                                        NO. 12-14-00086-CR

                              IN THE COURT OF APPEALS

                 TWELFTH COURT OF APPEALS DISTRICT

                                           TYLER, TEXAS

RICKY ARNOLD WELCH,                                      §        APPEAL FROM THE 4TH
APPELLANT

V.                                                       §        JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                                 §        RUSK COUNTY, TEXAS

                                        MEMORANDUM OPINION
        Ricky Arnold Welch appeals his conviction for felony driving while intoxicated, for
which he was sentenced to imprisonment for three years. In one issue, Appellant argues that the
trial court erred in denying his motion to suppress. We reverse and remand.


                                                 BACKGROUND
        On July 21, 2013, Appellant was arrested for driving while intoxicated (DWI).
Thereafter, Appellant was compelled to submit to a warrantless blood draw pursuant to the
implied consent provisions of Texas Transportation Code, section 724.
        Appellant was charged by indictment with felony DWI. The indictment further alleged
that Appellant had two prior DWI convictions. Appellant filed a pretrial motion to suppress the
results of the mandatory blood draw pursuant to the United States Supreme Court’s holding in
Missouri v. McNeely, 133 S. Ct 1552, 185 L. Ed. 2d 696 (2013).1 At the hearing on his motion
to suppress, Appellant testified that he was told his blood would be drawn “whether [he] like[d]
it or not.” Appellant further testified that he believed he had no choice but to consent to the

        1
           In McNeely, the Court held that the natural metabolization of alcohol in the bloodstream does not present
a per se exigency that justifies an exception to the Fourth Amendment’s warrant requirement for nonconsensual
blood testing in all drunk driving cases. See id., 133 S. Ct. at 1563, 1568. Instead, consistent with general Fourth
Amendment principles, exigency in this context must be determined case by case based on the totality of the
circumstances. See id., 133 S. Ct. at 1563.
blood draw. No further evidence was presented during the hearing, and the trial court overruled
Appellant’s motion.
       Immediately thereafter, pursuant to a plea agreement with the State, Appellant pleaded
“guilty” as charged. The arresting officer’s report was admitted into evidence. In the report, the
officer states that Appellant agreed to provide a blood specimen. The trial court found Appellant
“guilty” as charged and sentenced him to imprisonment for three years. This appeal followed.


                                      MOTION TO SUPPRESS
       In his sole issue, Appellant argues that the trial court erred in overruling his motion to
suppress in light of the Supreme Court’s decision in McNeely.
Standard of Review and Governing Law
       We review a trial court’s ruling on a motion to suppress under a bifurcated standard.
Hubert v. State, 312 S.W.3d 554, 559 (Tex. Crim. App. 2010); Carmouche v. State, 10 S.W.3d
323, 327 (Tex. Crim. App. 2000). A trial court's decision to grant or deny a motion to suppress
is generally reviewed under an abuse of discretion standard. Shepherd v. State, 273 S.W.3d 681,
684 (Tex. Crim. App. 2008). We give almost total deference to a trial court’s determination of
historical facts, especially if those determinations turn on witness credibility or demeanor, and
review de novo the trial court's application of the law to facts not based on an evaluation of
credibility and demeanor. Neal v. State, 256 S.W.3d 264, 281 (Tex. Crim. App. 2008). At a
suppression hearing, a trial court is the exclusive trier of fact and judge of the witnesses’
credibility. Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002). Accordingly, a trial
court may choose to believe or to disbelieve all or any part of a witness’s testimony. State v.
Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). However, a trial court has no discretion in
determining what the law is or applying the law to the facts. State v. Kurtz, 152 S.W .3d 72, 81
(Tex. Crim. App. 2004). Thus, a failure by a trial court to analyze or apply the law correctly
constitutes an abuse of discretion. Id.
       When, as here, the trial court fails to file findings of fact in support of its ruling at a
suppression hearing, we view the evidence in the light most favorable to the trial court's ruling
and assume that the trial court made implicit findings of fact that support its ruling as long as
those findings are supported by the record. Ross, 32 S.W.3d at 855; see State v. Castleberry,
332 S.W.3d 460, 465 (Tex. Crim. App. 2011). Therefore, the prevailing party is entitled to “the



                                                2
strongest legitimate view of the evidence and all reasonable inferences that may be drawn from
that evidence.” Castleberry, 332 S.W.3d at 465. Since all evidence is viewed in the light most
favorable to the trial court’s ruling, we are obligated to uphold its ruling on a motion to suppress
if that ruling is supported by the record and is correct under any theory of law applicable to the
case. Ross, 32 S.W.3d at 856; Carmouche, 10 S.W.3d at 327; State v. Ballard, 987 S.W.2d 889,
891 (Tex. Crim. App. 1999); Maysonet v. State, 91 S.W.3d 365, 369 (Tex. App.–Texarkana
2002, pet. ref’d).
        The Fourth Amendment provides that “[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon probable cause.” U.S. CONST. amend. IV. The
Supreme Court has held that a warrantless search of the person is reasonable only if it falls
within a recognized exception. See, e.g., McNeely, 133 S. Ct. at 1558. Exigent circumstances is
one such well-recognized exception. See id.
        Texas Transportation Code, section 724, states, in pertinent part, as follows:

                 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 . . . while intoxicated, 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. . . .


TEX. TRANSP. CODE ANN. § 724.011(a) (West 2011). This implied consent provision applies to a
person, who at the time of his arrest, is believed by the arresting officer based on reliable
information from a credible source, to have been previously convicted of or placed on
community supervision for DWI on two or more occasions. See id. § 724.012(3) (West 2011).
Warrantless Blood Draw Pursuant to Texas Transportation Code, Section 724
        We recently addressed an issue similar to Appellant’s sole issue in Gentry v. State.2
There, we considered the analyses of several of our sister courts of appeals and likewise held that
(1) the implied consent and mandatory blood draw statutory schemes found in the transportation
code are not exceptions to the warrant requirement under the Fourth Amendment and (2) to be
authorized, the state’s warrantless blood draw must be based on a well-recognized exception to


        2
           See generally Gentry v. State, No. 12-13-00168-CR (Tex. App.–Tyler Aug. 27, 2014, no pet. h.) (mem.
op., not designated for publication), available at http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersion
ID=6ba12608-6bdc-4c61-98d7-85d3b967b4a2&coa=coa12&DT=Opinion&MediaID=1af76c06-9313-4c5f-ba4f-
4d55b75ad4b4.


                                                         3
the Fourth Amendment. See id., slip op. at 5–6 (citing Aviles v. State, No. 04-11-00877-CR,
2014 WL 3843756, at *2–3 (Tex. App.–San Antonio Aug. 6, 2014, pet. filed) (op., not
designated for publication); State v. Ballard, No. 11-13-00224-CR, 2014 WL 3865815, at *3
(Tex. App.–Eastland July 31, 2014, no pet. h.) (mem op., not designated for publication); Weems
v. State, No. 04-13-00366-CR, 2014 WL 2532299, at *8 (Tex. App.–San Antonio May 14, 2014,
pet. filed) (op., not designated for publication); Sutherland v. State, No. 07-12-00289-CR, 2014
WL 1370118, at *1–2 (Tex. App.–Amarillo Apr. 7, 2014, pet. filed) (op., not designated for
publication); State v. Villarreal, No. 13–13–00253–CR, 2014 WL 1257150, at *11 (Tex. App.–
Corpus Christi Jan. 23, 2014, pet. granted) (op., not designated for publication); see also Aviles
v. Texas, 134 S. Ct. 902, 187 L. Ed. 2d 767 (2014).
       We note that Appellant’s testimony and the later introduced officer’s report indicate that
Appellant gave permission to have his blood drawn. The voluntariness of a person’s consent is a
question of fact that the state must prove by clear and convincing evidence. Valtierra v. State,
310 S.W.3d 442, 448 (Tex. Crim. App. 2010). A trial court's finding of voluntary consent is
reviewed for abuse of discretion, and a trial court's finding of voluntariness must be accepted on
appeal unless it is clearly erroneous. Meekins v. State, 340 S.W.3d 454, 460 (Tex. Crim. App.
2011); Johnson v. State, 226 S.W.3d 439, 443 (Tex. Crim. App. 2007). Voluntariness is
determined by analyzing the totality of the circumstances of the situation from the view of an
objectively reasonable person. Tucker v. State, 369 S.W.3d 179, 185 (Tex. Crim. App. 2012).
       Here, the only evidence in the record concerning the specific circumstances surrounding
Appellant’s consenting to the blood draw is Appellant’s testimony that he was told that his blood
would be drawn “whether [he] like[d] it or not” and that he believed he had no choice but to
consent. See Carmouche v. State, 10 S.W.3d 323, 331 (Tex. Crim. App. 2000) (consent is not
established by “showing no more than acquiescence to a claim of lawful authority”) (citing
Bumper v. North Carolina, 391 U.S. 543, 548, 88 S. Ct. 1788, 1792, 20 L. Ed. 2d 797 (1968)).
The officer’s report merely states that he requested a blood specimen from Appellant and
Appellant agreed to provide one. While this statement is evidence that Appellant agreed to
provide a blood specimen, it does not speak to the surrounding circumstances concerning
whether this consent was voluntarily given. Based on our review of the record, we conclude that
the State failed to meet its burden of proving by clear and convincing evidence that Appellant’s




                                                4
consent was voluntarily given. We further hold that, based on the totality of the circumstances,
the trial court’s implied finding of voluntary consent is clearly erroneous.
         In sum, the State relied solely on Section 724 and offered no evidence or argument
pertaining to any other recognized exception to the Fourth Amendment that would have
permitted it to have Appellant’s blood drawn without a warrant.3 Therefore, we hold that the trial
court abused its discretion in denying Appellant’s motion to suppress. See Gentry, slip op. at
5--6.
Harm Analysis
         Having concluded that the trial court abused its discretion, we must now consider
whether Appellant was harmed as the result of this error. The admission of evidence obtained in
violation of the Fourth Amendment is subject to constitutional harm analysis pursuant to Texas
Rule of Appellate Procedure 44.2(a). See Hernandez v. State, 60 S.W.3d 106, 106 (Tex. Crim.
App. 2001). If the appellate record in a criminal case reveals constitutional error that is subject
to harmless error review, we must reverse the judgment of conviction or punishment unless we
determine beyond a reasonable doubt that the error did not contribute to the conviction or
punishment. See TEX. R. APP. P. 44.2(a). The harmless error inquiry under Rule 44.2(a) should
adhere strictly to the question of whether the error committed in a particular case contributed to
the verdict obtained in that case. Snowden v. State, 353 S.W.3d 817, 821 (Tex. Crim. App.
2011).
         We first consider whether the trial court’s admission of the blood test evidence
contributed to Appellant’s decision to plead “guilty.” See, e.g., Holmes v. State, 323 S.W.3d
163, 173–74 (Tex. Crim. App. 2010). Based on our review of the reporter’s record of the plea
hearing, we note that Appellant pleaded “guilty” based upon a plea agreement with the State, but
expressed his desire to preserve his right to appeal the trial court’s ruling on his motion to
suppress. Based on our review of the record, we cannot conclude beyond a reasonable doubt that
the trial court’s failure to suppress the blood test evidence did not influence Appellant’s decision
to plead “guilty.” Therefore, we hold that Appellant was harmed by the trial court’s erroneous
ruling on his motion to suppress.


         3
            On appeal, the State argues that certain exigent circumstances supported the warrantless blood draw.
However, the State declined to cite to the record where evidence could be found in support of the examples listed in
its brief. And, during our review of the record, we were unable to locate evidence supporting the existence of these
exigent circumstances.


                                                         5
         Appellant’s sole issue is sustained.


                                                    DISPOSITION
         Having sustained Appellant’s sole issue, we reverse the trial court’s judgment and
remand the cause for further proceedings consistent with this opinion.

                                                                  SAM GRIFFITH
                                                                     Justice

Opinion delivered August 29, 2014.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                              (DO NOT PUBLISH)



                                                           6
                                  COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                          AUGUST 29, 2014


                                         NO. 12-14-00086-CR


                                    RICKY ARNOLD WELCH,
                                           Appellant
                                              V.
                                     THE STATE OF TEXAS,
                                           Appellee


                                 Appeal from the 4th District Court
                          of Rusk County, Texas (Tr.Ct.No. CR13-319)

                      THIS CAUSE came to be heard on the appellate record and the briefs filed
herein, and the same being considered, because it is the opinion of this court that there was error
in the judgment of the court below, it is ORDERED, ADJUDGED and DECREED by this court
that the judgment be reversed and the cause remanded to the trial court for further
proceedings in accordance with the opinion of this court; and that this decision be certified to
the court below for observance.
                   Sam Griffith, Justice.
                   Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
