Opinion issued August 29, 2019




                                      In The

                               Court of Appeals
                                     For The

                          First District of Texas
                             ————————————
                              NO. 01-18-00146-CR
                            ———————————
                      THE STATE OF TEXAS, Appellant
                                        V.
                    SEAN MICHAEL MCGUIRE, Appellee


                    On Appeal from the 268th District Court
                           Fort Bend County, Texas
                     Trial Court Case No. 10-DCR-055898


                                  OPINION

      Sean Michael McGuire is charged with felony murder for the death of a

motorcyclist McGuire struck while allegedly intoxicated. McGuire moved to

suppress evidence obtained after his arrest, arguing that his warrantless arrest was

unlawful. The State argued that Article 14.03(a)(1) of the Code of Criminal
Procedure authorized McGuire’s warrantless arrest because McGuire was found in

a suspicious place. TEX. CODE CRIM. PROC. art. 14.03(a)(1). The trial court granted

McGuire’s motion to suppress, and the State appealed. See TEX. CODE CRIM. PROC.

art. 44.01(a)(5) (permitting State an interlocutory appeal of an order granting a

criminal defendant’s motion to suppress evidence).

      Because the Court of Criminal Appeals has interpreted Article 14.03(a)(1) to

require the State to show exigent circumstances1 to arrest without a warrant under

Article 14.03(a)(1) and the State did not, we affirm. Swain v. State, 181 S.W.3d 359,

366 (Tex. Crim. App. 2005); Gallups v. State, 151 S.W.3d 196, 202 (Tex. Crim.

App. 2004); Minassian v. State, 490 S.W.3d 629, 637 (Tex. App.—Houston [1st

Dist.] 2016, no pet.) (describing Swain as holding that “warrantless arrest under

[Article] 14.03(a)(1) requires showing of exigent circumstances”); cf. Bell v. State,

No. 02-17-00299-CR, 2019 WL 3024481, at *2–3 (Tex. App.—Fort Worth July 11,



1
      Black’s Law Dictionary defines exigent circumstances as follows:
            Circumstance . . .
            – exigent circumstances (1906) 1. A situation that demands unusual
            or immediate action and that may allow people to circumvent usual
            procedures, as when a neighbor breaks through a window of a burning
            house to save someone inside. 2. A situation in which a police officer
            must take immediate action to effectively make an arrest, search, or
            seizure for which probable cause exists, and thus may do so without
            first obtaining a warrant. • Exigent circumstances may exist if (1) a
            person’s life or safety is threatened, (2) a suspect’s escape is
            imminent, or (3) evidence is about to be removed or destroyed.
      Circumstance, BLACK’S LAW DICTIONARY (10th ed. 2014).

                                           2
2019) (mem. op., not designated for publication) (noting Swain exigency

requirement and numerous intermediate appellate court opinions applying Swain to

require proof of exigency when State relies on Article 14.03(a)(1)’s suspicious-place

exception).

                                   Background

      Late one evening, Sean Michael McGuire was driving home when his truck

struck a motorcycle driven by David Stidman. McGuire made a U-turn and pulled

into the parking area of a nearby Shell gas station. McGuire called his mother and

two people he knew in law enforcement. After calling them, McGuire waited at the

gas station.

      Meanwhile, the police were investigating the discovery of a motorcycle and

dead motorist. During their investigation, the police were told that McGuire was

waiting at the Shell gas station. They went to the gas station. At least one officer

who spoke with McGuire suspected he had been driving while intoxicated.

      The police drove McGuire to the location of Stidman’s body. There, McGuire

was arrested. He was taken to a local hospital where a warrantless, nonconsensual

blood draw was performed to determine his blood-alcohol content.

      McGuire was charged with felony murder on the basis that he was driving

while intoxicated, he had two prior out-of-state DWIs, and those DWIs elevated this




                                         3
offense to a first-degree felony. See TEX. PENAL CODE §§ 19.02(b)(3) (felony

murder), 49.09(b)(2) (enhancing DWI to felony).

       McGuire moved to suppress evidence on the argument that his warrantless

arrest and warrantless search were unlawful. Among his arguments, he contended

that the warrantless blood draw was an unlawful search in violation of the Fourth

Amendment. His motion to suppress was denied. He was convicted of murder and

appealed. This Court reversed his conviction, holding that the warrantless,

nonconsensual blood draw violated McGuire’s Fourth Amendment right to be free

from unreasonable searches as recognized in Missouri v. McNeely, 569 U.S. 141

(2013). See McGuire v. State, 493 S.W.3d 177, 199 (Tex. App.—Houston [1st Dist.]

2016, pet. ref’d); see also id. at 202 (stating, “All remaining issues raised in

McGuire’s appeal of the murder conviction are moot.”). The case was remanded and

set for retrial in 2018.

       In advance of retrial, McGuire filed another motion to suppress evidence.2 He

argued that his warrantless arrest was unlawful and did not fit within any of the


2
       A ruling on a motion to suppress evidence is interlocutory and may be subject to
       reconsideration and revision on remand. See Clement v. State, 530 S.W.3d 154, 160
       (Tex. App.—Eastland 2015) (stating that “a pretrial motion to suppress evidence is
       ‘nothing more than a specialized objection to the admissibility of that evidence’ that
       is interlocutory in nature . . . [and] may be the subject of reconsideration and revision
       as is any other ruling on the admissibility of evidence . . . [therefore,] the State will
       not be precluded from seeking a reconsideration of the suppression on a more fully
       developed record upon the remand of this case to the trial court.”), rev’d on other
       grounds, PD-0681-15, 2016 WL 4938246 (Tex. Crim. App. Sept. 14, 2016) (not
       designated for publication). This Court did not review the trial court’s 2012
                                               4
Chapter 14 exceptions to the warrant requirement. See TEX. CODE CRIM. PROC. art.

14.01–.06. In the State’s written response and at the suppression hearing, the State

argued that the arrest fell within the suspicious-place warrant exception under

Article 14.03(a)(1), but the State did not note the exigency requirement, point to any

evidence that might satisfy the exigency requirement, or argue that a per se exigency

exists.

          The trial court—with a different trial judge than the one who presided over

the first trial—did not receive any new evidence at the 2018 suppression hearing.

Instead, the court reviewed the 2012 suppression-hearing transcript, the 2016 trial

testimony, and the parties’ pleadings. After considering these materials and the

parties’ motion and response, the trial court granted McGuire’s motion to suppress,

and the State appealed.

                                     Standard of Review

          Appellate courts review a trial court’s ruling on a motion to suppress using a

bifurcated standard of review. State v. Martinez, 570 S.W.3d 278, 281 (Tex. 2019).



          suppression ruling based on whether the warrantless arrest was legally permissible,
          only whether the warrantless search was permissible. See McGuire, 493 S.W.3d at
          202. Thus, there was no bar to reconsideration of the warrantless-arrest suppression
          issue on remand at the 2018 suppression hearing; nor has law of the case been
          established on the warrantless arrest issue because this Court did not rule on that
          issue. See State v. Swearingen, 424 S.W.3d 32, 36 (Tex. Crim. App. 2014) (“The
          ‘law of the case’ doctrine provides that an appellate court’s resolution of questions
          of law in a previous appeal are binding in subsequent appeals concerning the same
          issue.”) (emphasis added).
                                                5
Under the bifurcated standard, the trial court is given almost complete deference in

its determination of historical facts, especially if based on an assessment of

demeanor and credibility, and the same deference is afforded the trial court for its

rulings on application of law to questions of fact and to mixed questions of law and

fact, if resolution of those questions depends on an evaluation of demeanor and

credibility. Id. However, for mixed questions of law and fact that do not fall within

that category, the reviewing court may conduct a de novo review. Id. Our review of

questions of law is de novo. Id.

      We will sustain the trial court’s ruling if it is reasonably supported by the

record and correct on any theory of law applicable to the case. Laney v. State, 117

S.W.3d 854, 857 (Tex. Crim. App. 2003). This is so even if the trial judge gives the

wrong reason for its decision. Id.; State v. Ross, 32 S.W.3d 853, 855–56 (Tex. Crim.

App. 2000); State v. Brabson, 899 S.W.2d 741, 745–46 (Tex. App.—Dallas 1995),

aff’d, 976 S.W.2d 182 (Tex. Crim. App. 1998) (stating that, in context of reviewing

trial court order granting motion to suppress “we cannot limit our review of the [trial]

court’s ruling to the ground upon which it relied. We must review the record to

determine if there is any valid basis upon which to affirm the county criminal court’s

ruling”).




                                           6
          Article 14.03(a)(1) and the Necessary Showing of Exigency

      Warrantless arrests in Texas are authorized only in limited circumstances.

Swain, 181 S.W.3d at 366. Once a defendant has established that an arrest has

occurred and that no warrant was obtained, the burden shifts to the State to show

that the arrest was within an exception to the warrant requirement. Covarrubia v.

State, 902 S.W.2d 549, 553 (Tex. App.—Houston [1st Dist.] 1995, pet. ref’d);

Holland v. State, 788 S.W.2d 112, 113 (Tex. App.—Dallas 1990, pet. ref’d). Most

of the exceptions to the warrant requirement are found in Chapter 14 of the Code of

Criminal Procedure. See Swain, 181 S.W.3d at 366; TEX. CODE CRIM. PROC. art.

14.01–.06 (delineating those circumstances in which warrantless arrests are

permissible). The validity of a warrantless arrest can only be decided by the specific

factual situation in each individual case. Holland, 788 S.W.2d at 113.

      The exception relied on by the State in this appeal is found in Article

14.03(a)(1), which provides:

      Any peace officer may arrest, without warrant . . . persons found in
      suspicious places and under circumstances which reasonably show that
      such persons have been guilty of some felony . . . breach of the peace,
      or [various other listed offenses] . . . or are about to commit some
      offense against the laws[.]

TEX. CODE CRIM. PROC. art. 14.03(a)(1).

      The Court of Criminal Appeals has held that, when relying on Article

14.03(a)(1), the State must establish that (1) probable cause existed, (2) the person


                                          7
was found in a suspicious place, and (3) “exigent circumstances call for immediate

action or detention by police.” Swain, 181 S.W.3d at 366 (concluding that exigent

circumstances were established on evidence that person arrested had just admitted

to leaving injured woman in secluded area after beating her during robbery, police

perceived urgent need to find woman before she died from her injuries, and held

additional concern that person who had admitted his involvement might flee);

Gallups, 151 S.W.3d at 202; cf. Dyar v. State, 125 S.W.3d 460, 470–71 & n.13

(Cochran, J., concurring) (stating that “if there are no exigent circumstances that call

for immediate action or detention by the police, article 14.03(a)(1) cannot be used

to justify a warrantless arrest”) (citing Gerald S. Reamey, Arrests in Texas’s

“Suspicious Places”: A Rule in Search of Reason, 31 TEX. TECH L. REV. 931, 967–

77, 980 (2000)).

      At least five intermediate courts—including this one—have noted the State’s

burden to establish exigent circumstances when relying on Article 14.03(a)(1). See,

e.g., Minassian v. State, 490 S.W.3d 629, 637 (Tex. App.—Houston [1st Dist.] 2016,

no pet.) (describing Swain as holding that “warrantless arrest under Section

14.03(a)(1) requires showing of exigent circumstances” and concluding that risk of

destruction of computer-data evidence on laptops established exigency); Polly v.

State, 533 S.W.3d 439, 443 & n.4 (Tex. App.—San Antonio 2016, no pet.) (relying

on Swain for proposition that exigency must be established for warrantless arrest


                                           8
under Article 14.03(a)(1)); see also Cook v. State, 509 S.W.3d 591, 603–04 (Tex.

App.—Fort Worth 2016, no pet.); LeCourias v. State, 341 S.W.3d 483, 489 (Tex.

App.—Houston [14th Dist.] 2011, no pet.); State v. Morales, No. 08-09-00137-CR,

2010 WL 819126, at *2 (Tex. App.—El Paso Mar. 10, 2010, no pet.) (mem. op., not

designated for publication).

      There are several pre-2013 appellate court cases in which Texas intermediate

appellate courts have held that the natural dissipation of alcohol in a suspect’s blood

provides an exigency under Article 14.03(a)(1) in that dissipation destroys evidence

of a DWI offense. See, e.g., Gallups, 151 S.W.3d at 202 (stating that “need to

ascertain appellant’s blood-alcohol level” was exigent circumstance); Winter v.

State, 902 S.W.2d 571, 575–76 (Tex. App.—Houston [1st Dist.] 1995, no pet.);

Morales, 2010 WL 819126, at *2; State v. Wrenn, No. 05-08-01114-CR, 2009 WL

1942183, at *3 (Tex. App.—Dallas July 8, 2009, no pet.) (mem. op., not designated

for publication).

      In 2013, the United States Supreme Court ruled that the dissipation of alcohol

does not provide a per se exigency to relieve the State of the requirement of a search

warrant when conducting an unconsented-to blood draw of a DWI suspect. McNeely,

569 U.S. at 155. Since McNeely, at least one intermediate appellate court has held

that the dissipation of alcohol does not, without more, meet Article 14.03(a)(1)’s

exigency requirement either. State v. Donohoo, No. 04-15-00291-CR, 2016 WL


                                          9
3442258, at *6 (Tex. App.—San Antonio June 22, 2016, no pet.) (mem. op., not

designated for publication) (stating that “McNeely forecloses the State’s position”

that “exigent circumstances called for Donohoo’s immediate arrest” on its singular

argument that it needed to obtain his blood-alcohol level before the natural

dissipation of alcohol); see also Bell, 2019 WL 3024481, at *2 n.2 (citing McNeely

in discussion of exigency justifying arrest); but see Dansby v. State, 530 S.W.3d 213,

222 (Tex. App.—Tyler 2017, pet. ref’d) (relying on Gallups, and without citation to

McNeely or discussion of any case-specific facts influencing ability to timely obtain

warrant, holding that “exigent circumstances—the need to ascertain Appellant’s

alcohol concentration—existed to justify Appellant’s immediate arrest” under

Article 14.03(a)(1)); Lewis v. State, 412 S.W.3d 794, 802 (Tex. App.—Amarillo

2013, no pet.) (without citing McNeely or discussing any case-specific facts

influencing ability to timely obtain warrant, holding that officer “needed to take

prompt action to ascertain appellant’s blood-alcohol level” and exigency existed to

support warrantless arrest under Article 14.03(a)(1)).

      Here, the State does not argue that the dissipation of alcohol provided the

necessary exigency, either per se or based on the particular facts of McGuire’s arrest.

In fact, the State’s position is that no exigency requirement exists at all. At oral

argument, the State explained that it reads Minassian to say that no exigency is

required under Article 14.03(a)(1). But the State misreads the case’s holding. This


                                          10
Court stated, in Minassian, that proof of exigency circumstances is not required “to

pass constitutional muster” in the context of a warrantless felony arrest made in a

public place but that more had to be considered to review the lawfulness of the arrest

at issue because Article 14.03(a)(1) additionally “requires exigent circumstances to

make a warrantless arrest premised on suspicious activity in a suspicious place.” 490

S.W.3d at 639 (citing Swain, 181 S.W.3d at 366). Proof of exigent circumstances is

required when the State relies on Article 14.03(a)(1) to justify a warrantless arrest.

Id.

        The State had the burden at the 2018 suppression hearing to establish exigent

circumstances to permit the warrantless arrest of McGuire, but it did not.

                     The State Made No Showing of Exigency;
      Therefore, the Trial Court Did Not Err in Granting Motion to Suppress

        In its appellate brief, the State presents three arguments why the trial court

erred in granting McGuire’s suppression motion; however, the State fails to point to

any evidence of exigent circumstances. This is consistent with the State’s

presentation of the issues to the trial court. Neither the State’s response to McGuire’s

motion to suppress nor its arguments at the suppression hearing addressed exigency.

        This failure of evidence provided a basis for the trial court to grant McGuire’s

motion to suppress. On appeal of the grant of a motion to suppress, “[w]e must

review the record to determine if there is any valid basis upon which to affirm the

[trial] court’s ruling.” Brabson, 899 S.W.2d at 745–46. Because the State did not

                                           11
meet its evidentiary burden to bring McGuire’s arrest within the sole warrant

exception on which it relied, we must affirm the trial court’s order granting the

motion to suppress. The dissent’s approach fails to hold the State to its evidentiary

burden or follow this well-established standard of review.

      Even if the State had sought to meet its burden to establish an exigency, there

is no basis on which the trial court could have found a per se or case-specific

exigency on this record. The State could not rely on McGuire’s alleged intoxication

to argue a per se exigency because, after McNeely, there is no per se exigency for

dissipation of alcohol in a suspect’s blood. 569 U.S. at 164; see Donohoo, 2016 WL

3442258, at *6 (relying on McNeely to reject State’s argument for warrantless arrest

under Article 14.03(a)(1) based on dissipation of suspect’s blood-alcohol level,

given that officers had testified they never sought warrant); see also Bell, 2019 WL

3024481, at *2 n.2 (in connection with holding that, under Swain, exigent

circumstances must be shown, noting that the United States Supreme Court held, in

McNeely, that “the natural metabolization of alcohol in the bloodstream does not

present a per se exigency but must be determined on a case-by-case basis on the

totality of the circumstances.”).

      Neither do the case-specific facts establish an exigency to successfully

challenge the suppression order. McGuire called his mother from the Shell gas

station before he interacted with any police officers, and she drove to the gas station


                                          12
to wait with him. She was available to drive him, should he have been allowed to

leave, which meant there was no danger of subsequent driving while intoxicated. Cf.

York v. State, 342 S.W.3d 528, 536–37 (Tex. Crim. App. 2011) (evidence of

defendant’s running vehicle warranted reasonable belief that, if defendant were

intoxicated, he would eventually endanger himself and others when he drove vehicle

home). Moreover, McGuire waited at the gas station for law enforcement to arrive

and agreed to ride with the officers to the location where Stidman’s body was

located. There was no evidence that, after the police engaged McGuire, they held

any concern that McGuire would attempt to flee. Cf. Villalobos v. State, No. 14-16-

00593-CR, 2018 WL 2307740, at *6 (Tex. App.—Houston [14th Dist.] May 22,

2018, pet. ref’d) (mem. op., not designated for publication) (concluding that Article

14.03(a)(1) requirements were met on evidence driver “needed to be detained

because he had fled scene of accident”).

      Without any evidence or argument that an exigency existed, we must conclude

that the State failed to meet its burden to establish that McGuire’s warrantless arrest

was authorized under Article 14.03(a)(1), on which the State relied. See Brabson,

899 S.W.2d at 745–46; cf. Buchanan v. State, 175 S.W.3d 868, 876 (Tex. App.—

Texarkana 2005) (concluding that State failed to establish exigent circumstances to

support warrantless arrest under Article 14.03(a)(1) because there was no evidence

suspect was going to escape or that urgency existed, and stating, “We cannot


                                           13
interpret Article 14.03(a)(1) to be so encompassing that it swallows the general rule

that a valid arrest should be based on an arrest warrant.”), rev’d on waiver grounds,

207 S.W.3d 772 (Tex. Crim. App. 2006).

       Accordingly, we conclude that the trial court did not err in granting McGuire’s

motion to suppress. See Laney, 117 S.W.3d at 857 (stating that ruling on motion to

suppress must be upheld if legally correct even if trial court did not present same

basis in its ruling). In light of our holding, we do not reach any other issues raised in

the State’s brief.

                                 Response to Dissent

       The dissent addresses three issues that require a response: whether Article

14.03 requires a showing of exigency, whose burden it is to make that showing, and

whether certain facts or circumstances satisfy that burden under a per se or fact-

specific analysis.

A.     Article 14.03 requires a showing of exigency

       The dissent presents the current state of law on exigency in the context of a

warrantless arrest as though a turn of phrase has been frivolously used and then given

unintended weight. Dissenting Op. at *10 (after determining that “courts have

implied an exigency requirement from a sentence in” Swain v. State, openly doubting

whether Texas law actually does “require exigent circumstances in all cases under

article 14.03(a)(1)”). But there can be no question that Texas law requires a showing


                                           14
of exigency when relying on this warrant exception. The Court of Criminal Appeals

has expressly stated—twice—that a showing of exigency is part of the proof

necessary under Article 14.03(a)(1). See Gallups, 151 S.W.3d at 202; Swain, 181

S.W.3d at 366–67. Both opinions show the deliberative basis for the statement of

law, citing to a 2003 concurrence in another Court of Criminal Appeals opinion,

Dyar, 125 S.W.3d at 468–71 (Cochran, J., concurring).

      The Dyar concurrence discussed the historical context of Article 14.03(a)(1)

and the ill fit between the terms of the 150-year-old statute and modern Fourth

Amendment search-and-seizure law. Id. The provision now found in Article 14.03,

when implemented, sanctioned the arrest of “suspicious people” who “might soon

commit” breaches of the peace such as “drunks in the bar” who “had not yet breached

the peace” but seemed like they might. Id. at 469. Officials relied on the law to

“arrest, escort out of town, or generally hassle those who were not welcome.” Id. at

470. The concurrence noted that application of the statute in such a manner “would

not pass constitutional muster today” and would, instead, be considered

“constitutionally offensive.” Id. at 469–70.

      The Dyar concurrence stated that courts might best harmonize the “original

intent of the pre-Civil War statute” and “current constitutional” norms and

protections by using “the organizational principle of exigent circumstances” to

analyze when the requirements of Article 14.03 are satisfied. Id. at 470 (explaining


                                         15
that an exigency-based analysis would “make some sense out of the ‘suspicious

places’ language”); see id. at 470 n.13 (quoting Gerald S. Reamey’s Arrests in

Texas’s “Suspicious Places”: A Rule in Search of Reason, 31 Tex. Tech L.Rev. 931,

980 (2000)). 3

      The Dyar concurrence explained how an exigency framework would guide

the Article 14.03 analysis while adhering to Fourth Amendment jurisprudence:

      [If] police have probable cause to believe that person “X” has
      committed a felony or breach of the peace and he is found in “Y”
      location under “suspicious circumstances” and there is no time to obtain
      a warrant because: 1) the person will not otherwise remain at “Y”
      location; 2) the evidence of the crime will otherwise disappear; or 3) the
      person poses a continuing present threat to others, then police may
      arrest “X” without a warrant. On the other hand, if there are no exigent
      circumstances that call for immediate action or detention by the police,
      article 14.03(a)(1) cannot be used to justify a warrantless arrest. . . .
      [T]his construction best adheres to the legitimate historical purpose and



3
      An excerpt of the law review quote reads as follows:

      Necessity is the guiding principle in interpreting warrant exceptions.
      Therefore, not every crime scene qualifies as a suspicious place excusing a
      warrant. The correct question in crime scene cases is not whether an offense
      was committed at the place where the suspect is found, but whether some
      reason exists not to obtain prior judicial approval for the arrest. A certain
      level of exigency usually accompanies the bringing together of a suspect,
      criminal evidence (which may be evanescent), and probable cause in the
      place where the offense occurred.

      Dyar, 125 S.W.3d at 470 n.13 (Cochran, J., concurring) (quoting Gerald S. Reamey,
      Arrests in Texas’s “Suspicious Places”: A Rule in Search of Reason, 31 TEX. TECH
      L.REV. 931, 980 (2000)).



                                           16
      scope of the statute . . [and] also complies with Fourth Amendment
      jurisprudence.

Id. at 471.

      The concurrence’s framework was adopted by a majority of the Court of

Criminal Appeals one year later in Gallups. 151 S.W.3d at 202 (citing the Dyar

concurrence and requiring a showing that arrestee was in suspicious place and that

exigent circumstances existed to justify immediate arrest under Article 14.03(a)(1)).

The following year, the Court again expressly stated that Article 14.03(a)(1) requires

a showing that exigent circumstances existed. Swain, 181 S.W.3d at 366–67

(majority opinion adopted by seven judges with two others concurring, citing Dyar

concurrence and requiring showing of exigency). In light of this trio of Court of

Criminal Appeals cases, there can be no doubt that binding precedent requires a

showing of exigency when the State is relying on Article 14.03(a)(1). See id.;

Gallups, 151 S.W.3d at 202.

      The dissent remains doubtful, citing post-Swain cases that do not include an

exigency analysis. See Dissent Op. at *10–11 & n.3. Four of those cases are readily

distinguishable in that none involved the State arguing the Article 14.03(a)(1)

exception in response to a motion to suppress. For example, in Griffin v. State,

No. 03-15-00398-CR, 2017 WL 2229869 (Tex. App.—Austin May 19, 2017, pet.

ref’d) (mem. op., not designated for publication), the appellate issue was a claim of

ineffective assistance of counsel based on a failure to ever move to suppress

                                         17
evidence. Id. at *5. The appellate court affirmed on that issue with alternative

holdings: first, there was a strategic reason for counsel to not seek exclusion of the

evidence, and, second, the evidence was not subject to exclusion because the arrestee

had just assaulted a public official and was acting belligerently and aggressively to

the arresting officer, thereby permitting a warrantless arrest under Article

14.03(a)(1). Id. at *6. True, the ineffective-assistance-of-counsel opinion did not

discuss the exigency requirement. But, the opinion amply described the arrestee’s

agitated and aggressive state, which would have warranted a belief by the officer

that an arrest was necessary to prevent physical harm, and the opinion cited

approvingly other cases that did discuss the exigency requirement. See id. (citing

Dyar, Swain, and Cook v. State, 509 S.W.3d 591, 604 (Tex. App.—Fort Worth 2016,

no pet.)); see also Dyar, 125 S.W.3d at 471 (Cochran, J., concurring) (discussing

what would constitute exigency in context of Article 14.03(a)(1)). Neither Griffin

nor any other case cited in the dissenting opinion calls into question the Court of

Criminal Appeals’s direct statement of law that evidence of exigency is required

under Article 14.03(a)(1).

B.    The State has the burden to show an exigency

      It is the State’s burden, when arresting without a warrant, to prove that its

actions fell within one of the statutory warrantless-arrest exceptions. See Fry v. State,

639 S.W.2d 463, 467 (Tex. Crim. App. 1982); cf. Gutierrez v. State, 221 S.W.3d


                                           18
680, 685 (Tex. Crim. App. 2007) (in warrantless-search context, stating “the warrant

requirement is not lightly set aside, and the State shoulders the burden to prove that

an exception to the warrant requirement applies”). It is not the Court’s role to scour

the record for exigent or quasi-exigent circumstances. See Fry, 639 S.W.2d at 467

(rejecting argument that testimony supported finding of exigency for warrantless

arrest because testimony was “ambiguous at best” and, therefore, did not meet

State’s burden). When the State argues only one warrant exception, yet fails to meet

the evidentiary burden to establish that exception, and the trial court grants the

motion to suppress, this Court is bound to affirm the trial court’s grant of a motion

to suppress. See Brabson, 899 S.W.2d at 745–46 (“We must review the record to

determine if there is any valid basis upon which to affirm the [trial] court’s ruling.”);

Donohoo, 2016 WL 3442258, at *6 (affirming trial court order granting motion to

suppress because State failed to present evidence of exigency).

C.    Facts and circumstances identified in the dissent do not satisfy the State’s
      burden under a per se or fact-specific analysis

      Without holding the State to its evidentiary burden, the dissent looks to the

record and identifies three facts that, in the dissent’s view, would suffice to show an

exigency: (1) McGuire having “shown his willingness to flee,” (2) a need to preserve

evidence in the form of the motorcycle bumper lodged in McGuire’s truck, and

(3) McGuire’s suspected intoxication. Even if a review of the record for exigency



                                           19
were permitted without the State making any showing in support of its burden, none

of the three arguments meets the threshold.

      Fist, evidence that McGuire might have fled the scene if not arrested is

ambiguous at best, and ambiguity in this context is resolved against the State. Fry,

639 S.W.2d at 467. Yes, this Court has held that legally sufficient evidence existed

to support the jury’s determination that McGuire failed to comply with the technical

requirements of the stop-and-render-aid statute when he left the scene of impact and

drove to the gas station. See McGuire v. State, 493 S.W.3d 177, 204–07 (Tex.

App.—Houston [1st Dist.] 2016, pet. ref’d), cert. denied 137 S. Ct. 2188 (2017)

(noting McGuire did not get out of his truck to determine whether an injured person

might be near the known spot of impact or call emergency services; he, instead, went

to a gas station and waited for police to come to him). But that evidence cannot

reasonably be argued to suggest that McGuire was likely to flee from police. He

went directly to a gas station, called police personnel, waited for police to come to

him, and called his mother to bear witness to the entire episode. Once the police

arrived, he voluntarily answered questions and left with them. Speculation that

McGuire might have called his mother and the police to his location only to flee

once they arrived does not show exigency. Moreover, had the State chosen to make

this argument, itself, its most likely vehicle would have been Article 14.04, not




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14.03, because Article 14.04 permits the warrantless arrest of suspected felons who

are “about to escape.” See TEX. CODE CRIM. PROC. art. 14.04.

      Second, the police had more options than choosing to arrest McGuire or to

allow the possible destruction of evidence on his truck: the State could have seized

the truck. See Dismukes v. State, 919 S.W.2d 887, 893–94 (Tex. App.—Beaumont

1996, pet. ref’d) (with proper showing, including existence of probable cause, police

may seize vehicle without warrant and hold the vehicle “for whatever period is

necessary to obtain a warrant for the search,” detached from any arrest).

      Third, suspected intoxication and a related need to determine a suspect’s

blood-alcohol content no longer provide a per se exigency. McNeely, 569 U.S. at

141; see McGuire, 493 S.W.3d at 199. The dissent argues that McNeely’s no-per-se-

exigency holding is limited to invasive searches to obtain a suspect’s blood and does

not apply to arrests. This position must be rejected in light of the rationale provided

in McNeely, the broader protections provided by the Texas warrantless-arrest statute

beyond federal constitutional protections, and the perverse results that would follow

under the dissent’s construction.

      The dissent posits that the need to expeditiously draw a suspect’s blood to

determine its blood-alcohol content could supply a per se exigency to arrest a person

without approaching the judiciary for an arrest warrant, even though, under

McNeely, the police would not have automatic legal authority to then draw the


                                          21
suspect’s blood without approaching that same judicial actor for a search warrant (or

establishing case-specific exigency). If an articulated need does not automatically

excuse the State from approaching the judiciary to obtain a search warrant, as

McNeely holds, it cannot follow that the same need would automatically excuse the

State from approaching the judiciary for an arrest warrant, given that the State would

be required to approach the judiciary anyway, in the interim as it held the suspect in

custody.

      The State should not be permitted to invoke a particular assertion of exigency

to invariably allow a predicate step to a desired law-enforcement activity when the

United States Supreme Court has explicitly prohibited that same exigency from per

se authorizing the desired activity. Cf. State v. Villarreal, 475 S.W.3d 784, 808 (Tex.

Crim. App. 2014) (rejecting State’s argument that dissipation of alcohol can provide

per se exigency for search incident to arrest when it cannot supply per se exigency

for search, itself, under McNeely).

      The incongruence of recognizing a per se exigency for a predicate step when

it cannot authorize the actual police activity that is the focus of the encounter cannot

be explained away under a theory that the sanctity of one’s freedom from searches

and from arrests are markedly different in a constitutional sense. See Dissent Op. at

*16–17. The requirement of a search warrant and the requirement of an arrest

warrant do not derive from distinct areas of law with different standards or concepts


                                          22
of exigency—they both derive from the Fourth Amendment. As the United States

Supreme Court has affirmed, the principles in the Fourth Amendment “apply to all

invasions on the part of the government and its employees of the sanctity of a man’s

home and the privacies of life.” Boyd v. United States, 116 U.S. 616, 630 (1886);

see Crane v. State, 786 S.W.2d 338, 346 (Tex. Crim. App. 1990) (“In order for a

warrantless arrest or search to be justified, the State must show the existence of

probable cause at the time the arrest or search was made and the existence of

circumstances which made the procuring of a warrant impracticable.”). If dissipating

blood-alcohol levels are not considered a per se exigency in the search context, they

are not a per se exigency to justify a warrantless arrest for the purpose of conducting

a search. To treat arrests differently than searches in this context would allow the

government to subvert McNeely. It also would obviate the extra protection the

Article 14.03(a)(1) exigent-circumstances requirement affords the public against

unreasonable governmental intrusion beyond Fourth Amendment protections.

                                     Conclusion

      We affirm the trial court’s order granting McGuire’s motion to suppress.




                                               Sarah Beth Landau
                                               Justice

Panel consists of Justices Keyes, Higley, and Landau.

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Justice Keyes, dissenting.

Publish. TEX. R. APP. P. 47.2(b).




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