Opinion issued April 2, 2015




                                       In The

                                Court of Appeals
                                      For The

                           First District of Texas
                              ————————————
                               NO. 01-14-00120-CR
                             ———————————
                       THE STATE OF TEXAS, Appellant
                                          V.
                          ALLEN TERCERO, Appellee


                    On Appeal from the 434th District Court
                           Fort Bend County, Texas
                     Trial Court Case No. 10-DCR-056111


                                   OPINION

      In this driving while intoxicated (“DWI”) case, the State of Texas appeals

from the trial court’s order granting appellee Allen Tercero’s motion to suppress

results of a warrantless blood-draw. In two issues, the State argues that (1) the trial

court erred in concluding that drawing Tercero’s blood without a warrant violated
the Fourth Amendment of the United States Constitution, and (2) the trial court

erred “when it impliedly held that Texas Transportation Code [section]

724.012(b)(3)(B) is unconstitutional.”

      We affirm.

                                   Background

      Officers K. Hogg and J. Huang observed Tercero’s vehicle driving late at

night with a flat tire. They followed Tercero into a nearby parking lot. Officer

Hogg approached Tercero, who was then standing outside his vehicle talking on a

cell phone, and noticed that he demonstrated signs of intoxication, including the

smell of alcohol on his breath, bloodshot eyes, and slow, slurred speech. Tercero

refused to perform field sobriety tests, so Officer Hogg placed him under arrest for

DWI. Tercero refused to provide a specimen of his breath or blood. However, the

officers learned that he had two previous convictions for DWI and believed they

had authority to conduct a warrantless blood draw pursuant to Transportation Code

chapter 724. Accordingly, they transported Tercero to a local hospital where a

medical professional collected the specimen of Tercero’s blood.

      Officer Hogg testified that he encountered Tercero in a parking lot across the

street from the police station, and, thus, he was in close proximity to the police

department. He testified that there was no exigency that affected his ability to

procure a warrant. He stated that he could have obtained a warrant if he had



                                         2
wanted to do so, but he had chosen not to, based on his understanding of the

applicable provisions of the Transportation Code.

      Tercero moved to suppress evidence against him, including any statements

and blood evidence, on the basis that his arrest was warrantless and, therefore,

illegal under both the Fourth Amendment of the United States Constitution and the

Texas Constitution. Tercero further argued at the end of the suppression hearing

that the recent United States Supreme Court case Missouri v. McNeely supported

his contention that the warrantless, nonconsensual taking of his blood sample

violated his Fourth Amendment rights.

      The trial court granted Tercero’s motion to suppress in part, ordering that the

blood evidence should be suppressed because it was taken without a warrant and

because “[no] exigent circumstances existed to justify a warrantless blood draw.”

The trial court specifically found that Tercero’s blood was drawn without his

consent or a warrant, that Officer Hogg “did not seek a warrant even though he

testified he had the means to secure a warrant without significantly undermining

the efficacy of the search,” and that “[n]o exigent circumstances existed because

there were several officers on the scene to aid [in] investigating the DWI and

Officer Hogg testified he could have secured a warrant if he desired and [he]

himself testified no exigent circumstances existed excusing him from securing a

warrant.” The trial court concluded that Officer Hogg’s blood draw was a search



                                         3
and seizure in violation of the Fourth Amendment of the United States

Constitution, that a warrant was required to seize Tercero’s blood absent exigent

circumstances, and that no exigent circumstances existed to justify a warrantless

blood draw. This appeal by the State followed.

                                Motion to Suppress

      In its first issue, the State argues that the trial court erred in suppressing the

results of Tercero’s blood test. Specifically, the State argues that Tercero was

“deemed to have consented to submit to the taking of one or more specimens” of

blood pursuant to Texas’s implied consent statutory framework as set out in

Transportation Code chapter 724. It also argues that McNeely did not invalidate

the Texas mandatory blood draw scheme, that the “totality of the circumstances”

test set out in Schmerber v. California is still valid, and that “the mandatory blood

draw statute here essentially enshrines an exigency in the statutory framework of

the kind recognized by Schmerber.”

      The State further argues that even if McNeely does invalidate the implied

consent and mandatory blood draw statutes, it should not be applied retroactively

to this case.    In supplemental briefing, the State argues that the officer’s

warrantless drawing of the blood sample was undertaken as a result of a reasonable

mistake of law and, thus, the blood draw without a warrant was reasonable under

the Fourth Amendment.



                                           4
A.    Standard of Review

      We review a ruling on a motion to suppress evidence for an abuse of

discretion. Shepherd v. State, 273 S.W.3d 681, 684 (Tex. Crim. App. 2008) (citing

State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006)). When we review a

trial court’s ruling on a motion to suppress, we give “almost total deference to a

trial court’s express or implied determination of historical facts and review de novo

the court’s application of the law of search and seizure to those facts.” Id. We

view the evidence in the light most favorable to the trial court’s ruling. Wiede v.

State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007) (quoting State v. Kelly, 204

S.W.3d 808, 818 (Tex. Crim. App. 2006)). The trial court is the “sole trier of fact

and judge of credibility of the witnesses and the weight to be given to their

testimony.” St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007).

The trial court may choose to believe or disbelieve any part or all of a witness’s

testimony. Green v. State, 934 S.W.2d 92, 98 (Tex. Crim. App. 1996). We 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).

      The Fourth Amendment protects against unreasonable searches and seizures.

U.S. CONST. amend. IV; State v. Villarreal, —S.W.3d—, No. PD-0306-14, 2014

WL 6734178, at *8 (Tex. Crim. App. Nov. 26, 2014). The taking of a blood



                                          5
specimen is a search and seizure under the Fourth Amendment. Schmerber v.

California, 384 U.S. 757, 767, 86 S. Ct. 1826, 1834 (1966); Villarreal, 2014 WL

6734178, at *9.

      “In general, to comply with the Fourth Amendment, a search of a person

pursuant to a criminal investigation (1) requires a search warrant or a recognized

exception to the warrant requirement, and (2) must be reasonable under the totality

of the circumstances.” Villarreal, 2014 WL 6734178, at *8; see also Katz v.

United States, 389 U.S. 347, 357, 88 S. Ct. 507, 514 (1967) (holding that

warrantless search or seizure is per se unreasonable unless it falls under recognized

exception to warrant requirement).        Established exceptions to the warrant

requirement include the consent exception, the exigency exception, the automobile

exception, the search-incident-to-arrest exception, and the special-needs doctrine.

See Villarreal, 2014 WL 6734178, at *8 (discussing consent, automobile, search-

incident-to-arrest, and special-needs exceptions); Gore v. State, 451 S.W.3d 182,

193–97 (Tex. App.—Houston [1st Dist.] 2014, pet. filed) (discussing exigency

exception). There is no case that establishes Texas’s implied consent statute as an

exception to the warrant requirement. See Villarreal, 2014 WL 6734178 at *8, 17

(rejecting argument that warrantless, nonconsensual blood draw conducted

pursuant to implied consent statute should be upheld as reasonable in light of

legislature’s clear intent to except such searches from warrant requirement).



                                         6
      In Schmerber v. California, the Supreme Court upheld a warrantless blood

test of a DWI suspect involved in a car crash because the officer “might reasonably

have believed that he was confronted with an emergency, in which the delay

necessary to obtain a warrant, under the circumstances, threatened the destruction

of evidence.”    384 U.S. at 770–71, 86 S. Ct. at 1835–36.          In reaching this

conclusion, the Schmerber Court stated, “Search warrants are ordinarily required

for searches of dwellings, and absent an emergency, no less could be required

where intrusions into the human body are concerned.” Id. at 770, 86 S. Ct. at

1835. In excepting Schmerber’s blood test from this general warrant requirement,

the Supreme Court identified exigent circumstances present in that case: the

dissipation of alcohol as the body functions to eliminate it from the system, the

time taken to investigate the crash and bring the accused to the hospital, and the

lack of time to seek out a magistrate and obtain a warrant. Id. at 770–71, 86 S. Ct.

at 1835–36. The Schmerber Court also considered the fact that the test chosen to

measure the accused’s blood-alcohol level was a reasonable one and that it was

conducted in a reasonable manner. Id. at 771, 86 S. Ct. at 1836. The Court

concluded that Schmerber’s right to be free of unreasonable searches or seizures

was not violated, and it stated, “It bears repeating, however, that we reach this

judgment only on the facts of the present record.” Id. at 772, 86 S. Ct. at 1836.




                                          7
      The Supreme Court has since recognized the exigent-circumstances

exception to the warrant requirement as applying “when the exigencies of the

situation make the needs of law enforcement so compelling that a warrantless

search is objectively reasonable under the Fourth Amendment.”            Missouri v.

McNeely, 133 S. Ct. 1552, 1558 (2013); Kentucky v. King, 563 U.S. —, —, 131 S.

Ct. 1849, 1856 (2011). “To determine whether a law enforcement officer faced an

emergency that justified acting without a warrant, this Court looks to the totality of

the circumstances.” McNeely, 133 S. Ct. at 1559 (citing Brigham City v. Stuart,

547 U.S. 398, 406, 126 S. Ct. 1943, 1949 (2006)); see Schmerber, 384 U.S. at 770–

71, 86 S. Ct. at 1835–36 (applying totality-of-circumstances approach in analyzing

whether exigent circumstances justified warrantless blood test).

      In McNeely, the Supreme Court considered and rejected Missouri’s claim

that “so long as the officer has probable cause and the blood test is conducted in a

reasonable manner, it is categorically reasonable for law enforcement to obtain the

blood sample without a warrant.” 133 S. Ct. at 1560–61. The McNeely Court

refused to recognize a per se exigency justifying a warrantless search and held,

“consistent with general Fourth Amendment principles, that exigency in this

context must be determined case by case based on the totality of the

circumstances.” Id. at 1556. McNeely reaffirmed that a warrantless search of a

person for the purpose of gathering evidence in a criminal investigation can be



                                          8
justified “only if it falls within a recognized exception” to the warrant requirement,

and that this principle applies to compulsory blood collection during a DWI

investigation. Id. at 1558; Villareal, 2014 WL 6734178, at *9.

B.    Texas’s Implied Consent Statute as an Exception to the Warrant
      Requirement

      Here, the State first argues that Tercero was “deemed to have consented” to

the blood test under provisions of the Texas Transportation Code that establish

implied consent to the taking of breath or blood specimens for all drivers arrested

on suspicion of DWI, principally section 724.011, which provides:

      If a person is arrested for an offense arising out of acts alleged to have
      been committed while the person was operating a motor vehicle in a
      public place . . . the person is deemed to have consented, subject to
      this chapter, to submit to the taking of one or more specimens of the
      person’s breath or blood for analysis to determine the alcohol
      concentration or the presence in the person’s body of a controlled
      substance, drug, dangerous drug, or other substance.

TEX. TRANSP. CODE ANN. § 724.011(a) (Vernon 2011); Villarreal, 2014 WL

6734178, at *6.

      Section 724.011 is “modified by section 724.013, which establishes a right

to refuse to provide a breath or blood sample in routine DWI cases.” TEX. TRANSP.

CODE ANN. § 724.013 (Vernon 2011) (providing that “a specimen may not be

taken if a person refuses to submit to the taking of a specimen designated by a

peace officer”); Villarreal, 2014 WL 6734178, at *6.




                                          9
      However, Transportation Code section 724.012(b) establishes that when

certain aggravating factors are present during a DWI stop an officer is required to

obtain a specimen even if the suspect refuses.           TEX. TRANSP. CODE ANN.

§ 724.012(b) (Vernon 2011); Villarreal, 2014 WL 6734178, at *6. Specifically,

section 724.012(b)(3)(B) provides that a peace officer “shall require the taking of a

specimen of the person’s breath or blood” if the arrest is for an offense “involving

the operation of a motor vehicle . . . and the person refuses the officer’s request to

submit to the taking of a specimen voluntarily” and if, “at the time of the arrest, the

officer possesses or receives reliable information from a credible source that the

person . . . on two or more occasions, has been previously convicted of . . . an

offense under Section 49.04, 49.05, 49.06, or 49.065, Penal Code.” TEX. TRANSP.

CODE ANN. § 724.012(b)(3)(B); Villarreal, 2014 WL 6734178, at *7. Thus, in

relevant part, the Transportation Code provides for a mandatory blood draw if the

defendant has two prior DWI convictions.

      The State essentially argues that the mandatory blood draw may be taken

pursuant to the implied-consent statute without a warrant and without the

necessity of establishing a recognized exception to the warrant requirement. In

State v. Villarreal, however, the Court of Criminal Appeals rejected the State’s

contention that the implied-consent and mandatory-blood-draw provisions of the

Transportation Code establish a constitutionally valid basis for conducting a



                                          10
nonconsensual, warrantless search. Villarreal, 2014 WL 6734178, at *6–8. The

Court of Criminal Appeals held that, “to be valid for Fourth Amendment purposes,

consent must be freely and voluntarily given based on the totality of the

circumstances, and must not have been revoked or withdrawn at the time of the

search.” Id. at 11 (citing Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S. Ct.

2041, 2047–48 (1973), and Florida v. Jimeno, 500 U.S. 248, 252, 111 S. Ct. 1801,

1804 (1991)).

      This Court has likewise held that the implied-consent and mandatory-blood-

draw provisions do not justify a blood draw undertaken in the absence of a warrant

or recognized exception to the warrant requirement. Gore, 451 S.W.3d at 193. We

held that “implied consent that cannot be withdrawn does not meet the

requirements for voluntary consent under the Fourth Amendment.” Id.; see also

State v. Anderson, 445 S.W.3d 895, 908 (Tex. App.—Beaumont 2014, no pet.)

(concluding that section 724.012(b) “does not constitute an exception to the Fourth

Amendment’s warrant requirement”); Aviles v. State, 443 S.W.3d 291, 294 (Tex.

App.—San Antonio 2014, pet. filed) (op. on remand) (holding same); Forsyth v.

State, 438 S.W.3d 216, 222–23 (Tex. App.—Eastland 2014, pet. ref’d) (holding

that implied consent under Transportation Code is not equivalent to voluntary

consent for Fourth Amendment purposes).




                                        11
      The Court of Criminal Appeals in Villarreal stated, “We agree with these

courts’ assessments that, in the context of a nonconsensual, warrantless bodily

search of a person suspected of criminal activity, a statute providing for irrevocable

implied consent cannot supply the type of voluntary consent necessary to establish

an exception to the Fourth Amendment warrant requirement.” 2014 WL 6734178,

at *14. It concluded that “implied consent that has been withdrawn or revoked by

a suspect cannot serve as a substitute for the free and voluntary consent that the

Fourth Amendment requires.” Id. at *11.

      Here, it is undisputed that Tercero refused to provide either a blood or breath

specimen at the time he was arrested for DWI and that Officer Hogg did not obtain

a warrant. We conclude that, under the totality of the circumstances, Tercero had

not freely and voluntarily given consent to the search, and he revoked or withdrew

any implied consent at the time of the search. Thus, we conclude that Tercero did

not provide consent to the blood draw consistent with the requirements of the

Fourth Amendment. See Schneckloth, 412 U.S. at 227, 93 S. Ct. at 2047–48;

Villarreal, 2014 WL 6734178, at *11, 14; Gore, 451 S.W.3d at 193.

C.    General Fourth Amendment Balancing Test

      The State further argues, however, that McNeely did not invalidate

Schmerber, which applied the totality-of-the-circumstances test to a determination

of whether exigent circumstances justified deviating from the general warrant



                                         12
requirement in a particular case. 384 U.S. at 770–71, 86 S. Ct. at 1835–36. It

argues that “[t]he ultimate question in Fourth Amendment analysis is that of

reasonableness, which necessarily weighs privacy interests versus societal interests

in public safety and law enforcement,” and that Texas’s mandatory-blood-draw

and implied-consent statutory scheme satisfies this balancing test.

      We acknowledge that McNeely did not overrule Schmerber. See McNeely,

133 S. Ct. at 1556 (clarifying that Schmerber did not create per se exigency

exempting blood alcohol tests from warrant requirement and that determination of

existence of exigent circumstances must be done on case-by-case basis based on

totality of circumstances); see also Gore, 451 S.W.3d at 194 (“The McNeely court

did not overrule Schmerber, it merely held that exigency must be determined on a

case-by-case basis, and that the metabolization of alcohol did not create a per se

situation of exigency.”). However, McNeely reaffirmed the Supreme Court’s prior

holdings that “a warrantless search of the person is reasonable only if it falls within

a recognized exception” to the warrant requirement. McNeely, 133 S. Ct. at 1558

(citing United States v. Robinson, 414 U.S. 218, 224, 94 S. Ct. 467, 471–72

(1973)).

      The Court of Criminal Appeals recognized this holding in Villarreal and

concluded that a search of a person conducted pursuant to a criminal investigation

requires a search warrant or a recognized exception to the warrant requirement.



                                          13
2014 WL 6734178, at *8 (citing McNeely, 133 S. Ct. at 1558, Riley v. California,

134 S. Ct. 2473, 2482 (2014), and King, 131 S. Ct. at 1856). In Villarreal, the

State argued, as it does here, that the warrantless taking of a blood sample could be

upheld under a general Fourth Amendment balancing test when the defendant has

had two prior DWI convictions and has thus impliedly consented to the blood

draw. Id. at *16. The Court of Criminal Appeals rejected this argument, stating,

“[W]e disagree that a balancing test is appropriate given the context.” Id. at *17.

The Villarreal court cited several United States Supreme Court opinions, including

McNeely and Riley, in concluding that “[t]he Supreme Court has made clear that, in

the context of an active criminal investigation, and when the primary goal of law-

enforcement activity is the gathering of evidence, a warrantless search of a person

is unreasonable unless it falls within an established exception to the warrant

requirement.” Id. (citing McNeely, 133 S. Ct. at 1558, and Riley, 134 S. Ct. at

2482).

      The Court of Criminal Appeals further stated that even if it were to accept

the viability of a balancing test as a substitute for the established exceptions to the

warrant requirement, it “would conclude that, on balance, a DWI suspect’s privacy

interest outweighs the State’s interest in preventing drunk driving through

warrantless searches.” Id. at *18. It opined, “McNeely reaffirmed the principle

that a compelled physical intrusion beneath the skin to obtain evidence in a



                                          14
criminal investigation implicates significant privacy interests, and this privacy

interest is not automatically diminished simply because an individual is suspected

of a serious DWI offense.” Id. (citing McNeely, 133 S. Ct. at 1558).

      McNeely also held that “‘the general importance of the government’s interest

in [curbing DWI offenses] does not justify departing from the warrant requirement

without a showing’ that some established exception, such as exigency, applies.”

Id. (quoting McNeely, 133 S. Ct. at 1565).         The Court of Criminal Appeals

“acknowledge[d] the magnitude of the drunk driving problem in Texas and the

government’s legitimate and substantial interest in curbing that problem,” but it

held that solving the problem “through warrantless, nonconsensual searches of

suspects’ blood” violates the Fourth Amendment, especially “in light of the fact

that warrants for such blood testing are often readily available.” Id.

      Here, we likewise “decline to disregard [these] well-establish[ed] principles

in favor of a more generalized balancing-of-interests test.” See id. at *17–18. We

conclude, as the court did in Villarreal, that a general balancing test is not

appropriate here to justify a warrantless blood draw, and even if it were, the State’s

interest in curbing drunk driving through the use of warrantless searches does not

outweigh a DWI suspect’s privacy interest. We conclude that the warrantless

taking of Tercero’s blood sample pursuant to Texas’s implied-consent and

mandatory-blood-draw statutory scheme did not satisfy the requirements of the



                                          15
Fourth Amendment without a showing that some established exception to the

warrant requirement applied and that, here, none did apply. See id. at *11, 18;

Gore, 451 S.W.3d at 193; see also McNeely, 133 S. Ct. at 1565 (holding that “the

general importance of the government’s interest in [curbing DWI offenses] does

not justify departing from the warrant requirement without a showing” that some

established exception to warrant requirement applies).

      The State does not argue that any other exception to the warrant requirement

applies in this case. See Amador v. State, 221 S.W.3d 666, 672–73 (Tex. Crim.

App. 2007) (holding that once defendant establishes absence of warrant, State must

prove that warrantless search was reasonable under totality of circumstances);

Gore, 451 S.W.3d at 193 (holding, where appellant withdrew any implied consent

that she may have given and affirmatively refused to give consent for warrantless

blood draw, that warrantless search “may not be premised on the consent exception

to the warrant requirement” and that “the State must come forth with some other

recognized exception to the warrant requirement”). In fact, the trial court found,

based on Officer Hogg’s own direct testimony, that no exigent circumstances

existed to justify a warrantless blood draw. Nor did it find any other established

exception to the warrant requirement.




                                        16
D.    Application of McNeely

      The State argues that even if McNeely invalidates the Transportation Code’s

mandatory-blood-draw and implied-consent provisions, it should not be applied

“retroactively” to this case.

      New constitutional rules governing the conduct of criminal prosecutions

must be “applied retroactively to all cases, state or federal, pending on direct

review or not yet final” when the rule was announced, regardless of whether they

constitute a clear break from past precedent. Griffith v. Kentucky, 479 U.S. 314,

328, 107 S. Ct. 708, 716 (1987); Steadman v. State, 360 S.W.3d 499, 504 n.13

(Tex. Crim. App. 2012); Taylor v. State, 10 S.W.3d 673, 678 (Tex. Crim. App.

2000).

      We first note that it does not appear that McNeely set out a new

constitutional rule—rather, it declined to recognize one. McNeely clarified that

Schmerber did not create a per se exigency in the case of blood alcohol evidence,

but instead only recognized that exigent circumstances might, in limited

circumstances, provide an exception to the warrant requirement. McNeely, 133 S.

Ct. at 1556–58. McNeely reaffirmed the Supreme Court’s prior rulings that the

admissibility of blood evidence taken pursuant to the exigency exception to the

warrant requirement must be reviewed on a case-by-case basis under a totality of

the circumstances. Id. Moreover, even if McNeely and the Texas cases applying it



                                       17
did set out a new rule, that rule would apply here. McNeely was decided in April

2013, and the hearing on Tercero’s motion to suppress occurred on September 13,

2013. Thus, this case was clearly not yet final at the time McNeely was announced

and it applies here on direct appeal. See Griffith, 479 U.S. at 328, 107 S. Ct. at

716; Steadman, 360 S.W.3d at 504 n.13; Taylor, 10 S.W.3d at 678.

E.    Good-Faith Exception to Texas’s Exclusionary Rule for Mistake of Law

      The State further argues that because Officer Hogg acted in good faith

reliance on the Transportation Code’s provisions at the time he collected Tercero’s

blood sample, the evidence should not be excluded under Texas’s exclusionary

rule, set out in Code of Criminal Procedure article 38.23.

      However, Officer Hogg’s good faith reliance on his belief that the

Transportation Code permitted him to collect Tercero’s blood sample without a

warrant or a recognized exception to the warrant requirement is irrelevant here.

Texas has adopted an exclusionary rule that is broader than its federal counterpart.

Miles v. State, 241 S.W.3d 28, 34 (Tex. Crim. App. 2007).               The Texas

exclusionary rule provides:

      (a)    No evidence obtained by an officer or other person in violation
             of any provisions of the Constitution or laws of the State of
             Texas, or of the Constitution or laws of the United States of
             America, shall be admitted in evidence against the accused on
             the trial of any criminal case.
      ....




                                         18
      (b)    It is an exception to the provisions of Subsection (a) of this
             Article that the evidence was obtained by a law enforcement
             officer acting in objective good faith reliance upon a warrant
             issued by a neutral magistrate based on probable cause.

TEX. CODE CRIM. PROC. ANN. art. 38.23 (Vernon 2005).

      Thus, evidence obtained in violation of a constitutional provision shall not

be admitted in evidence against Tercero, and the only exception provided for by

the Texas Legislature depends upon issuance of a warrant based on probable cause.

Id. It is undisputed that no such warrant existed in this case, and thus this “good-

faith exception” does not apply here. See Douds v. State, 434 S.W.3d 842, 861–62

(Tex. App.—Houston [14th Dist.] 2014, pet. granted).

      The State argues that we should expand the statutory “good-faith” exception

to include this situation, where the officer acted on a good faith belief that the law

justified his actions. However, the State’s reliance on Heien v. North Carolina and

similar federal authority is misplaced. In Heien, the Supreme Court concluded that

the Fourth Amendment allowed reasonable suspicion as required for a traffic stop

or an investigatory stop to rest on a reasonable mistake of law. 135 S. Ct. 530,

536–37 (2014). Heien is distinguishable on its facts because it dealt with the

formation of reasonable suspicion necessary to initiate an investigatory stop, not a

mistake of law that might permit a warrantless, nonconsensual search of a person.

See id. And, as our sister court recognized in a similar case, “The Court of

Criminal Appeals has previously rejected an effort to broaden [Texas’s statutory]


                                         19
good-faith exception using federal precedent, and it has refused to adopt federal

exceptions inconsistent with the text of our statutory exclusionary rule.” Douds,

434 S.W.3d at 861–62 (citing Wehrenberg v. State, 416 S.W.3d 458, 473 (Tex.

Crim. App. 2013), State v. Daugherty, 931 S.W.2d 268, 270 (Tex. Crim. App.

1996), and Howard v. State, 617 S.W.2d 191, 193 (Tex. Crim. App. 1979) (op. on

reh’g)).

      Accordingly, we decline to apply the “reasonable mistake of law” reasoning

from Heien to create a new exception inconsistent with the text of article 38.23.

Because the warrantless, nonconsensual blood draw here violated Tercero’s Fourth

Amendment rights, we conclude that the trial court did not err in suppressing the

blood evidence. See Laney, 117 S.W.3d at 857 (holding that we sustain trial

court’s ruling if it is reasonably supported by record and correct on any applicable

theory of law).

      We overrule the State’s first issue.

           Constitutionality of Transportation Code section 724.012

      In its second issue, the State argues that the trial court erred in impliedly

ruling that Transportation Code section 724.012(b)(3)(B) is unconstitutional.

However, we reject the contention that the trial court impliedly found

Transportation Code section 724.012(b)(3)(B) unconstitutional. The trial court did




                                         20
not issue any findings of fact or conclusions of law relevant to the facial

constitutionality of the statute, nor was it asked or required to do so in this case.

      This Court has previously held that section 724.012(b) was not facially

unconstitutional even though it was applied in a way that violated a particular

defendant’s Fourth Amendment rights. Gore, 451 S.W.3d at 188–89, 197–98. We

stated in Gore that “[s]ection 724.012(b) merely requires an officer to take a blood

or breath specimen in certain circumstances” and that the statute is “mandatory” in

the sense that “the officer has no discretion in [the enumerated situations] to obtain

either a blood or a breath specimen.” Id. at 188 (quoting McGruder v. State, No.

10-13-00109-CR, 2014 WL 3973089, at *3 (Tex. App.—Waco Aug. 14, 2014, pet.

granted)). We observed that “as written, section 724.012(b) does not require a

blood or breath specimen to be taken contrary to the Fourth Amendment” and that

“[i]t is the officer’s failure to obtain a warrant and the State’s failure to prove an

exception to the warrant requirement, not the mandatory nature of the blood draw

statute, that violate the Fourth Amendment.” Id. at 189 (quoting McGruder, 2014

WL 3973089, at *3, and citing Douds, 434 S.W.3d at 861). We concluded that “a

nonconsensual blood draw, with a warrant, would not be constitutionally infirm.”

Id.

      Likewise, here, the trial court was not required to determine that section

724.012(b) was facially unconstitutional in order to determine that the



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nonconsensual, warrantless taking of Tercero’s blood specimen violated his Fourth

Amendment rights.

      We overrule the State’s second issue.

                                    Conclusion

      We affirm the ruling of the trial court granting Tercero’s motion to suppress

his nonconsensual, warrantless blood sample.




                                              Evelyn V. Keyes
                                              Justice

Panel consists of Justices Keyes, Bland, and Massengale.

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




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