                                                                                 PD-0999-15
                                                               COURT OF CRIMINAL APPEALS
                                                                                AUSTIN, TEXAS
                                                               Transmitted 8/3/2015 10:45:41 AM
                                                                 Accepted 8/6/2015 11:39:01 AM
                                                                                 ABEL ACOSTA
                                                                                         CLERK
                          #15-____________


                   Court of Criminal Appeals of Texas


                      THE STATE OF TEXAS,
                                Petitioner

                                    v.

                    MITCHELL McCLENDON,
                               Respondent



         State’s Petition from the 13th District Court of Appeals
(Cause #13-13-00357-CR), on State’s Appeal from the 28th District Court of
                 Nueces County (Cause #12-CR-1886-A)

    STATE’S PETITION FOR DISCRETIONARY REVIEW

                                     A. Cliff Gordon
                                     Tex. Bar #00793838
                                     Asst. Dist. Atty., 105th Dist.
                                     Nueces County Courthouse
                                     901 Leopard St., Rm. 206
                                     Corpus Christi, TX 78401
                                     361.888.0410 phone
                                     361.888.0399 fax
                                     cliff.gordon@nuecesco.com

                                     Attorney for Petitioner
              IDENTITY OF JUDGE, PARTIES, AND COUNSEL

Trial Court Judge: Honorable Nanette Hasette, Presiding Judge of the 28th
              District Court of Nueces County

Petitioner:     The State of Texas, District Attorney for the 105th Judicial
                District, represented by

                Appellate counsel:

                     A. Cliff Gordon, Asst. Dist. Atty.
                     901 Leopard St., Rm. 206
                     Corpus Christi, TX 78401

                Trial and appellate counsel:

                      Mark Skurka, District Attorney
                      Crystal Mathis, Asst. Dist. Atty.
                      901 Leopard St., Rm. 206
                      Corpus Christi, TX 78401

Respondent: Mitchell McClendon, represented by

                Trial and Appellate Counsel:

                      Alex J. Scharff
                      Campion & Campion
                      222 E. Main Plaza
                      San Antonio, TX 78205

                      Fred Jimenez
                      Law Offices of Fred Jimenez
                      509 Lawrence St. Ste. 301
                      Corpus Christi, TX 78401
                                       i
                                         TABLE OF CONTENTS

IDENTITY OF JUDGE, PARTIES, AND COUNSEL ......................................... i
INDEX OF AUTHORITIES .................................................................................. iii
STATEMENT REGARDING ORAL ARGUMENT .......................................... iv
STATEMENT OF THE CASE .............................................................................. iv
STATEMENT OF PROCEDURAL HISTORY ................................................... iv
QUESTION PRESENTED FOR REVIEW ........................................................... v
     1. Whether the implied consent and mandatory blood draw
        provisions of the Texas Transportation Code are a
        constitutionally valid alternative to the warrant requirement ........... v
ARGUMENT ............................................................................................................1
PRAYER ....................................................................................................................1
CERTIFICATE OF COMPLIANCE ......................................................................2
CERTIFICATE OF SERVICE .................................................................................3
APPENDIX ...............................................................................................................4
     1. Opinion of the 13th Court of Appeals .....................................................4




                                                             ii
                                     INDEX OF AUTHORITIES


Cases
State v. Villarreal, No. PD-0306-14, 2014 WL 6734178 (Tex. Crim. App.
      Nov. 26, 2014), reh’g granted (Feb. 25, 2015) ............................................1
Rules
Tex. R. App. P. 66.3 .................................................................................................1




                                                          iii
             STATEMENT REGARDING ORAL ARGUMENT

      The State does not believe that oral argument would be helpful to

determine this appeal because the issue has already been argued in State v.

Villarreal, No. PD-0306-14, 2014 WL 6734178 (Tex. Crim. App. Nov. 26,

2014), reh’g granted (Feb. 25, 2015).

                        STATEMENT OF THE CASE

      A grand jury indicted Mitchell McClendon for Felony Driving While

Intoxicated. CR 3. The trial court granted his motion to suppress evidence

relating to the warrantless draw of his blood pursuant to TEX. TRANSP.

CODE § 724.012(b). CR 63. The State timely appealed. CR 65. The 13th

Court of Appeals affirmed, holding that § 724.012 is not a constitutionally

recognized alternative to the warrant requirement. Opinion at 5.

               STATEMENT OF PROCEDURAL HISTORY

 Date court of appeals’ Opinion handed down       July 2, 2015

         Date State filed Motion for Rehearing    n/a

          Date Motion for Rehearing overruled     n/a




                                        iv
                QUESTION PRESENTED FOR REVIEW

1.   Whether the implied consent and mandatory blood draw provisions

     of the Texas Transportation Code are a constitutionally valid

     alternative to the warrant requirement. CR 63; RR 33-34, 37-39.




                                    v
                                 ARGUMENT

      Although this issue was initially decided against the State in State v.

Villarreal, No. PD-0306-14, 2014 WL 6734178 (Tex. Crim. App. Nov. 26,

2014), reh’g granted (Feb. 25, 2015), the Court has yet to issue a final

decision. Thus, the State respectfully requests that cases like the present

one, with similar or identical issues, be held under consideration until

Villarreal does become final and binding.

      The State continues to argue that the implied consent and mandatory

blood draw provisions of the Texas Transportation Code are a

constitutionally valid alternative to the warrant requirement, and that the

decision of the Thirteenth Court of Appeals to the contrary decides an

important question of federal law that has not been, but should be, settled

by the Court of Criminal Appeals. See Tex. R. App. P. 66.3(b).

                                     PRAYER

      For these reasons, the State requests that the Court grant this petition

for discretionary review, reverse the court of appeals’ judgment, and grant

the State all other proper relief.



                                       1
                                Respectfully Submitted,

                                /s/ A. Cliff Gordon
                                A. Cliff Gordon
                                Tex. Bar #00793838
                                Asst. Dist. Atty., 105th Dist.
                                Nueces County Courthouse
                                901 Leopard St., Rm. 206
                                Corpus Christi, TX 78401
                                361.888.0410 phone
                                361.888.0399 fax
                                cliff.gordon@nuecesco.com



                CERTIFICATE OF COMPLIANCE

     According to the word count of the computer program used to
prepare this document, it contains 770 words.




                               2
                     CERTIFICATE OF SERVICE

     On August 3, 2015, a true copy of the foregoing was served via
eServe on the following:

     Alex J. Scharff
     Campion & Campion
     222 E. Main Plaza
     San Antonio, TX 78205

     Fred Jimenez
     Law Offices of Fred Jimenez
     509 Lawrence St. Ste. 301
     Corpus Christi, TX 78401
     Appellate Counsel for Appellee

                                /s/ A. Cliff Gordon_______________
                                A. Cliff Gordon




                                  3
                              APPENDIX

1.   Opinion of the 13th Court of Appeals




                                   4
                          NUMBER 13-13-00357-CR

                          COURT OF APPEALS

                THIRTEENTH DISTRICT OF TEXAS

                  CORPUS CHRISTI – EDINBURG

THE STATE OF TEXAS,                                                    Appellant,

                                             v.


MITCHELL McCLENDON,                                                      Appellee.


                   On appeal from the 28th District Court
                          of Nueces County, Texas.


                       MEMORANDUM OPINION
     Before Chief Justice Valdez and Justices Garza and Longoria
              Memorandum Opinion by Chief Justice Valdez

      By one issue, the State appeals the trial court’s granting of appellee Mitchell

McClendon’s motion to suppress. We affirm.

                                I.    BACKGROUND
      Officer Brett Boyer arrested McClendon for suspicion of driving while intoxicated.

After McClendon refused to provide a blood sample, without first obtaining a warrant,

Officer Boyer ordered a phlebotomist to acquire a sample of McClendon’s blood pursuant

to section 724.012(b)(3) of the Texas Transportation Code. See TEX. TRANSP. CODE ANN.

§ 724.012 (West, Westlaw through Ch. 46 2015 R.S.) (setting out when a police officer is

required to obtain a blood sample from a person suspected of driving under the influence).

At the motion to suppress hearing, McClendon’s trial counsel argued that Boyer failed to

obtain a warrant prior to the blood draw as required under Missouri v. McNeely. See

Missouri v. McNeely, __ U.S. __, 133 S.Ct. 1552 (2013). The State responded that the

blood draw statute supported Officer Boyer’s ordering of the blood draw and that Officer

Boyer relied on the statute in good faith. The State conceded that there were no exigent

circumstances in this case, and it did not argue that any other exception to the warrant

requirement applied.1

      The trial court granted McClendon’s motion to suppress and entered findings of

fact and conclusions of law. This appeal followed.

                        II.     STANDARD OF REVIEW AND APPLICABLE LAW

      We review a trial court’s decision on a motion to suppress for an abuse of

discretion. Crain v. State, 315 S.W.3d 43, 48 (Tex. Crim. App. 2010). Under our abuse

of discretion analysis, we use a bifurcated standard. State v. Ross, 32 S.W.3d 853, 856



      1   Specifically, the prosecutor said,

      And in this case, the case against [McClendon], the State isn’t arguing that it wasn’t a
      standard DWI, or that there were any exigent circumstances. We heard from the officers
      that there were none. We are only arguing that the purpose of, or the reason behind the
      blood draw was the statute that required him to get the blood sample. And for that reason,
      we ask that the defendant’s motion to suppress is denied.


                                                      2
(Tex. Crim. App. 2000) (en banc) (citing Guzman v. State, 955 S.W.2d 85, 88 (Tex. Crim.

App. 1997) (en banc)); see also Urbina v. State, No. 13–08–00562–CR, 2010 WL

3279390, at *1 (Tex. App.—Corpus Christi Aug. 19, 2010, pet. ref’d) (mem. op., not

designated for publication). We give almost total deference to the trial court’s findings of

historical fact that are supported by the record and to its resolution of mixed questions of

law and fact that turn on an evaluation of credibility and demeanor. Amador v. State, 221

S.W.3d 666, 673 (Tex. Crim. App. 2007) (citing Guzman, 995 S.W.2d at 89). We “review

de novo ‘mixed questions of law and fact’ that do not depend upon credibility and

demeanor.” Id. (quoting Montanez v. State, 195 S.W.3d 101, 107 (Tex. Crim. App. 2006));

Guzman, 995 S.W.2d at 89.

         “When a trial court makes explicit fact findings, the appellate court determines

whether the evidence (viewed in the light most favorable to the trial court’s ruling) supports

these fact findings.” State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). We will

uphold the trial court’s ruling under any applicable theory of law supported by the facts of

the case whether we infer the fact findings or whether we consider express findings.

Alford v. State, 400 S.W.3d 924, 929 (Tex. Crim. App. 2013). “Similarly, regardless of

whether the trial court has made express conclusions of law, we uphold the trial court’s

ruling under any theory supported by the facts because an appellate court reviews

conclusions of law de novo.” Id. Under our de novo review, we are not required to defer

to a trial court’s particular theory. Id. This “rule holds true even if the trial court gave the

wrong reason for its ruling.” Armendariz v. State, 123 S.W.3d 401, 403 (Tex. Crim. App.

2003).




                                                   3
        “To suppress evidence on an alleged Fourth Amendment violation, the defendant

bears the initial burden of producing evidence that rebuts the presumption of proper police

conduct.” Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). “A defendant

satisfies this burden by establishing that a search or seizure occurred without a warrant.”

Id. Once a defendant establishes there was no warrant, the burden shifts to the State to

prove the warrantless search was reasonable under the totality of the circumstances.

Amador, 221 S.W.3d at 672–73. The State satisfies this burden if it proves an exception

to the warrant requirement. See Gutierrez, 221 S.W.3d at 685.

                                           III.     DISCUSSION

        The State appears to argue that section 724.012(b) is a valid exception to the

warrant requirement.2 McClendon first responds that the State’s brief is multifarious and

then argues that the trial court properly concluded that Officer Boyer was required to

obtain a warrant and there were no exigent circumstances shown to allow the blood draw.

        This Court has already determined that the Legislature did not mean to circumvent

the Fourth Amendment’s requirement that the police officer acquire a warrant prior to

acquiring a blood sample after the suspect refuses to provide a specimen regarding

subsection (b)(3) of the mandatory blood draw statute. See State v. Villarreal, No. 13–


        2  In its brief, the State claims that the “trial court abused its discretion by granting [McClendon’s]
motion to suppress blood test based solely on [McClendon’s] argument that the mandatory draw statute is
unconstitutional.” We disagree that the trial court concluded that the mandatory draw statute is
unconstitutional or that the constitutionality of the statute was at issue at the hearing. Instead, at the
hearing, all parties agreed that the only issue before the trial court was whether Officer Boyer was required
to obtain a warrant prior to the blood draw. The prosecutor stated, “And, Your Honor, prior to the beginning
of this we discussed that the only issue that would be discussed today would be the warrantless blood
draw.” And, McClendon’s trial counsel said, “I don’t want to take on the entire state of Texas to say the
statute is unconstitutional in general, just say as applied in this case, because it does violate the warrant
requirement of the [Fourth] Amendment and the United States Constitution, Texas Constitution, and Code
of Criminal Procedure.” Therefore, to the extent that the State argues on appeal that the statute is
constitutional, we need not address that issue as it is not dispositive of the appeal. See TEX. R. APP. P.
47.1.


                                                          4
13–00253–CR, __ S.W.3d __, __, 2014 WL 1257150, at *11 (Tex. App.—Corpus Christi

Jan. 23, 2014) aff’d, No. PD–0306–14, 2014 WL 6734178 (Tex. Crim. App. Nov. 26, 2014)

reh’g granted, (Feb. 25, 2015). In addition, the court of criminal appeals affirmed our

decision, stating that “the provisions in the Transportation Code do not, taken by

themselves, form a constitutionally valid alternative to the Fourth Amendment warrant

requirement” and “a 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.” Villarreal, __ S.W.3d __, __, 2014 WL

6734178, at **20–21.3

        The State conceded to the trial court that there were no exigent circumstances and

did not argue that any other exceptions to the warrant requirement applied in this case.4

The trial court concluded that Officer Boyer was required to obtain a warrant for the blood

draw absent exigent circumstances.                 Accordingly, because section 724.012 of the

transportation code does not by itself form a constitutionally recognized alternative to the

warrant requirement, we conclude that the trial court did not abuse its discretion by

granting McClendon’s motion to suppress. See id. We overrule the State’s sole issue.5


        3 After affirming our decision, the Court of Criminal Appeals granted the State’s motion for

rehearing. However, it has not vacated its decision affirming our ruling or withdrawn its opinion.
       4 Although the State argued to the trial court that Officer Boyer relied on the statute in good faith, it

does not make this argument on appeal.
        5  The State also argues that other exceptions to the warrant requirement apply such as the
automobile exception and voluntary consent and waiver. The State asserts that we must consider other
things in our analysis such as “the underlying expectation of privacy as a factor” and “the nature of the
privacy interest in blood” that “will be sufficient to sustain the constitutionality of [mandatory blood draw
statutes], especially the Texas statute, which is narrowly drawn to include only the most egregious offenders
and situations.” However, although the State argued to the trial court that the McNeely decision is very
narrow, the State did not make any of the above-mentioned arguments to the trial court. Accordingly, we
may not reverse the trial court on any of these grounds. See State v. Rhinehart, 333 S.W.3d 154, 162 (Tex.

                                                           5
                                                IV.      CONCLUSION

        We affirm the trial court’s judgment.

                                                            /s/ Rogelio Valdez
                                                            ROGELIO VALDEZ
                                                            Chief Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
2nd day of July, 2015.




Crim. App. 2011) (stating that the “ordinary rules of procedural default” apply to the “losing party” in trial
court); Hailey v. State, 87 S.W.3d 118, 121–22 (Tex. Crim. App. 2002) (“It is well-settled that . . . it violates
ordinary notions of procedural default for a Court of Appeals to reverse a trial court’s decision on a legal
theory not presented to the trial court by the complaining party.”) (quotations omitted); State v. Mercado,
972 S.W.2d 75, 78 (Tex. Crim. App. 1998) (en banc) (“[I]n cases in which the State is the party appealing,
the basic principle of appellate jurisprudence that points not argued at trial are deemed to be waived applies
equally to the State and the defense.”); see also Martinez v. State, 91 S.W.3d 331, 336 (Tex. Crim. App.
2002) (“And so it is that appellate courts may uphold a trial court’s ruling on any legal theory or basis
applicable to the case, but usually may not reverse a trial court’s ruling on any theory or basis that might
have been applicable to the case, but was not raised.”).


                                                            6
