                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-13-00416-CR


ROBERT OTHELLA JAMES LEWIS                                         APPELLANT
A/K/A ROBERT LEWIS

                                         V.

THE STATE OF TEXAS                                                      STATE


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   FROM THE CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY
                   TRIAL COURT NO. 1299359D

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                                    OPINION

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      Appellant Robert Othella James Lewis appeals from his conviction for

driving while intoxicated (DWI) and from his five-year sentence. We reverse the

trial court’s order denying Lewis’s pretrial motion to suppress and judgment and

remand the case to the trial court for further proceedings.
                                I. BACKGROUND

      Late at night on July 17, 2012, Officer Jose Lopez saw a car speeding, and

then it failed to stop at a stop sign. Lopez began following the car and saw the

car “fail to maintain a single lane of travel . . . straddl[ing] some of the lines.”

Lopez pulled over the car. Lewis was the driver and sole occupant of the car and

informed Lopez that he did not have any identification. Lewis was uncooperative

and exhibited slurred speech and “watery, red eyes.” Lopez smelled a “strong

smell of an alcoholic beverage” on Lewis’s breath. After initially refusing to get

out of his car, Lewis eventually got out after Lopez pointed his Taser at him.

Lewis also refused to perform any field-sobriety tests.

      Lopez then arrested Lewis, but Lewis would not put his hands behind his

back as requested. Lewis refused five times to put his hands behind his back,

and Lopez eventually fired his Taser at Lewis after warning him that he would do

so if Lewis would not comply. After being hit by the Taser, Lewis fell and hit his

head on the ground. Lopez called for an ambulance, but Lewis refused medical

attention at the scene. Lopez handcuffed Lewis. At this point, Lopez found

Lewis’s identification in his wallet and subsequently discovered that Lewis had

two prior DWI convictions. As statutorily authorized, Lopez then took Lewis to

the hospital for a mandatory blood draw without first obtaining a warrant. See

Tex. Transp. Code Ann. § 724.012(b)(3) (West 2011). At the hospital, Lewis

began cursing very loudly, threatened to kick hospital staff members in the face if

they drew his blood, and had to be held down by two officers and several hospital


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staff members. The blood test revealed that Lewis had a blood-alcohol content

of .27, which is more than three times above the legal limit. See Tex. Penal

Code Ann. § 49.01(2)(B) (West 2011).

      A grand jury indicted Lewis for DWI and included a felony-repetition

paragraph alleging that Lewis had twice previously been convicted of DWI. See

id. §§ 49.04(a), 49.09(b) (West Supp. 2014). Before trial, Lewis filed a motion to

suppress the blood-alcohol results because there were no exigent circumstances

or any other exception to the constitutional warrant requirement; thus, Lewis

argued that the blood-alcohol results, which were obtained without a warrant,

were inadmissible. See generally McGee v. State, 105 S.W.3d 609, 615 (Tex.

Crim. App.) (delineating three exceptions to search-warrant requirement), cert.

denied, 540 U.S. 1004 (2003).

      The trial court held an evidentiary hearing on the motion at which Lopez

testified that he did not consider obtaining a warrant to draw Lewis’s blood,

although he knew how to do so, and that he had Lewis’s blood drawn under the

authority of section 724.012.      The trial court concluded that no exigent

circumstances justified the warrantless blood draw but that the blood draw

nevertheless was authorized by section 724.012; thus, the trial court held the

blood-alcohol results admissible even in the absence of a warrant and denied the

motion. 1 The blood-alcohol results were admitted at trial, and a jury found Lewis


      1
       Although the trial court stated at the hearing that it would be entering
findings of fact and conclusions of law, the clerk’s record does not include

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guilty of DWI. After a punishment hearing, the jury assessed his punishment at

five years’ confinement.

                                 II. DISCUSSION

                             A. ABUSE OF DISCRETION

      We review the denial of a motion to suppress evidence for an abuse of

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

Therefore, we view the facts in the light most favorable to the trial court’s

decision, giving almost total deference to the 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.

      Lopez did nothing wrong at the time he had Lewis’s blood drawn without a

warrant based on the authority of section 724.012. Similarly, the trial court

understandably held that the statute specifically authorized the blood draw and

was, in effect, an exception to the warrant requirement. However, the court of

criminal appeals recently held that the provisions in the transportation code

allowing warrantless blood or breath samples to be taken without consent,

including section 724.012, are alone not “a constitutionally valid alternative to the

Fourth Amendment warrant requirement.” State v. Villarreal, No PD-0306-14,

2014 WL 6734178, at *20 (Tex. Crim. App. Nov. 26, 2014) (5–4 opinion), reh’g


findings or conclusions. In recounting the trial court’s rulings, we are relying on
the trial court’s statements in the reporter’s record from the motion-to-suppress
hearing.


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granted, No. PD-0306-14 (Feb. 25, 2015). Here, the State did not argue any

exception to the warrant requirement justified the warrantless search and relied

solely on section 724.012.     Indeed, the trial court recognized there were no

exigent circumstances dispensing with the warrant requirement. See Missouri v.

McNeely, 133 S. Ct. 1552, 1563, 1568 (2013) (holding natural metabolization of

alcohol in the bloodstream does not present a per se exigency justifying

exception to warrant requirement for nonconsensual blood testing in DWI cases).

Further, Lopez’s good-faith belief that the statute authorized the warrantless

search does not overcome the exclusionary rule. See Burks v. State, No. 02-13-

00560-CR, 2015 WL 115964, at *3 (Tex. App.—Fort Worth Jan. 8, 2015, no pet.).

Based on Villarreal, the trial court erred in its application of the law to the facts

and, thus, by denying Lewis’s motion to suppress.

                                B. HARM ANALYSIS

      We review the harm resulting from a trial court’s erroneous denial of a

motion to suppress and subsequent admission of evidence obtained in violation

of the Fourth Amendment under the constitutional harmless-error standard. Tex.

R. App. P. 44.2(a); see Hernandez v. State, 60 S.W.3d 106, 108 (Tex. Crim. App.

2001) (mandating application of rule 44.2(a) to harm analysis of trial court’s

erroneous denial of motion to suppress under the Fourth Amendment). This

standard requires us to reverse the trial court’s judgment of conviction 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). Our primary question is


                                         5
whether there is a reasonable possibility that the error might have contributed to

the conviction or punishment. Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim.

App. 1998), cert. denied, 526 U.S. 1070 (1999). In other words, we calculate the

probable impact the evidence had on the verdict in light of the other evidence.

McCarthy v. State, 65 S.W.3d 47, 55 (Tex. Crim. App. 2001, cert. denied, 536

U.S. 972 (2002).

      Here, the blood-alcohol results were introduced through the testimony of a

forensic toxicologist, Joyce Ho. 2 She testified that Lewis’s blood-alcohol content

was .27. The chief toxicologist, Robert Johnson, testified that .27 was over the

legal limit of .08 and that such a blood-alcohol level could result in

unconsciousness or abnormal “walking and talking.” Johnson also stated that it

was possible Lewis’s blood-alcohol content was higher than .27 at the time

Lopez stopped him based on retrograde extrapolation.           During closing jury

arguments, the State recognized that Lewis’s demeanor and odor of alcohol were

“signs that he was intoxicated.” But the State continued that the “clearest” sign of

intoxication was his blood-alcohol content:

      [Lewis’s impaired physical and mental condition is] not the clearest
      reason why we know [Lewis was legally intoxicated]. Because
      remember there’s three ways in which you can find that the
      defendant was intoxicated that night. . . . And the third way is that

      2
       The State does not argue that Lewis’s failure to object to the admission of
the blood-alcohol results on the basis of the Fourth Amendment at trial resulted
in a waiver of his motion-to-suppress arguments, and we do not construe it to be
so in the context of this case. See Thomas v. State, 408 S.W.3d 877, 885–86
(Tex. Crim. App. 2013).


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      he had . . . a blood alcohol content of over .08 percent. Well, in this
      case he had a blood-alcohol content of .27 percent . . . .

            ....

            That’s three times the legal limit. Three times. We know he
      was intoxicated.

Although there was other evidence of Lewis’s intoxication—bloodshot eyes, an

odor of alcohol, slurred speech, and his refusal to perform field-sobriety tests—

we cannot conclude beyond a reasonable doubt that the blood-alcohol evidence

did not contribute to the jury’s verdict. The evidence that Lewis’s blood-alcohol

content was three times the legal limit had a probable impact on the verdict even

in light of the other evidence indicating intoxication, and there is a reasonable

possibility that the error might have contributed to Lewis’s conviction or

punishment. See, e.g., Cole v. State, No. 06-13-00179-CR, 2014 WL 7183859,

at *10 (Tex. App.—Texarkana Dec. 18, 2014, pet. filed); cf. Gentry v. State, No.

12-13-00168-CR, 2014 WL 4215544, at *4 (Tex. App.—Tyler Aug. 27, 2014, pet.

filed) (mem. op., not designated for publication) (holding admission of blood-

alcohol evidence harmed defendant because court could not conclude erroneous

denial of motion to suppress did not influence defendant’s decision to plead

guilty). Indeed, the State stressed that Lewis’s blood-alcohol content was the




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“clearest” indicator that Lewis was legally intoxicated. We sustain Lewis’s first

issue. 3

                                III. CONCLUSION

      Because we hold that the trial court erred by denying Lewis’s motion to

suppress and that there is a reasonable possibility that this constitutional error

might have contributed to Lewis’s conviction or punishment, we reverse the trial

court’s order denying Lewis’s motion to suppress and the trial court’s judgment

and remand this case to the trial court for further proceedings consistent with this

opinion. See Tex. R. App. P. 43.2(d).



                                                   /s/ Lee Gabriel

                                                   LEE GABRIEL
                                                   JUSTICE

PANEL: MEIER, GABRIEL, and SUDDERTH, JJ.

PUBLISH

DELIVERED: March 12, 2015




      3
        Because our conclusion regarding Lewis’s first issue results in reversal of
the trial court’s judgment, we need not address Lewis’s second issue raising jury-
selection error. See Tex. R. App. P. 44.2(a), 47.1.




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