                                                                                 PD-1459-15
                          PD-1459-15                           COURT OF CRIMINAL APPEALS
                                                                                AUSTIN, TEXAS
                                                               Transmitted 11/9/2015 8:52:12 AM
                                                                Accepted 11/10/2015 3:58:55 PM
                                                                                 ABEL ACOSTA
                                                                                         CLERK
                           PD-____________


                   Court of Criminal Appeals of Texas


                      THE STATE OF TEXAS,
                                Petitioner

                                    v.

                       JAIME ARREDONDO,
                               Respondent



         State’s Petition from the 13th District Court of Appeals
(Cause #13-13-00589-CR), on State’s Appeal from the 28th District Court of
                 Nueces County (Cause #11-CR-2971-A)

    STATE’S PETITION FOR DISCRETIONARY REVIEW

                                     A. Cliff Gordon
                                     Tex. Bar #00793838
                                     Asst. Dist. Atty., 105th Dist.
                                     Nueces County Courthouse
                                     901 Leopard St., Rm. 206
                                     Corpus Christi, TX 78401
                                     361.888.0410 phone
                                     361.888.0399 fax
      November 10, 2015
                                     cliff.gordon@nuecesco.com

                                     Attorney for Petitioner
              IDENTITY OF JUDGE, PARTIES, AND COUNSEL

Trial Court Judge: Honorable Nanette Hasette, Presiding Judge of the 28th
              District Court of Nueces County

Petitioner:     The State of Texas, District Attorney for the 105th Judicial
                District, represented by

                Appellate counsel:

                     A. Cliff Gordon, Asst. Dist. Atty.
                     901 Leopard St., Rm. 206
                     Corpus Christi, TX 78401

                Trial and appellate counsel:

                      Mark Skurka, District Attorney
                      Eduardo Flores Jr., Asst. Dist. Atty.
                      901 Leopard St., Rm. 206
                      Corpus Christi, TX 78401

Respondent: Jaime Arrendondo, represented by

                Trial and Appellate Counsel:

                      Lisa Greenberg
                      John Gilmore
                      622 S. Tancahua St.
                      Corpus Christi, TX 78401




                                       i
                                         TABLE OF CONTENTS

IDENTITY OF JUDGE, PARTIES, AND COUNSEL ......................................... i
INDEX OF AUTHORITIES .................................................................................. iii
STATEMENT REGARDING ORAL ARGUMENT .......................................... iv
STATEMENT OF THE CASE .............................................................................. iv
STATEMENT OF PROCEDURAL HISTORY ................................................... iv
QUESTION PRESENTED FOR REVIEW ........................................................... v
     1. Whether the implied consent and mandatory blood draw
        provisions of the Texas Transportation Code are a
        constitutionally valid alternative to the warrant requirement ........... v
ARGUMENT ............................................................................................................1
PRAYER ....................................................................................................................1
CERTIFICATE OF COMPLIANCE ......................................................................2
CERTIFICATE OF SERVICE .................................................................................3
APPENDIX ...............................................................................................................4
     1. Opinion of the 13th Court of Appeals .....................................................4




                                                             ii
                                     INDEX OF AUTHORITIES


Cases
State v. Villarreal, No. PD-0306-14, 2014 WL 6734178 (Tex. Crim. App.
      Nov. 26, 2014), reh’g granted (Feb. 25, 2015) ............................................1
Rules
Tex. R. App. P. 66.3 .................................................................................................1




                                                          iii
             STATEMENT REGARDING ORAL ARGUMENT

      The State does not believe that oral argument would be helpful to

determine this appeal because the issue has already been argued in State v.

Villarreal, No. PD-0306-14, 2014 WL 6734178 (Tex. Crim. App. Nov. 26,

2014), reh’g granted (Feb. 25, 2015).

                        STATEMENT OF THE CASE

      A grand jury indicted Jaime Arredondo for Felony Driving While

Intoxicated. Opinion at 2. The trial court granted his motion to suppress

evidence relating to the warrantless draw of his blood pursuant to TEX.

TRANSP. CODE § 724.012(b). Opinion at 2. The 13th Court of Appeals

affirmed, holding that § 724.012 is not a constitutionally recognized

alternative to the warrant requirement. Opinion at 5-6.

               STATEMENT OF PROCEDURAL HISTORY

 Date court of appeals’ Opinion handed down       October 8, 2015

         Date State filed Motion for Rehearing    n/a

          Date Motion for Rehearing overruled     n/a




                                        iv
               QUESTION PRESENTED FOR REVIEW

1.   Whether the implied consent and mandatory blood draw provisions

     of the Texas Transportation Code are a constitutionally valid

     alternative to the warrant requirement.




                                    v
                                 ARGUMENT

      Although this issue was initially decided against the State in State v.

Villarreal, No. PD-0306-14, 2014 WL 6734178 (Tex. Crim. App. Nov. 26,

2014), reh’g granted (Feb. 25, 2015), the Court has yet to issue a final

decision. Thus, the State respectfully requests that cases like the present

one, with similar or identical issues, be held under consideration until

Villarreal does become final and binding.

      The State continues to argue that the implied consent and mandatory

blood draw provisions of the Texas Transportation Code are a

constitutionally valid alternative to the warrant requirement, and that the

decision of the Thirteenth Court of Appeals to the contrary decides an

important question of federal law that has not been, but should be, settled

by the Court of Criminal Appeals. See Tex. R. App. P. 66.3(b).

                                     PRAYER

      For these reasons, the State requests that the Court grant this petition

for discretionary review, reverse the court of appeals’ judgment, and grant

the State all other proper relief.



                                       1
                                Respectfully Submitted,

                                /s/ A. Cliff Gordon
                                A. Cliff Gordon
                                Tex. Bar #00793838
                                Asst. Dist. Atty., 105th Dist.
                                Nueces County Courthouse
                                901 Leopard St., Rm. 206
                                Corpus Christi, TX 78401
                                361.888.0410 phone
                                361.888.0399 fax
                                cliff.gordon@nuecesco.com



                CERTIFICATE OF COMPLIANCE

     According to the word count of the computer program used to
prepare this document, it contains 730 words.




                               2
                     CERTIFICATE OF SERVICE

     On November 9, 2015, a true copy of the foregoing was served via
eServe on the following:

     Ms. Lisa Greenberg
     lisagreenberglaw@gmail.com
     Mr. John Gilmore
     gilmorelaw@msn.com
     622 S. Tancahua St.
     Corpus Christi, TX 78401
     Appellate Counsel for Appellee

                                /s/ A. Cliff Gordon_______________
                                A. Cliff Gordon




                                  3
                              APPENDIX

1.   Opinion of the 13th Court of Appeals




                                   4
                           NUMBER 13-13-00589-CR

                          COURT OF APPEALS

                THIRTEENTH DISTRICT OF TEXAS

                  CORPUS CHRISTI – EDINBURG

 THE STATE OF TEXAS,                                                 Appellant,

                                           v.

 JAIME ARREDONDO,                                                     Appellee.


                  On appeal from the 28th District Court
                       of Nueces County, Texas.


                       MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Longoria
          Memorandum Opinion by Chief Justice Valdez
        In this appeal, the State challenges the trial court's granting of appellee

 Jaime Arredondo’s motion to suppress blood-alcohol test results that police seized

 following his arrest for driving while intoxicated. We affirm.

                                   I.     BACKGROUND
       The relevant facts are undisputed. A police officer pulled Arredondo over

for driving illegally on the center dividing line of a street. During the traffic stop,

Arredondo showed signs of intoxication. Believing Arredondo to be intoxicated

beyond the legal limit, the police officer arrested him for driving while intoxicated.

Arredondo had been convicted of driving while intoxicated two times before. After

being arrested, Arredondo was asked to provide a sample of his blood for testing.

Arredondo refused.      Nevertheless, the police officer obtained a sample of

Arredondo’s blood without a warrant and without his consent, believing the search

to be authorized under Texas’ mandatory blood-draw statute for repeat DWI

offenders.   See TEX. TRANSP. CODE ANN. § 724.012(b)(3)(B) (West, Westlaw

through 2015 R.S.) (authorizing mandatory blood draws for drunk-driving arrestees

who, prior to their arrest, had been convicted of drunk-driving two or more times

before). Although the police officer did not attempt to secure a warrant before

drawing a sample of Arredondo’s blood, the testimony showed that it would have

taken approximately fifteen to twenty minutes to get one.

       Based on these facts, Arredondo filed a motion to suppress evidence of the

blood sample under the Fourth Amendment. The State stipulated that Arredondo’s

blood was drawn without a warrant. Citing Missouri v. McNeely, Arredondo argued

that the police officer lacked exigent circumstances to obtain the warrantless blood

sample and therefore conducted an illegal search. See 133 S. Ct. 1552 (2013)

(holding that, absent exigent circumstances or some other exception to the warrant

requirement, a warrantless blood draw in a drunk-driving case violates the Fourth

Amendment). Finding no exigent circumstances, the trial court suppressed the

warrantless blood sample. This appeal followed.

                                          2
                             II.   MOTION TO SUPPRESS

      By its sole issue, the State contends that the trial court erred when it

suppressed evidence of the warrantless blood sample.

      A. APPLICABLE LAW AND STANDARD OF REVIEW

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. The taking of a blood sample by the government is a

search that triggers the protections of the Fourth Amendment. See Schmerber v.

California, 384 U.S. 757, 770 (1966). “To suppress evidence on an alleged Fourth

Amendment violation, the defendant bears the initial burden of producing evidence

that rebuts the presumption of proper police conduct.” Ford v. State, 158 S.W.3d

488, 492 (Tex. Crim. App. 2005). “A defendant satisfies this burden by establishing

that a search or seizure occurred without a warrant.” Id. Once a defendant

establishes that there was no warrant, the burden shifts to the State to prove the

warrantless search was reasonable under the totality of the circumstances.

Amador v. State, 221 S.W.3d 666, 672–73 (Tex. Crim. App. 2007). The State

satisfies this burden if it proves an exception to the warrant requirement. See

Gutierrez v. State, 221 S.W.3d 680, 685 (Tex. Crim. App. 2007).

      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. A variety of circumstances may give rise to an

exigency sufficient to justify a warrantless search, including the imminent
                                      3
destruction of evidence. Id. Courts look to the “totality of circumstances” to

determine whether a law enforcement officer faced an emergency that justified

acting without a warrant. Id. at 1559. In McNeely, the United States Supreme

Court held that warrantless blood draws in drunk-driving cases violate the Fourth

Amendment unless the State can show exigent circumstances or some other

exception to the warrant requirement. Id.

         Another exception to the warrant requirement applies when the defendant

consents to the particular search at issue. Schneckloth v. Bustamonte, 412 U.S.

218, 219 (1973). “For consent to search to be valid as an exception to the warrant

requirement, the consent must be given voluntarily, without coercion by threats or

force and not as the result of duress.” Forsyth v. State, 438 S.W.3d 216, 222 (Tex.

App.—Eastland 2014, pet. ref’d). Additionally, a person who consents to a search

may also specifically limit or revoke such consent. See Miller v. State, 393 S.W.3d

255, 266 (Tex. Crim. App. 2012). The State must prove valid consent by clear and

convincing evidence. See Fienen v. State, 390 S.W.3d 328, 333 (Tex. Crim. App.

2012).

         We review a trial court’s decision on a motion to suppress for an abuse of

discretion. Crain v. State, 315 S.W.3d 43, 48 (Tex. Crim. App. 2010). Under our

abuse of discretion analysis, we use a bifurcated standard of review. State v.

Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000) (en banc) (citing Guzman v.

State, 955 S.W.2d 85, 88 (Tex. Crim. App. 1997) (en banc)). We give almost total

deference to the trial court’s findings of historical fact that are supported by the

record and to its resolution of mixed questions of law and fact that turn on an

evaluation of credibility and demeanor. See Amador, 221 S.W.3d at 673 (citing

                                          4
Guzman, 995 S.W.2d at 89). We “review de novo ‘mixed questions of law and

fact’ that do not depend upon credibility and demeanor.” Id. (quoting Montanez v.

State, 195 S.W.3d 101, 107 (Tex. Crim. App. 2006)).

       B. DISCUSSION

       In this case, the State stipulated that Arredondo’s blood was drawn without

a warrant. Therefore, the burden shifted to the State to prove that the warrantless

blood draw was reasonable. See id. On appeal, the State does not argue that an

exigent circumstance existed to justify the warrantless blood draw. Instead, the

State argues that the warrantless blood draw should be upheld as reasonable

under the consent exception to the warrant requirement.

       To support this argument, the State relies on the implied-consent and

mandatory-blood-draw provisions of the transportation code, which purport to

establish implied consent for all drivers arrested on suspicion of driving while

intoxicated.   See TEX. TRANSP. CODE ANN. § 724.011.          Read together, these

provisions provide that a person arrested for driving while intoxicated “is deemed

to have consented” to the taking of a blood sample, see id.; and consent “deemed”

to have been given under section 724.011(a) may not be withdrawn or revoked if,

among other things, the arrestee has two prior convictions for driving while

intoxicated. Id. § 724.012(b)(3)(B). Relying on this statutory scheme, the State

argues that by getting arrested for driving while intoxicated, Arredondo impliedly

consented to the blood sample and could not withdraw that consent because of

his two previous convictions for driving while intoxicated.

       After the State filed its appellate brief in this case, the court of criminal

appeals affirmed our decision in State v. Villarreal and held, among other things,

                                         5
that a warrantless blood draw taken pursuant to these implied-consent and

mandatory-blood draw provisions does not fall within the consent exception to the

warrant requirement when, as here, the suspect refuses to consent to the search.

See No. PD–0306–14, 2014 WL 6734178, at *11 (Tex. Crim. App. Nov. 26, 2014)

(reh’g granted). In reaching its decision, the court observed that a suspect's

consent to search must be freely and voluntarily given, and a necessary element

of consent is the ability to limit or revoke it. Id. The court concluded:

       It would be wholly inconsistent with these principles to uphold the
       warrantless search of a suspect's blood on the basis of consent when
       a suspect has, as in the present case, expressly and unequivocally
       refused to submit to the search. That explicit refusal to submit to
       blood testing overrides the existence of any implied consent, and,
       unless some other justification for the search applies, there remains
       no valid basis for conducting a warrantless search under those
       circumstances. To the extent the State suggests that the implied-
       consent and mandatory-blood-draw provisions in the Transportation
       Code categorically extinguish a DWI suspect's right to withdraw
       consent when [he or she has two prior convictions for driving while
       intoxicated], that suggestion cannot be squared with the requirement
       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. In other words, 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. (citations omitted). Thus, the Fourth Amendment requires “actual” consent;

statutorily “implied” consent does not obviate the need for a warrant and does not

trump a suspect’s actual refusal to consent to a blood draw. See id; see also

Forsyth, 438 S.W.3d at 222 (holding that implied consent under the transportation

code is not the equivalent to voluntary consent as a recognized exception to the

warrant requirement); State v. Ruiz, No. 13-13-00507-CR, 2015 WL 5626252, at

*3 (Tex. App.—Corpus Christi Aug. 27, 2015, no. pet. h.) (mem. op.) (holding the


                                          6
same as it relates to an unconscious drunk-driving defendant under section

724.014(a) of the transportation code).

       Accordingly, we conclude that the State did not meet its burden to establish

that Arredondo consented to the warrantless blood draw in this case because the

evidence undisputedly shows that he refused the police officer’s request to obtain

a sample of his blood. See Ford, 158 S.W.3d at 492; see also Villarreal, 2014 WL

6734178, at *11. We therefore overrule the State’s sole issue.

                                  III.    CONCLUSION

       We affirm the judgment of the trial court.

                                                    /s/ Rogelio Valdez
                                                    ROGELIO VALDEZ
                                                    Chief Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
8th day of October, 2015.




                                          7
