                         NUMBER 13-11-00694-CR

                            COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


WILLIAM SMITH A/K/A
BILL SMITH,                                                            Appellant,

                                          v.

THE STATE OF TEXAS,                                                    Appellee.


                    On appeal from the 94th District Court
                         of Nueces County, Texas.


                                     OPINION
               Before Justices Garza, Benavides, and Perkes
                 Memorandum Opinion by Justice Perkes
      After re-consideration of Missouri v. McNeely, 133 S. Ct. 1552 (2013) and the

parties’ supplemental briefing, we withdrew our memorandum opinion and judgment,

dated October 31, 2013. See Smith v. State, No. 13-11-694-CR, 2013 WL 5970400

(Tex. App.—Corpus Christi Oct. 13, 2013, no pet.) (mem. op., not designated for

publication). We replace it with the following opinion and judgment.
        Appellant William Smith a/k/a Bill Smith appeals his conviction for driving while

intoxicated—third offense,1 a third-degree felony enhanced to a habitual felony offender.

See TEX. PENAL CODE ANN. §§ 49.04, 49.09(b)(2) (West, Westlaw through 2013 3d C.S.).

The trial court found appellant guilty, and after finding two prior felony conviction

enhancements to be true, 2 assessed punishment at twenty-five years imprisonment.

See id. § 12.42(d). In his original brief, appellant complains the trial court erred by:              (1)

refusing to appoint a new attorney on the day of trial; (2) admitting blood sample evidence;

(3) allowing fingerprint expert testimony and admitting prior judgments authenticated

thereby; and (4) finding the evidence was sufficient to show two prior felony convictions.

In his supplemental briefs, he asserts two additional issues, which we construe together:

(1) the trial court erred by allowing the State to introduce blood sample evidence at trial

that was collected without a warrant and in violation of his Fourth Amendment rights; and

(2) Section 724.012(b)(3)(B) of the Texas Transportation Code, which the State relied on

to justify the search, is unconstitutional as applied. We reverse and remand.

                                            I. BACKGROUND

        State trooper David Anguiano stopped appellant for driving without wearing a seat

belt. Upon approaching appellant’s car, Anguiano “smelled the strong odor of some sort

of alcoholic beverage coming from him” and saw numerous open alcoholic beverages



        1  Appellant was previously convicted of two offenses relating to the operation of a motor vehicle
while intoxicated: (1) on March 10, 2006, in Cause No. 63519, in the County Court at Law of San Patricio
County, Texas; and (2) on March 28, 2008 in Cause No. 2007-9764-3 in the County Court at Law No. 3 of
Nueces County, Texas.

       2 Appellant was also previously convicted of two felony offenses for burglary of a habitation: (1)
on June 7, 1989, in Cause No. 88-CR-1586-A, in the 28th District Court of Nueces County, Texas; and (2)
on February 19, 1992, in Cause No. 2870-1, in the 156th District Court of Live Oak County, Texas.

                                                    2
spread throughout the vehicle. Anguiano observed that appellant’s movements were

slow and that he had glassy, blood-shot eyes.                   After further investigation, including

administering the standardized field sobriety tests, Anguiano arrested appellant for driving

while intoxicated.3

        Anguiano testified that appellant made “a statement to the fact that it was a felony

D.W.I. for him.” Anguiano then “ran [appellant’s] information” with his in-car computer

and verified appellant’s criminal history with the communications operator who informed

Anguiano that appellant had two prior DWI convictions. Due to appellant’s allegedly

belligerent behavior, a different officer transported appellant to the hospital while

Anguiano followed.4 At the hospital, Anguiano tried to obtain appellant’s consent to take

a blood specimen. When consent was not forthcoming, Anguiano informed appellant the

blood draw was mandatory.               Approximately one hour after the initial traffic stop, a

certified medical technologist took a sample of appellant’s blood.

        Anguiano did not obtain a search warrant to collect appellant’s blood sample.

Instead, Anguiano relied solely on Texas Transportation Code section 724.012(b)(3)(B),

which he interpreted to mean “you’re authorized to conduct a mandatory blood draw on—

if we have probable cause to believe that the person has two previous convictions . . . for

D.W.I. . . .” After the blood was drawn and delivered to the Texas Department of Public

Safety lab, Emily Bonvino, a forensic scientist, performed a chemical analysis of


        3    Anguiano indicated that additional police officers were involved in the arrest and transport of
appellant.

          4 Anguiano testified that his police cruiser did not have a “cage” and that suspects would ordinarily

ride in the front seat. Appellant was uncooperative and was transported to the hospital in the backseat of
another officer’s vehicle.

                                                      3
appellant’s blood. During trial, she testified that appellant’s blood sample contained .21

grams of alcohol per 100 milliliters of blood. Over appellant’s objection on constitutional

grounds, the trial court admitted the blood evidence.5

                                             II. BLOOD DRAW

        Appellant complains that the results of the blood test should have been excluded

because his blood sample was taken in violation of the Fourth Amendment’s prohibition

against unreasonable searches and seizures. See U.S. CONST. amend. IV. The State

argues that appellant’s blood was seized pursuant to the Fourth Amendment exception

of consent because section 724.012(b) of the Texas Transportation Code implies a

person’s consent to a blood draw. See TEX. TRANSP. CODE ANN. § 724.012(b) (West,

Westlaw through 2013 3d C.S.). The State also defends the blood draw under the

automobile, search-incident-to-arrest, and special needs exceptions. We disagree with

the State.

A.      Standard of Review

        We review a trial court’s ruling on whether to admit or exclude evidence for abuse

of discretion. State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006); Martinez v.

State, 867 S.W.2d 30, 39 (Tex. Crim. App. 1993) (en banc). We view the facts in the

light most favorable to the trial court's decision and 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 to those facts. Dixon, 206 S.W.3d at 590 (citing State v.

Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000)).


        5   Appellant did not file a motion to suppress the blood evidence, but rather objected on the basis
of a violation of the Fourth Amendment prior to the admission of the results of the blood analysis.
                                                     4
B.     Applicable Law

       1.      Fourth Amendment

       The Fourth Amendment to the United States Constitution provides that:

       The 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. A warrantless search is presumed unreasonable. See United

States v. Robinson, 414 U.S. 218, 224 (1973). The taking of a blood sample is a search

that triggers the protections of the Fourth Amendment. See Schmerber v. California, 384

U.S. 757, 770 (1966). However, there are several exceptions to the Fourth Amendment

warrant requirement.          Law enforcement may face a situation where exigent

circumstances justify a warrantless search, such as a “hot pursuit” or the need to provide

emergency assistance to a homeowner. See Michigan v. Fisher, 558 U.S. 45, 47–48

(2009); United States v. Santana, 427 U.S. 38, 42–43 (1976). Exigent circumstances

may justify a warrantless search in drunk driving investigations if police officers

reasonably believe they face an emergency situation in which the delay necessary to

obtain a warrant threatens the destruction of evidence. Schmerber, 384 U.S. at 770.6

       The United States Supreme Court discussed exigency in the context of

unconsented, warrantless blood draws in Missouri v. McNeely, holding that “in those

drunk driving investigations where police officers can reasonably obtain a warrant before

a blood sample can be drawn without significantly undermining the efficacy of the search,


         6 According to the State, the Supreme Court has mislabeled a blood draw as a search and urges

us to re-label a blood draw as a “seizure” instead of a “search.” We recognize that the Supreme Court’s
holdings in Schmerber and McNeely are mandatory precedent and conclude that a blood draw in a DWI
investigation constitutes a “search” under the Fourth Amendment. See Missouri v. McNeely, 133 S.Ct.
1552, 1561 (2013); Schmerber v. California, 384 U.S. 757, 770 (1966).
                                                  5
the Fourth Amendment mandates that they do so.” Missouri v. McNeely, 133 S.Ct. at

1567–68. The McNeely Court held that the determination of whether a law enforcement

officer is justified in acting without a warrant turns on the totality of circumstances on a

case-by-case basis. Id. at 1559.

       2.     Implied Consent

       Warrantless searches may also be premised on consent. See Schneckloth v.

Bustamante, 412 U.S. 218, 219 (1973). After the McNeely decision, appellate courts

distinguished McNeely by applying the implied consent principle found in sections

724.012(b)(3)(B) and 724.011. See TEX. TRANSP. CODE ANN. §§ 724.011, 724.012(b)

(West, Westlaw through 2013 3d C.S.); Aviles v. State 385 S.W.3d 110, 115 (Tex. App.—

San Antonio 2012, pet. ref’d), vacated, 132 S.Ct. 902 (2014). Those statutes provide a

statutory scheme whereby the taking of blood and breath samples is premised on “implied

consent.” Texas law provides that in some situations, the taking of blood or breath

evidence in a DWI investigation is required. See TEX. TRANSP. CODE ANN. §§ 724.011,

724.012(b). Section 724.012(b) of the Texas Transportation Code states:

       (b) A peace office shall require the taking of a specimen of the person’s
           breath or blood under any of the following circumstances if the officer
           arrests the person for an offense under Chapter 49, Penal Code,
           involving the operation of a motor vehicle or a watercraft and the person
           refuses the officer’s request to submit to the taking of a specimen
           voluntarily:

              ....

              (3) at the time of the arrest, the officer possesses or receives reliable
                  information from a credible source that the person:

              ....


                                              6
                     (B) on two or more occasions, has been previously convicted
                         of or placed on community supervision for an offense
                         under Section 49.04, 49.05, 49.06, or 49.065, Penal
                         Code. . . .

Id. § 724.012(b)(3)(B).

       The implied consent law does just that—it implies a suspect's consent to a search

in certain limited instances. Beeman v. State, 86 S.W.3d 613, 616 (Tex. Crim. App.

2002). While McNeely positively references the implied consent laws of various States,

it also points out that the consequences associated with implied consent laws—typically

loss of driving privileges and use of refusal as evidence—are triggered when the driver

withdraws consent. McNeely, 133 S.Ct. at 1566 (emphasis added).

       In Aviles v. State, our sister court in San Antonio held that the Texas Transportation

Code expands the State's ability to search and seize without a warrant, providing implied

consent to obtain blood samples from persons suspected of driving while intoxicated, in

certain circumstances, even without a search warrant. See Aviles, 385 S.W.3d at 115.

As recognized by both parties, the facts in Aviles are similar to the instant case: no

accident, no injuries, no consent, no warrant, and a blood draw based solely on section

724.012(b)(3)(B). See TEX. TRANSP. CODE ANN. § 724.012(b)(3)(B); Aviles, 385 S.W.3d

at 112.

       The United States Supreme Court, however, subsequently vacated and remanded

Aviles v. State for consideration in light of McNeely. See Aviles, 132 S.Ct. at 902.   After

reviewing the denial of the motion to suppress in light of McNeely, the San Antonio Court

of Appeals reversed the trial court’s judgment and remanded the matter to the trial court

for a new trial. See Aviles v. State, No. 04-11-00877-CR, 2014 WL 3843756, at *3 (Tex.

                                             7
App.—San Antonio Aug. 6, 2014, pet. filed) (holding that the mandatory blood draw

statute is not a permissible exception to the warrant requirement; and concluding that the

blood draw was an unconstitutional search and seizure and violated Aviles’s rights under

the Fourth Amendment).

C.     Analysis

       1.     Implied Consent & Exigency

       A warrantless blood draw is constitutional if it is conducted pursuant to a

recognized Fourth Amendment exception.           McNeely, 133 S.Ct. at 1568.     The State

argues that the Texas implied consent statutory framework, which includes the mandatory

blood draw statute, is an exception to the Fourth Amendment warrant requirement and

supports this claim by pointing out the narrow legal issue addressed by the McNeely

Court. The State asserts that because McNeely did not address the constitutionality of

implied consent laws, a defendant’s implied consent is an exception to the Fourth

Amendment warrant requirement.         By this reasoning, whether a person withdraws

consent is irrelevant when they are suspected of DWI under circumstances defined by

section 724.012(b)(3). This reasoning is unsound and the conclusion is incorrect.

       As the Texas Court of Criminal Appeals noted in Beeman, “the implied consent

statute requires the State to take an arrested suspect’s blood, over his refusal, when there

is an accident and someone is injured.” Beeman, 86 S.W.3d at 615. In concluding that

the implied consent law gives a suspect’s consent in certain circumstances, Beeman

recognized that section 724.011 is a statutory version of the exigency exception

discussed in Schmerber. See Schmerber, 384 U.S. at 758. Beeman, however, did not

find that a driver stopped only on suspicion of DWI with two prior DWI convictions presents
                                             8
an exigent circumstance. In such an instance, the only arguable exigency would be the

dissipation of alcohol in the blood over time, which McNeely expressly disqualifies as a

per se exigent circumstance. See McNeely, 133 S.Ct. at 1559.

       The record in this case does not support a finding of exigent circumstances.

Anguiano did not respond to an accident or a medical emergency. Cf. Schmerber, 384

U.S. at 758. His sole reason for transporting appellant to the hospital was to obtain a

blood sample for the DWI investigation. Additionally, there was no testimony to show

that Anguiano would have been delayed had he attempted to obtain a search warrant or

that he faced any exigent circumstances beyond those found in a normal DWI

investigation. The facts in this case are similar to the hypothetical scenario contemplated

in McNeely. See McNeely, 133 S.Ct. at 1561 (discussing that when another officer

transports a suspect to the hospital and there is no significant delay in obtaining a warrant,

there would be no plausible justification for an exception to the warrant requirement).

Anguiano could have taken steps to secure a search warrant while appellant was

transported to the hospital by a different officer.           Anguiano’s warrantless and

nonconsensual blood draw is not justified by exigent circumstances. See McNeely, 133

S.Ct. at 1567–68; Reeder, 428 S.W.3d at 930; Sutherland, 436 S.W.3d at 40.

       2.     Automobile Exception

       The State argues that the warrantless blood draw is justified by the automobile

exception. See California v. Carney, 471 U.S. 386 (1985); Carroll v. United States, 267

U.S. 132 (1925). The automobile exception turns on a reduced expectation of privacy in

a vehicle. See South Dakota v. Opperman, 428 U.S. 364, 367 (1976) (holding that

“[b]esides the element of mobility, less rigorous warrant requirements govern because
                                              9
the expectation of privacy with respect to one's automobile is significantly less than that

relating to one's home or office”). These reduced expectations of privacy derive from the

pervasive regulation of vehicles capable of traveling on the public highways. Cady v.

Dombrowski, 413 U.S. 433, 440–41 (1973).

       The State has provided no authority that applies the automobile exception to DWI

blood draws.     Instead, we find contrary authority.       A compelled physical intrusion

beneath a defendant’s skin and into his veins to obtain a sample of his blood for use as

evidence in a criminal investigation is such an invasion of bodily integrity that it implicates

an individual's “most personal and deep-rooted expectations of privacy.” Winston v. Lee,

470 U.S. 753, 760 (1985); see also Skinner v. Ry. Labor Executives' Ass’n., 489 U.S.

602, 616 (1989). While we agree with the State that a driver has a reduced expectation

of privacy, this reduced expectation extends to items within the car that person is driving,

not inside the person’s body. See Carney, 471 U.S. at 392. A warrantless blood draw

is not justified by the automobile exception.

       3.      Search-Incident-to-Arrest

       Next, the State argues that the blood draw is valid because it was conducted

pursuant to the search-incident-to-arrest exception to the Fourth Amendment. The basis

for the search-incident-to-arrest exception is that when an arrest is made, it is reasonable

for a police officer to expect the arrestee to use any weapons he may have and to attempt

to destroy any incriminating evidence then in his possession. Cupp v. Murphey, 412

U.S. 291, 295 (1973).       The court in Cupp, deciding on the constitutionality of a

warrantless search of defendant’s fingernails, held that “considering the existence of

probable cause, the very limited intrusion undertaken incident to the station house
                                              10
detention, and the ready destructibility of the evidence, we cannot say that this search

violated the Fourth and Fourteenth Amendments.” Id. at 296.

      A search of a person’s fingernail scrapings is different than a search of a person’s

blood. Blood testing differs in critical respects from other destruction-of-evidence cases

in which the police are truly confronted with a now or never situation.        Roaden v.

Kentucky, 413 U.S. 496, 505 (1973). For example, unlike circumstances in which the

suspect has control over easily disposable evidence, see Cupp, 412 U.S. at 296, blood

alcohol content evidence from a drunk-driving suspect naturally dissipates over time in a

gradual and relatively predictable manner. McNeely, 133 S.Ct. at 1561. Because a

police officer must typically transport a drunk-driving suspect to a medical facility and

obtain the assistance of someone with appropriate medical training before conducting a

blood draw, some delay between the time of the arrest or accident and the time of the

draw is inevitable, regardless of whether police officers are required to obtain a warrant.

Id.

      While we agree with the State that blood testing is relatively common, routine, and

safe, we find that the important consideration in justifying a search-incident-to-arrest is

the destructibility of the evidence. See id. A warrantless blood draw is not necessarily

supported by the natural dissipation of blood in the body, and we are unpersuaded that

the search-incident-to-arrest exception applies in such cases. See id.




      4.     Special Needs Exception


                                            11
       Finally, the State argues that the special needs exception justifies a warrantless

blood draw.     The special needs exception applies where a State's operation of a

probation system, like its operation of a school, government office, or prison, or its

supervision of a regulated industry, presents “special needs” beyond normal law

enforcement that may justify departures from the usual warrant and probable-cause

requirements.    Griffin v. Wisconsin, 483 U.S. 868, 873–74 (1987).        The State cites

Skinner v. Railway Labor Executives’ Association, 489 U.S. 602 (1989). Despite the

State’s claims that Skinner authorized warrantless, suspicion-less blood draws, the

testing scheme in Skinner mandates testing railroad workers following railway accidents

or incidents of rule violations, and it authorizes testing upon reasonable suspicion that an

employee is under the influence of alcohol. Skinner, 489 U.S. at 609–11. The Skinner

Court held that the agency prescribed toxicological tests not to assist in the prosecution

of employees, but rather “to prevent accidents and casualties in railroad operations that

result from impairment of employees by alcohol or drugs.”      Id. at 620; see Bd. of Educ.

of Indep. Sch. Dist. No. 92 of Pottawatomie County v. Earl, 536 U.S. 822, 828 (2002)

(holding that in the context of safety and administrative regulations, a search unsupported

by probable cause may be reasonable when special needs . . . make the warrant and

probable-cause requirement impracticable.). Skinner further held that the government's

interest in dispensing with the warrant requirement is at its strongest when “the burden of

obtaining a warrant is likely to frustrate the governmental purpose behind the search.”

Id. at 623.

       The facts in the present case are different than those in Skinner. While the

government has a significant interest in protecting the public from drunk drivers, the
                                            12
purpose of blood and breath testing in DWI investigations is to collect evidence for

criminal prosecution. The State does not argue that applying for and obtaining a search

warrant would have frustrated Anguiano’s search of appellant’s blood. Inasmuch as the

State did not perform the blood draw in the context of safety and administrative

regulations, the special needs exception does not apply.

       5.        Summary

       In this case, appellant’s blood draw was not supported by exigent circumstances,

and we find the other exceptions argued by the State do not apply. Therefore, the

warrantless search of appellant’s blood was conducted in violation of his Fourth

Amendment rights.

                        III.    TRANSPORTATION CODE SECTION 724.012(B)

       Appellant further argues that the warrantless blood draw conducted pursuant to

section 724.012(b) is unconstitutional as applied to him. We agree.7

A.     Applicable Law

       A litigant raising an “as applied” challenge concedes the general constitutionality

of the statute, but asserts that the statute is unconstitutional as applied to his particular

facts and circumstances. State v. Fine, 330 S.W.3d 904, 910 (Tex. Crim. App. 2011).

Because a statute may be valid as applied to one set of facts and invalid as applied to a

different set of facts, a litigant must show that, in its operation, the challenged statute was

unconstitutionally applied to him; the fact that it may be unconstitutional as to others is

not sufficient or even relevant. Id.          “In enacting a statute, it is presumed . . . compliance



       7   Appellant does not raise a facial constitutional challenge to section 724.012.
                                                     13
with the constitutions of this state and the United States is intended . . . .”). Id.; see Bays

v. State, 396 S.W.3d 580, 584–85 (Tex. Crim. App. 2013) (“[W]e necessarily focus our

attention on the literal text of the statute . . . [I]t is not for the courts to add to or subtract

from such a statute.”); Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991).

B.     Analysis

       The State argues that language of section 724.012(b) stating “[a] peace officer

shall require the taking of a specimen of the person's breath or blood” means that a

specimen may be taken purely under the authority of the statute. The State asserts that

section 724.012(b) and a search warrant signed by a magistrate are collateral sources of

authority.   This interpretation is incorrect.       While we agree with the State that the

language of section 724.012(b) requires an officer to obtain a blood sample if the officer

learns that a DWI suspect has two previous DWI convictions, there is no language in the

statute giving the officer authority to effect a search without a warrant. See TEX. TRANSP.

CODE ANN. § 724.012(b); TEX. GOV'T CODE ANN. § 311.021(1) (West, Westlaw through

2013 3d C.S.). An officer can comply with the statute by obtaining a sample pursuant to

a search warrant. See TEX. TRANSP. CODE ANN. § 724.012(b).

       Our Court has previously recognized that section 724.012(b)(3)(B) does not create

a new and distinct exception to the Fourth Amendment warrant requirement. See State

v. Villarreal, No. 13-13-00253-CR, 2014 WL 1257150, at *11 (Tex. App.—Corpus Christi

Jan. 23, 2014, pet. granted).       As we stated in Villarreal, absent a warrant, exigent

circumstances, or consent, a blood draw is unreasonable under the Fourth Amendment.

Id. at *41. We emphasized that “the constitutionality of the repeat offender provision of



                                                14
the mandatory blood draw statute must be based on the previously recognized exceptions

to the Fourth Amendment requirement.” Id.

      Many of our sister courts have held that warrantless blood draws conducted

pursuant to section 724.012(b) must fall under a recognized exception to the Fourth

Amendment warrant requirement. See State v. Anderson, No. 09-13-00400-CR, 2014

WL 5033262 (Tex. App.—Beaumont Oct. 8, 2014, no pet. h.); McNeil v. State, No. 04-13-

00415-CR, 2014 WL 3843757 (Tex. App.—San Antonio Sept. 2, 2014, pet. filed);

McGruder v. State, No. 10-13-00109, 2014 WL 3973089 (Tex. App.—Waco Aug. 14,

2014, pet. filed); Aviles, 2014 WL 3843756; Forsyth v. State, 438 S.W.3d 216 (Tex.

App.—Eastland 2014, pet. ref.d); Douds v. State, 434 S.W.3d 842 (Tex. App.—Houston

[14th Dist.] 2014, pet. granted); Weems v. State, 434 S.W.3d 655 (Tex. App.—San

Antonio 2014, pet. granted); Reeder v. State, 428 S.W.3d 924, 930 (Tex. App.—

Texarkana 2014, pet. granted.); Sutherland v. State, 436 S.W.3d 28, 34–35 (Tex. App.—

Amarillo 2014, pet. filed); see also Gentry v. State, No. 12-13-00168-CR, 2014 WL

4215544 (Tex. App.—Tyler Aug. 27, 2014, pet. filed) (mem. op., not designated for

publication); State v. Ballard, No. 11-13-00224-CR, 2014 WL 3865815 (Tex. App.—

Eastland July 31, 2014, pet. filed) (mem. op., not designated for publication); Fitzgerald

v. State, No. 04-13-00662-CR, 2014 WL 3747270 (Tex. App.—San Antonio July 30, 2014,

pet. filed) (mem. op., not designated for publication); Reeves v. State, No. 07-13-00324-

CR, 2014 WL 3360306 (Tex. App.—Amarillo July 8, 2014, pet. filed) (mem. op., not

designated for publication); Sharma v. State, No. 05-13-003390-CR, 2014 WL 2538882

(Tex. App.—Dallas June 5, 2014, no pet.) (mem. op., not designated for publication);

Holidy v. State, No. 06-13-00261-CR, 2014 WL 1722171 (Tex. App.—Texarkana Apr. 30,
                                           15
2014, pet. granted) (mem. op., not designated for publication); State v. Baker, No. 12-12-

00092-CR, 2013 WL 5657649 (Tex. App.—Tyler Oct. 16, 2013, pet. dism’d) (mem. op.,

not designated for publication); but see Perez v. State, No. 01-12-01001-CR, 2014 WL

943126 (Tex. App.—Houston [1st Dist.] Mar. 11, 2014, no pet.) (holding that a warrantless

taking of defendant's blood sample following his DWI arrest did not violate defendant's

Fourth Amendment rights, as defendant's consent to taking of blood sample was implied

pursuant to applicable provision of implied consent law); Polito v. State, No. 05-12-1720-

CR, 2014 WL 348533 (Tex. App.—Dallas Jan. 30, 2014, no pet.) (mem. op., not

designated for publication) (holding that even if suspect refused, the [blood] specimen

would still have been taken, because the officer had reliable information from a credible

source that [suspect] had two or more prior convictions for DWI).8

        Officer Anguiano, by obtaining a search warrant, could have complied with both

the statutory requirement that he obtain a blood sample and the constitutional protections

of the Fourth Amendment. Interpreting section 724.012(b) in such a way as to ignore

the safeguards of the Fourth Amendment is an unconstitutional application of Texas law,

which we avoid. See TEX. GOV’T CODE ANN. § 311.021(1). Without a showing of exigent

circumstances or express consent, Anguiano was obligated to obtain a blood sample

consistent with the requirements of the Fourth Amendment. See McNeely, 133 S.Ct. at

1559; Beeman, 86 S.W.3d at 616. Since the blood evidence was obtained in violation

of appellant’s Fourth Amendment rights, the evidence was inadmissible. See Mapp v.



         8 In other cases, the First Court of Appeals held that appellants failed to preserve any constitutional

challenge to section 724.012(b). See Lyssy v. State, 429 S.W.3d 37 (Tex. App.—Houston [1st Dist.] 2014,
no pet.); Kay v. State, No. 01-13-00595-CR, 2014 WL 3697917 (Tex. App.—Houston [1st Dist.] July 24,
2014, no pet.) (mem. op., not designated for publication).
                                                      16
Ohio, 367 U.S. 643, 655 (1961) (Fourth Amendment requires exclusion of evidence

obtained in violation thereof; Fourteenth Amendment makes requirement applicable to

States).

                                    IV. HARM ANALYSIS

       Having concluded that the admission of the blood evidence was a constitutional

error, we conduct a harm analysis pursuant to Rule 44.2(a). See TEX. R. APP. P. 44.2(a);

Hernandez v. State, 60 S.W.3d 106, 106 (Tex. Crim. App. 2001). We must reverse a

judgment of conviction or punishment unless we determine beyond a reasonable doubt

that the error did not contribute to the conviction or punishment. TEX. R. APP. P. 44.2(a).

       After the presentation of evidence in the guilt/innocence phase, the trial court

stated:

       Well, as I watched the video I think there were some signs of intoxication,
       but quite frankly, I was surprised when I heard the results of the blood
       alcohol that Mr. Smith did anywhere near as well as he did on the video. I
       mean, good, I mean, because it was—I mean, signs of intoxication, but I
       don't know, was he intoxicated where he lost the normal use of his mental
       or physical faculties? It was a kind of a close call, quite frankly, at a beyond
       a reasonable doubt standard; but I mean, the fact of the matter is a .21 is
       far in excess of .08, so—I mean, the legislature has drawn that as a bright
       line rule, so based upon that I find you guilty of this offense beyond a
       reasonable doubt . . . .

Based on the trial court’s analysis, it is apparent that the blood evidence had a significant

impact on appellant’s conviction. As the trial court indicated, without the introduction of

the blood evidence, the case was a “close call.”          We cannot conclude beyond a

reasonable doubt that the admission of the blood evidence did not contribute to

appellant’s conviction.   Consequently, we must reverse appellant’s conviction.           See

TEX. R. APP. P. 44.2(a); Hernandez, 60 S.W.3d at 108.

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       Appellant’s first and second issues, as set forth in his supplemental briefs, are

sustained. As such, we need not address appellant’s other points of error. See TEX. R.

APP. P. 47.1.

                                   IV.    CONCLUSION

       We reverse appellant’s conviction and remand the cause to the trial court for

further proceedings consistent with this opinion.



                                                    GREGORY T. PERKES
                                                    Justice
Publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
13th day of November, 2014.




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