Opinion issued April 12, 2016




                                     In The

                              Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                             NO. 01-14-00773-CR
                           ———————————
                     LYNDON ANSIL FEARS, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 405th District Court
                         Galveston County, Texas
                      Trial Court Case No. 12CR1877


                                 OPINION

      Following the trial court’s denial of his motion to suppress evidence of his

blood sample, appellant pleaded guilty to driving while intoxicated (“DWI”) with

two prior convictions, and the trial court assessed his punishment at ten years’
confinement. In his sole issue, appellant argues that the trial court erred in denying

his motion to suppress.

      We reverse and remand.

                                     Background

      At 11:02 p.m., appellant was stopped for speeding by an officer with the

Hitchcock Police Department. That officer noted several signs of intoxication, such

as the smell of alcohol and appellant’s slurred speech, and requested assistance from

the Texas Department of Public Safety (“DPS”) for a possible DWI suspect. Trooper

M. Guerra, with the DPS, arrived on the scene at approximately 11:27 p.m. and

conducted field sobriety testing, which appellant failed. Appellant was arrested for

DWI, and, after he refused to give a breath specimen, he was subjected to a

warrantless blood draw.

      At trial, appellant moved to suppress the evidence from the blood draw. He

argued that there was no statutory or other justification for obtaining his blood

sample without a warrant. He also argued specifically that there were no exigent

circumstances in his case that justified the taking of a warrantless blood sample.

      Trooper Guerra testified that the Hitchcock Police Department, located in

Galveston County, was “a smaller department [with] less manpower” and that he did

not believe all of its officers were certified to administer field sobriety tests. Trooper




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Guerra testified that it took him approximately fifteen to twenty minutes to drive to

the location where appellant was stopped.

      Trooper Guerra testified that, when he arrived on the scene, appellant was

handcuffed and waiting in the back of the patrol car. He stated that appellant had

“become belligerent” and had had to be placed in handcuffs “for officer safety.”

Trooper Guerra testified that he performed the horizontal gaze nystagmus (“HGN”)

test, and appellant demonstrated all six clues of intoxication. Trooper Guerra

attempted to administer the walk-and-turn test and the one-leg-stand test, but the

ground was too gravelly to allow appellant to complete the tests. Based on the HGN

test and his own observations of appellant’s behavior, Trooper Guerra arrested

appellant for DWI.

      Trooper Guerra testified that, upon being placed under arrest, appellant

became “very verbally abusive” and that he “was one of the more belligerent people

I’ve had to arrest.” He testified that appellant’s extreme belligerence affected his

investigation, causing him to be more cautious and slowing down the investigation.

Trooper Guerra transported appellant to the Hitchcock police station, read him

statutory warnings, and requested a sample of his breath, which appellant refused.

He also discovered that appellant had at least two prior DWI convictions, which he

testified obligated him to collect a blood sample. Trooper Guerra transported

appellant to Mainland Medical Center where the blood draw was done at 12:15 a.m.



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Appellant continued to be “uncooperative” and “verbally abusive,” and he had to be

restrained so that the blood sample could be taken.

      Trooper Guerra also testified regarding the warrant process. He testified that

during a “no-refusal” weekend a district attorney, judge, and nurse are all on call to

process DWI suspects, and it can take “upwards of an hour to two hours” to complete

the warrant process. However, appellant was not arrested during a no-refusal

weekend. Trooper Guerra also testified that, on one occasion, he had sought a search

warrant for a blood sample in a DWI case during business hours on a week day, and

the entire process took approximately three hours. He testified that, at the time of

appellant’s arrest, the district attorney’s office was closed, but there was an assistant

district attorney on call. He also testified that there was no judge on call. Due to these

factors, Trooper Guerra believed that it “would have taken considerably longer than

three hours” to complete the warrant process in appellant’s case.

      Assistant District Attorney James Haugh testified at the suppression hearing

regarding DWI investigations and the process for obtaining a search warrant. He

testified that the first step is for the officer to complete the probable cause affidavit

and that the amount of time it takes to complete this step “varies a lot.” Haugh

testified that it can take forty-five minutes to an hour, or even longer, depending on

the officer. After he receives the affidavit from the officer, he reviews it and

discusses any necessary changes with the police officer. His own review usually



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takes between thirty and forty minutes. Haugh testified that he would then have to

find a judge who could review the affidavit and sign a search warrant. Haugh stated

that Galveston County does not have a judge on call and that he would have to use

a list of judges’ phone numbers and call until he found one who was available. Once

a judge has been located, Haugh informs the police officer of the judge’s location,

and the officer takes the necessary documents to the judge for review.

        Haugh testified that no-refusal weekends happen several times each year, but

that during the rest of the year, there is no procedure to expedite the search-warrant

process. He stated that there is no electronic system allowing the department to scan

the search warrant and e-mail it to a judge. He also testified that his office’s policy

was not to procure search warrants unless there was an accident or someone was

hurt.

        The trial court denied appellant’s motion to suppress, finding that “exigent

circumstances existed which made the warrantless blood draw reasonable.” In

separate findings of fact and conclusions of law, the trial court found specifically

that appellant “was extremely belligerent and this belligerence slowed down the

DWI investigation because Trooper Guerra had to act with extra caution.” The trial

court also cited Trooper Guerra’s testimony that it would have taken “considerably

longer than three hours” to obtain a warrant for appellant’s blood specimen. The trial

court concluded that exigent circumstances existed because, “based on the facts, it



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would take an excessive amount of time to obtain a search warrant during which

time evidence would be destroyed.” Appellant subsequently pleaded guilty to the

DWI offense, and the trial court assessed his punishment at ten years’ confinement.

                                 Motion to Suppress

      Appellant argues that the trial court erred in denying his motion to suppress

because the police did not obtain a warrant prior to collecting his blood sample and

there was no evidence of exigent circumstances or other justification for the

warrantless blood draw.

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



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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; Missouri v. McNeely, 133 S. Ct. 1552, 1558 (2013). The

taking of a blood specimen is a search and seizure under the Fourth Amendment.

McNeely, 133 S. Ct. at 1558; Schmerber v. California, 384 U.S. 757, 767, 86 S. Ct.

1826, 1834 (1966).

      The Fourth Amendment requires that a search of a person as part of a criminal

investigation be conducted pursuant to a search warrant or a recognized exception

to the warrant requirement and that it be reasonable under the totality of the

circumstances. McNeely, 133 S. Ct. at 1558, 1563; 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).

      One well-recognized exception to the warrant requirement “applies 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.”

McNeely, 133 S. Ct. at 1558 (quoting Kentucky v. King, 563 U.S. 452, 460, 131 S.



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Ct. 1849, 1856 (2011)). “A variety of circumstances may give rise to an exigency

sufficient to justify a warrantless search,” including entering a home to provide

emergency assistance to an occupant, engaging in hot pursuit of a fleeing suspect, or

entering a burning building to put out a fire and investigate its cause. Id. at 1558–59.

The Supreme Court has also recognized “that in some circumstances law

enforcement officers may conduct a search without a warrant to prevent the

imminent destruction of evidence.” Id. at 1559.

      We must look to the “totality of circumstances” to determine whether a law

enforcement officer faced an emergency that justified acting without a warrant.

Gutierrez v. State, 221 S.W.3d 680, 686–87 (Tex. Crim. App. 2007). Specifically,

to validate a warrantless search based on exigent circumstances, the State must

satisfy a two-step process. Id. at 685. First, probable cause to search must exist—

that is, “reasonably trustworthy facts and circumstances within the knowledge of the

officer on the scene [that] would lead a man of reasonable prudence to believe that

the instrumentality . . . or evidence of a crime will be found.” Id. Second, the State

must establish the existence of an exigent circumstance justifying the warrantless

search. Id. Without establishing probable cause and exigent circumstances, a

warrantless search will not stand. Id. at 685–86; see also Schmerber, 384 U.S. at

768, 771, 86 S. Ct. at 1834, 1836 (holding that warrantless seizure of blood sample

can be constitutionally permissible if officers have probable cause to arrest suspect,



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exigent circumstances exist, and reasonable method of extraction is available, such

as venipuncture by appropriate individual).

B.    Analysis

      It is undisputed that the police did not obtain a warrant prior to taking

appellant’s blood sample, and appellant does not challenge the existence of probable

cause. Rather, appellant argues that the State failed to establish the existence of

exigent circumstances sufficient to justify its failure to obtain a warrant. Appellant

argues that Trooper Guerra did not attempt to contact a judge or ascertain if one was

available, and he argues that Trooper Guerra’s and Haugh’s testimony about warrant

procedures was not particularized to the facts of this case and does not support the

trial court’s finding of exigent circumstances. Appellant also argues that “[t]he

evidence does not support [a]ppellant’s non-cooperation as an exigent

circumstance.” We agree with appellant.

      Looking to the totality of the circumstances of this case, we observe that no

accident or complicated investigation occurred. Although Trooper Guerra testified,

and the trial court found, that appellant’s arrest happened late in the evening when

there was no judge on call to issue a search warrant, Haugh also testified that there

were approximately thirteen magistrate judges in Galveston County who could have

signed a warrant. Trooper Guerra testified that he did not attempt to obtain a warrant

because, based on one previous experience, it had taken three hours to obtain a



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search warrant, and he believed it would take “considerably longer” to obtain a

warrant for appellant. He also testified that appellant “was one of the more

belligerent people [he had] had to arrest” and that appellant’s conduct delayed and

slowed down his investigation. However, the evidence also indicated that appellant’s

blood was drawn forty-five minutes after Trooper Guerra first arrived at the scene

of appellant’s arrest, and Trooper Guerra admitted he did not try to obtain a warrant

to have appellant’s blood drawn in those forty-five minutes.

      Haugh testified generally regarding the process for obtaining a warrant when

no judge was on call, as was the case on the night appellant was arrested. He also

testified that there were no procedures that could have expedited that process and

that Galveston County did not have any means to transfer the required documents

between the judge and the police electronically. However, Haugh was not consulted

regarding appellant’s case, and he presented no testimony specific to the

circumstances surrounding appellant’s case.

      We conclude that neither the potential delay required to obtain a warrant from

one of thirteen magistrate judges in the county nor appellant’s belligerence created

an emergency that justified the State’s acting without a warrant. See Gutierrez, 221

S.W.3d at 685. In McNeely, the Supreme Court recognized a variety of

circumstances that may give rise to an exigency sufficient to justify conducting a

warrantless search, including entering a home to provide emergency assistance,



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engaging in hot pursuit of a fleeing suspect, entering a burning building to put out a

fire and investigate its cause, or taking actions to prevent the imminent destruction

of evidence. 133 S. Ct. at 1558–59. The State failed to demonstrate the existence of

any such emergency or imminent destruction of evidence in this case.

      This case is similar to the circumstances in Gore v. State, in which this Court

held that the State did not establish the existence of exigent circumstances. 451

S.W.3d 182, 197–98 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d). In Gore, the

arresting officer did not testify regarding why he felt he did not have time to get a

warrant, and instead, “the record [made] clear that he did not believe he needed a

warrant.” Id. at 197. Here, Trooper Guerra likewise testified that he did not believe

he needed a warrant, and his only testimony regarding why he felt he did not have

time to obtain one was based on one previous experience when it had taken him three

hours to obtain a warrant.

      Likewise, in Gore, an assistant district attorney testified generally regarding

the length of time involved in obtaining a warrant, but there was “no evidence of

whether that would have been true in this particular case.” Id. Here, Haugh testified

generally about the procedures for obtaining a warrant, but he offered no testimony

regarding appellant’s particular case and acknowledged that he was not the attorney

on call the night appellant was arrested. Thus, neither Trooper Guerra’s nor Haugh’s

testimony demonstrated “the practical problems of obtaining a warrant within a



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timeframe that still preserves the opportunity to obtain reliable evidence” as it related

to the totality of the circumstances in appellant’s case. See McNeely, 133 S. Ct. at

1568.

        And, as we observed in Gore, to accept general testimony “that it usually takes

two or three hours to get a warrant as sufficient evidence of exigency in every DWI

case would be to create a per se exigency rule, which McNeely expressly prohibits.”

See 451 S.W.3d at 197. Here, as in Gore, nothing in the record explains why officers

did not have time to obtain a warrant when “BAC evidence from a drunk-driving

suspect naturally dissipates over time in a gradual and relatively predictable

manner,” thus making it “likely that the BAC evidence would have nonetheless been

available” even if it took three hours to obtain the warrant. See id. (quoting McNeely,

133 S. Ct. at 1561).

        After implying all findings of historical facts in favor of the trial court’s ruling,

we conclude that the State failed to show the existence of an exigent circumstance

justifying police action without obtaining a warrant.

        We further conclude that the trial court’s erroneous denial of appellant’s

motion to suppress evidence of his blood alcohol level obtained in violation of the

Fourth Amendment contributed to his decision to plead guilty and to his subsequent

punishment. See Holmes v. State, 323 S.W.3d 163, 173–74 (Tex. Crim. App. 2009)

(applying Rule 44.2 and concluding that trial court’s erroneous ruling “contributed



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in some measure to the State’s leverage in the plea bargaining process”); Gore, 451

S.W.3d at 198; see also TEX. R. APP. P. 44.2(a) (“If the appellate record in a criminal

case reveals constitutional error that is subject to harmless error review, the court of

appeals must reverse a judgment of conviction or punishment unless the court

determines beyond a reasonable doubt that the error did not contribute to the

conviction or punishment.”).

      We sustain appellant’s sole issue on appeal.

                                     Conclusion

      We reverse the judgment of the trial court and remand for further proceedings

consistent with this opinion.




                                               Evelyn V. Keyes
                                               Justice

Panel consists of Justices Jennings, Keyes, and Bland.

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




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