                                      In The

                               Court of Appeals
                    Ninth District of Texas at Beaumont
                           ____________________
                              NO. 09-13-00421-CR
                           ____________________

                      THE STATE OF TEXAS, Appellant

                                        V.

               CHRISTOPHER LAMAR STEWART, Appellee
_______________________________________________________            ______________

                     On Appeal from the 9th District Court
                         Montgomery County, Texas
                       Trial Cause No. 12-08-08546 CR
________________________________________________________            _____________

                          MEMORANDUM OPINION

      In this appeal, the State challenges the trial court’s decision to suppress

evidence—a sample of Christopher Lamar Stewart’s blood—seized in a

warrantless search following his arrest for driving while intoxicated. The State

argues that under the circumstances, a warrant was not required; it concludes the

trial court abused its discretion in finding otherwise. For the reasons explained in

State v. Anderson, No. 09-13-00400-CR, 2014 Tex. App. LEXIS 11151, **26-27

(Tex. App.—Beaumont Oct. 8, 2014, no pet. h.), we affirm the trial court’s order.

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                                   Background

      On an evening in May 2012, Jay Smith, a trooper employed by the

Department of Public Safety, responded to a call about a car accident on FM 1484.

When he arrived at the scene, he noticed a sedan on its roof in a ditch. The driver

of the sedan, Stewart, was being treated in the back of an ambulance by emergency

medical responders. Trooper Smith spoke to Stewart; he noticed that Stewart had

an injury to his face, a strong odor of alcohol on his breath, and red glassy eyes.

Stewart told Trooper Smith that he had been driving, had been drinking, and that

“he might have blacked out.” Trooper Smith administered the horizontal gaze

nystagmus exam, a field sobriety test used by law enforcement. Stewart exhibited

six out of six clues on that exam, indicating that Stewart’s ability to drive was

impaired.

      O.D., who indicated that she had been following Stewart in another vehicle,

was also on the scene when Trooper Smith arrived. When he spoke to O.D.,

Trooper Smith noticed that she too had red glassy eyes and that she had the smell

of alcohol on her breath. After doing field sobriety tests, Trooper Smith determined

that O.D. was intoxicated and arrested her.

      On the way to the hospital where Stewart was taken, Trooper Smith learned

that Stewart had three prior convictions for driving while intoxicated. At the

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hospital, Trooper Smith also learned that the hospital had drawn a sample of

Stewart’s blood. After Stewart was given the statutory warnings 1 relating to

Trooper Smith’s request for a voluntary sample, Stewart refused to give a sample

of his blood. According to Trooper Smith, “[a]t that point, statutory authorization,

the mandatory blood specimen was used.” 2 See Tex. Transp. Code Ann. §

724.012(b)(3)(B) (West 2011).

      After the State charged Stewart with driving while intoxicated, Stewart filed

a motion contending his Fourth Amendment rights were violated. Stewart asked

the trial court to suppress the test results from the sample Trooper Smith obtained

at the hospital. Relying on Missouri v. McNeely, 133 S.Ct. 1552 (2013), Stewart

argued that absent exigent circumstances, an officer cannot legally draw a

suspect’s blood without the person’s consent or a valid search warrant. Stewart

      1
       The statutory warning, referred to as the “DIC 24 Mandated Statutory
Warning,” requires law enforcement officials to warn those arrested for driving
while intoxicated of the consequences of refusing to consent to the State’s request
for a breath or blood specimen and that the officer, if refused the specimen, may
apply for a warrant authorizing a specimen to be taken. See Tex. Transp. Code
Ann. § 724.011 (West 2011), § 724.015 (West Supp. 2014).
      2
       Smith’s testimony is an apparent reference to section 724.012(b)(3)(B) of
the Texas Transportation Code, which provides that the peace officer “shall”
obtain a blood or breath specimen if the person being arrested for driving while
intoxicated has, on two or more occasions, previously been convicted of or placed
on community supervision for driving while intoxicated. Tex. Transp. Code Ann. §
724.012(b)(3)(B) (West 2011).
                                         3
claimed that no exigent circumstances existed to excuse Trooper Smith’s failure to

obtain a warrant.

      In response, the State argued that section 724.012 of the Texas

Transportation Code authorized Trooper Smith to obtain the sample, given

Stewart’s three prior convictions for driving while intoxicated. See Tex. Transp.

Code Ann. § 724.012(b)(3)(B). Additionally, the State asserted that exigent

circumstances existed to justify the warrantless search. Finally, the State suggests

the trial court erred by failing to excuse Smith’s decision to conduct a warrantless

search even if it violated Smith’s Fourth Amendment rights, arguing that Trooper

Smith acted in good faith by relying on section 724.012. According to the State, at

the time Trooper Smith relied on the statute to conduct the warrantless search at

issue, McNeely had not been decided. The trial court granted Stewart’s motion to

suppress. In its findings, the trial court concluded that the “blood specimen taken in

this case was an invalid warrantless search and seizure in violation of [Stewart’s

rights under the] Fourth Amendment[.]”

      In four issues, the State contends the trial court abused its discretion by

granting Stewart’s motion to suppress. In issues one and two, the State suggests

that section 724.012 of the Transportation Code authorized Trooper Smith’s

decision to obtain Stewart’s blood sample without a warrant regardless of whether

                                          4
exigent circumstances existed. In issue three, the State contends that it established

that exigent circumstances existed with respect to the seizure at issue, allowing the

State to conduct a warrantless search. In issue four, the State argues that the trial

court abused its discretion by rejecting Trooper Smith’s explanation that he was

acting under the authority he was given by the Transportation Code requiring that

he obtain a sample of Stewart’s blood, given Stewart’s prior convictions for

driving while intoxicated.

                                Standard of Review

      We review a trial court’s ruling on a motion to suppress under a bifurcated

standard. Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2013).

Factual findings that a trial court made in a suppression hearing are reviewed using

an abuse of discretion standard. Id. Under that standard, the trial court’s

determination of historical facts based on credibility assessments, when supported

by the record, are given almost total deference. Crain v. State, 315 S.W.3d 43, 48

(Tex. Crim. App. 2010). Legal questions and mixed questions of law and fact that

do not turn on credibility assessments are reviewed using a de novo standard. Id.

      In suppression hearings, the trial court acts as the exclusive trier of fact and

judges the credibility of the witnesses. Maxwell v. State, 73 S.W.3d 278, 281 (Tex.

Crim. App. 2002). Acting as the trier of fact, a trial court may choose to believe or

                                          5
disbelieve all or any part of a witness’s testimony. State v. Ross, 32 S.W.3d 853,

855 (Tex. Crim. App. 2000). In reviewing rulings from suppression hearings, we

view the evidence in the light most favorable to the ruling, and we are obligated to

uphold the ruling when it is supported by the record and is correct under any

applicable theory of law. State v. Castleberry, 332 S.W.3d 460, 465 (Tex. Crim.

App. 2011); Ross, 32 S.W.3d at 855-56.

                                     Analysis

      The Fourth Amendment to the U.S. Constitution provides protection from

unreasonable searches. See Anderson, 2014 Tex. App. LEXIS 11151, at *10; see

also U.S. Const. amend. IV. Only under certain specific exceptions are searches

reasonable absent a warrant. Anderson, 2014 Tex. App. LEXIS 11151, at **10-11

(citing Riley v. California, 134 S.Ct. 2473, 2482 (2014); McGee v. State, 105

S.W.3d 609, 615 (Tex. Crim. App. 2003)). It is the State’s burden to show that a

warrantless search falls within one of the permissible exceptions. McGee, 105

S.W.3d at 615.

      In this case, the State asserts that section 724.012 of the Transportation Code

authorized Trooper Smith’s decision, given Stewart’s refusal, to obtain a sample of

Stewart’s   blood   without   a   warrant.    The   State   relies   on   subsection

724.012(b)(3)(B), which provides:

                                         6
      (b) A peace officer shall require the taking of a specimen of the
      person’s breath or blood . . . if the officer arrests the person for an
      offense under Chapter 49, Penal Code, involving the operation of a
      motor vehicle . . . and the person refuses the officer’s request to
      submit to the taking of a specimen voluntarily:

             ....

      (3) at the time of the arrest, the officer possesses or receives reliable
      information from a credible source that the person:

             ....

      (B) on two or more occasions, has been previously convicted of or
      placed on community supervision for an offense under Section 49.04,
      49.05, 49.06, or 49.065, Penal Code[.]

Tex. Transp. Code Ann. § 724.012(b)(3)(B).

      We rejected the same statutory authorization argument the State raises in this

case in Anderson; nothing in the State’s brief indicates that we need to revisit those

same arguments here. Anderson, 2014 Tex. App. LEXIS 11151, at *26; see also

McNeely, 133 S.Ct. at 1565-66. For the reasons we explained in Anderson, issues

one and two are overruled.

      In issue three, the State argues that Trooper Smith faced circumstances that

required his immediate action, justifying his failure to obtain a warrant. However,

the trial court, at the conclusion of the suppression hearing, concluded otherwise,

noting “there was insufficient evidence of exigent or extenuating circumstances


                                          7
that would have prevented [Trooper] Smith from obtaining a valid blood search

warrant signed by a judge.”

      In reviewing the trial court’s conclusion that exigent circumstances did not

exist to justify a warrantless search, we examine the “totality of the

circumstances,” and then analyze the facts on a case-by-case basis. See McNeely,

133 S.Ct. at 1556, 1558-59, 1563. “We apply an objective standard of

reasonableness to determine whether a warrantless search was justified, and we

take into account the facts and circumstances known to the police at the time of the

warrantless search.” Anderson, 2014 Tex. App. LEXIS 11151, at *31 (citing

Colburn v. State, 966 S.W.2d 511, 519 (Tex. Crim. App. 1998)).

      Here, Trooper Smith was the only officer on the scene of a one-vehicle

accident that occurred around 11:15 p.m. Although he suspected Stewart of

drinking and driving, he was then occupied at the scene by another driver who he

also suspected had been driving while intoxicated. Although that driver, O.D.,

initially consented to Trooper Smith’s request for a voluntary blood sample, she

later withdrew her consent.

      Around 12:30 a.m., Trooper Smith contacted the on-duty assistant district

attorney at the jail about contacting a judge to obtain a warrant for O.D’s blood.

Trooper Smith testified that the assistant district attorney told him that a judge was

                                          8
not available; however, the trial court, as the finder of fact, was free to reject

Trooper Smith’s testimony that he was told a judge was not available. The trial

court could have also reasonably concluded that even if the officer was told that no

judge was available for O.D.’s case, a case involving no prior driving while

intoxicated convictions, that did not mean that a judge would not necessarily have

been available under the circumstances involving Stewart’s case.

       Stewart refused Trooper Smith’s request for a blood sample around 12:51

a.m. Trooper Smith did not attempt to contact the assistant district attorney again to

request assistance in finding a judge to issue a warrant for Stewart’s blood. At 1:30

a.m., Trooper Smith decided to obtain a mandatory blood sample because he

believed the Transportation Code authorized him to do so without a warrant, given

Stewart’s three prior convictions. There was no evidence in the record that

compelled the trial court to find that no judge would have been available had the

circumstances of Stewart’s case been related to the assistant district attorney on

call that night.

       Based upon the testimony and evidence submitted at the suppression

hearing, the trial court could have reasonably concluded that Trooper Smith

decided to obtain the sample without a warrant because he thought he could do so

under the Transportation Code. Trooper Smith conceded that he did not attempt to

                                          9
obtain a search warrant for Stewart’s blood. Viewing the evidence in the light most

favorable to the trial court’s ruling, and considering the trial court’s right to weigh

and decide questions about the credibility of the evidence before it, and the amount

of time that Trooper Smith had to seek a warrant authorizing him to obtain a

sample of Stewart’s blood, the trial court’s decision to reject the State’s claim that

no warrant was needed is a matter the trial court resolved in a reasonable manner.

We overrule the State’s third issue.

      In its fourth issue, the State argues the trial court failed to apply a good faith

exception to the rule requiring it to exclude the evidence of an illegal search by

granting Stewart’s motion. See Tex. Code Crim. Proc. Ann. art. 38.23 (West 2005).

We rejected this same argument in Anderson, and we explained that “[t]he stated

exception in article 38.23(b) expressly applies only when a warrant has been issued

by a neutral magistrate and the officer relied upon the warrant.” Anderson, 2014

Tex. App. LEXIS 11151, at *37. Because no warrant issued in Stewart’s case, the

statutory exception found in article 38.23(b) does not apply. Id. We overrule the

State’s fourth issue.

      Having overruled all of the State’s issues, we affirm the trial court’s order.




                                          10
      AFFIRMED.



                                                  _________________________
                                                      HOLLIS HORTON
                                                           Justice


Submitted on June 12, 2014
Opinion Delivered November 12, 2014
Do Not Publish

Before McKeithen, C.J., Horton and Johnson, JJ.




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