ credibility and the weight to be given their testimony.

Valtierra v. State, 310 S.W.3d 442, 447 (Tex.Crim.App. 2010). When findings of fact are not

entered, we view the evidence in the light most favorable to the judge’s ruling and assume the

judge made implicit findings of fact that support the ruling as long as the record supports those

findings. Id. at 447. Second, we review a judge’s application of the law to the facts de novo.

Id. We will sustain the judge’s ruling if the record reasonably supports that ruling and is correct

on any theory of law applicable to the case.                      Id. at 447-48.        Lastly, when evidence is

1
  Appellant’s second issue is the trial court erred when it failed to instruct the jury to disregard the blood evidence if
they found the evidence was collected in violation of Article 38.23 of the Texas Code of Criminal Procedure.
Appellant’s first issue is dispositive in this appeal, therefore, we do not reach her second issue.
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unconstitutionally admitted, we must reverse the trial court’s judgment unless we determine,

beyond a reasonable doubt, that the error did not contribute to the conviction or punishment.

TEX.R.APP.P. 44.2(a).

                               The Fourth Amendment and Blood Draws

       Schmerber v. California established that an involuntary blood draw could pass Fourth

Amendment scrutiny. 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). The Supreme Court

first determined that taking a blood specimen from a person constituted a search and seizure. Id.

at 767, 86 S.Ct. at 1834. The Supreme Court found that an involuntary blood draw was

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

factors established in Schmerber: (1) the dissipation of alcohol in the blood; (2) the delay in

taking the accused to the hospital during an automobile accident investigation; and (3) the lack of

time to secure a magistrate and obtain a warrant. Id. at 770-71, 86 S.Ct. at 1835-36. The

Supreme Court revisited the involuntary blood draw issue in McNeely, where the State of Missouri

posited the dissipation factor itself was sufficient to establish an exigent circumstance and,

therefore, was an exception to the Fourth Amendment’s warrant requirement. McNeely, 133

S.Ct. at 1560. A plurality of the court disagreed and held that the dissipation of alcohol from the

body alone is, per se, insufficient to create and exigent circumstance to justify a warrantless

seizure of a person’s blood specimen.       Id. at 1561. The Supreme Court explained that a

warrantless blood draw must fall under one of the recognized exceptions to the Fourth Amendment

and that a trial court must make a determination on a case-by-case basis in light of the totality of

the circumstances. Id. 1561, 1558.

                        The Fourth Amendment and Texas’ Transportation Code


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       Texas’ mandatory blood draw statute mandates blood draws when, inter alia, an officer

arrests a person for the offense of driving while intoxicated and the person is either: involved in

an accident involving serious injury or death; or, that person has two or more prior convictions of

driving while intoxicated. TEX.TRANSP.CODE ANN. § 724.012(b)(West 2011). The Texas Court

of Criminal Appeals resolved the confusion between Texas’ mandatory blood draw statute and

McNeely in 2014. Villarreal, 475 S.W.3d at 784.

       In Villarreal, an officer conducting a traffic stop found the driver to have slurred speech,

red and watery eyes, and a strong scent of alcohol. Id. at 788. The driver in Villarreal refused to

partake in the SFSTs. Id. After conducting a background check, which showed that the driver

had several prior driving while intoxicated convictions, the officer in Villarreal took the driver to a

hospital for a blood draw despite the driver’s lack of consent. Id. The officer there relied on

Texas’ mandatory blood draw statute explaining that while he “‘could have’ obtained a warrant . . .

[he] believed he ‘did not statutorily have to’ in light of the [Transportation Code].” Id. at 789.

The Court of Criminal Appeals held:

       [T]he 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 . . . and we further reject the State’s
       suggestion that such a search may be upheld under a general Fourth Amendment
       balancing test.

Villareal, 475 S.W.3d at 813.

       The one distinguishing factor between Villarreal and this case is that in Villarreal, the

officer relied on the third prong of the Code—the prior driving while intoxicated convictions

prong—whereas in this case, Officer Alegre relied on the first prong—the accident involving


                                                  6
serious injury or death prong. TEX.TRANSP.CODE ANN. § 724.012(b)(3),(b)(1); Villarreal, 475

S.W.3d at 788. This difference is insufficient for this Court to refuse to follow the holding in

Villarreal.

       This Court has followed the Texas Court of Criminal Appeals in rejecting the argument

that McNeely has limited applicability when construed in conjunction with Section 724.012(b) of

the Texas Transportation Code. See State v. Munoz, 474 S.W.3d 8, 14 (Tex.App.--El Paso 2015,

pet. ref’d). In the present case, while the then current law regarding the interplay between the

Transportation Code and McNeely was unclear, in light of Villarreal, this Court finds that the trial

court erred when it denied Bravo’s motions since the Transportation Code, by itself, does not

create exigent circumstances. Villarreal, 475 S.W.3d at 814-15 (the “nonconsensual search of a

DWI suspect’s blood conducted pursuant to the mandatory-blood-draw and implied-consent

provisions in the Transportation Code, when undertaken in the absence of a warrant or any

applicable exception to the warrant requirement, violates the Fourth Amendment.”).

       Both at the suppression hearing and at trial, neither Officer Alegre nor Officer Alexander

provided testimony suggesting any recognized exception to the Fourth Amendment’s warrant

requirement. The officers testified that they did not apply for or receive a warrant for the blood

draw and that Bravo did not consent to the blood draw. Their testimony was, however, that they

relied on the Transportation Code’s implied consent provision when obtaining the blood draw. In

addition, the trial court made no findings of fact or conclusions of law beyond the Transportation

Code’s implied consent provisions that would indicate any factors suggesting a recognized

exception to the warrant requirement. Given that the Texas Transportation Code’s mandatory

blood draw is not a valid exception to the Fourth Amendment’s warrant requirement, the trial court


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erred in failing to suppress the blood test results. Bravo’s first issue on appeal is sustained. In

light of this Court’s holding on Bravo’s first issue on appeal, we need not address Bravo’s second

issue on appeal since it is unnecessary to the resolution of this appeal. TEX.R.APP.P. 47.1.

                                          Good Faith Reliance

        The State further argues that because neither McNeely nor Villarreal had been decided

when the officers conducted Bravo’s blood draw, the officers’ reasonable reliance on what they

believed to be a valid statutory mandate necessitates that this Court uphold the trial court’s

rulings.2 The United States Supreme Court has held, however, that “failure to apply a newly

declared constitutional rule to criminal cases pending on direct review violates basic norms of

constitutional adjudication.” Griffith v. Kentucky, 479 U.S. 314, 322, 107 S.Ct. 708, 713, 93

L.Ed.2d 649 (1987). In Griffith, the Supreme Court held that a newly announced constitutional

rule for conducting criminal prosecutions must be applied retroactively to all cases, state or

federal, pending on direct review or not yet final when the rule is announced, despite there being a

clear break from the past. Id. at 328, 107 S.Ct. at 716. This case was not final when McNeely or

Villarreal were decided and so they apply here on direct appeal. See Munoz, 474 S.W.3d at 16.

                                                  Harm

        Because the warrantless, non-consensual blood draw violated Bravo’s rights under the

Fourth Amendment, we must reverse the judgment unless we determine, beyond a reasonable

doubt, that the error did not contribute to the conviction or punishment. TEX.R.APP.P. 44.2(a).

The jury was instructed as follows:

               The term ‘intoxicated’ means not having the normal use of one’s mental or
        physical faculties by the reason of the introduction of alcohol into the body or by

2
 McNeely was decided on April 17, 2013. See McNeely, 133 S. Ct. at 1552. Villarreal was decided on
November 26, 2014. See Villarreal, 475 S.W.3d at 784.
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       having an alcohol concentration of 0.08 or more.

Officer Alegre’s testimony that Bravo’s blood alcohol concentration was over the legal limit was

based on the blood test results obtained through the warrantless, non-consensual blood draw.

Officer Alexander further testified at trial indicating that Bravo’s blood alcohol concentration was

over the legal limit based on the results of the warrantless, non-consensual blood draw. Given

this testimony and the jury’s instruction, we cannot determine beyond a reasonable doubt that the

error did not contribute to Bravo’s conviction.

                                         CONCLUSION

       Because the warrantless blood draw violated Bravo’s rights under the Fourth Amendment

and we cannot reasonable find that the erroneous admission of the blood draw results did not

contribute to the conviction, we reverse the judgment of the trial court and remand the cause for a

new trial.



                                              __________________________________________
October 19, 2016                              YVONNE T. RODRIGUEZ, Justice

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

(Do Not Publish)




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