                                                                                    PD-0233-15
                             PD-0233-15                            COURT OF CRIMINAL APPEALS
                                                                                    AUSTIN, TEXAS
                                                                 Transmitted 2/27/2015 2:05:32 PM
                                                                    Accepted 3/2/2015 11:21:31 AM
                                                                                     ABEL ACOSTA
                               No. PD-______-14                                              CLERK



                                      IN THE
       COURT OF CRIMINAL APPEALS
                                  AUSTIN, TEXAS


                                 STATE OF TEXAS,
                                        Appellant-Petitioner
March 2, 2015                            v.
                              IRMA CLAUDIA GARCIA
                                       Appellee-Respondent


                On the State’s petition for discretionary review from
                 The Fourth Court of Appeals, San Antonio, Texas
                      Appellate Cause No. 04-14-00101-CR

         Tried in the 144th Judicial District Court, Bexar County, Texas
                         Trial Cause No. 2012-CR-8677

         STATE’S PETITION FOR DISCRETIONARY REVIEW


                          NICHOLAS “NICO” LAHOOD
                           Criminal District Attorney
                               NATHAN E. MOREY
                      Assistant Criminal District Attorney
                             State Bar No. 24074756
                     CRIMINAL DISTRICT ATTORNEY’S OFFICE
                              Bexar County, Texas
                           101 West Nueva, Suite 370
                           San Antonio, Texas 78205
                             Voice: (210) 335-2414
                              Fax: (210) 335-2436
                        Email: nathan.morey@bexar.org
                         Attorneys for the State of Texas
               STATE v. GARCIA – State’s Petition for Discretionary Review



                     IDENTITY OF THE PARTIES AND COUNSEL

      The parties to the suit are as follows:

Defendant/Appellee/Respondent
     Irma Claudia Garcia
Counsel for Defendant/Appellee/Respondent
     Adam Crawshaw – counsel at trial and appeal
     Hallye Casey Braud – counsel on appeal
     Attorneys at Law
     San Antonio, Texas

State of Texas
       Nathan E. Morey – counsel on appeal and discretionary review
       Melissa Saenz – counsel at trial
       Assistant Criminal District Attorneys
       Bexar County, Texas

Trial Judge
       Honorable Andrew Carruthers
       Criminal Law Magistrate
       Bexar County, Texas

Court of Appeals Panel
      Honorable Sandee Bryan Marion, Chief Justice
      Honorable Karen Angelini, Justice
      Honorable Marialyn Barnard, Justice (author of the opinion)
      Fourth Court of Appeals District of Texas
      San Antonio, Texas




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                      STATE v. GARCIA – State’s Petition for Discretionary Review



                                             TABLE OF CONTENTS

IDENTITY OF THE PARTIES AND COUNSEL .................................................................. ii

TABLE OF CONTENTS ................................................................................................ iii

INDEX OF AUTHORITIES............................................................................................. iv

STATEMENT OF THE CASE ...........................................................................................v

STATEMENT OF PROCEDURAL HISTORY .................................................................... vi

GROUNDS FOR REVIEW ...............................................................................................1
   Sole Ground:                   Is a warrantless, nonconsensual blood draw
                                  administered in compliance with Transportation Code
                                  section 724.012(b)(3)(B) reasonable under the Fourth
                                  Amendment? .........................................................................1

ARGUMENT .................................................................................................................2

PRAYER FOR RELIEF ....................................................................................................3

CERTIFICATE OF SERVICE ............................................................................................4

CERTIFICATE OF COMPLIANCE ....................................................................................5

APPENDIX A: Court of Appeals’ Opinion..................................................................A

APPENDIX B: Order Denying Rehearing ................................................................... B




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                    STATE v. GARCIA – State’s Petition for Discretionary Review



                                        INDEX OF AUTHORITIES

Statutes:
  TEX. PENAL CODE § 49.09(b)(2) .......................................................................... vi

  TEX. TRANSP. CODE § 724.012(b)(3)(B) ................................................................2

Cases:
  Holidy v. State,
    No. PD-0622-14 .................................................................................................2

  Missouri v. McNeely,
    133 S. Ct. 1552 (2013) .......................................................................................2
  Reeder v. State,
    No. PD-0601-14 .................................................................................................2
  Smith v. State,
    No. PD-1615-14 .................................................................................................2

  State v. Garcia,
    No. 04-14-00101-CR, 2015 Tex. App. LEXIS 1022
    (Tex. App.—San Antonio Feb. 4, 2015, pet. filed) ................................. vi, 2, 3
  State v. Villarreal,
    No. PD-0306-14 .................................................................................................2

Rules:
  TEX. R. APP. P. 6.3(a) ............................................................................................4

  TEX. R. APP. P. 9.4(i)(3) ........................................................................................5
  TEX. R. APP. P. 9.5(b)............................................................................................4

  TEX. R. APP. P. 68.1 ............................................................................................. vi

  TEX. R. APP. P. 68.11 .............................................................................................4



                                                         iv
                STATE v. GARCIA – State’s Petition for Discretionary Review



TO THE HONORABLE COURT OF CRIMINAL APPEALS:

      Now comes the State of Texas, by and through Nicholas “Nico” LaHood,

Criminal District Attorney of Bexar County, Texas, and the undersigned assistant

criminal district attorney, with the filing of the following petition for discretionary

review:

                              STATEMENT OF THE CASE

      Irma Claudia Garcia, hereinafter referred to as Appellee, was arrested for the

offense of driving while intoxicated. The arresting officer ordered her to submit to

a warrantless blood draw pursuant to Texas Transportation Code section

724.012(b) because Appellee refused to provide a specimen of breath and because

the officer discovered that she had two prior convictions for DWI. The trial court

granted Appellee’s motion to suppress the results of the blood draw on the ground

that the warrantless blood draw was not supported by exigent circumstances. The

Fourth Court of Appeals held that section 724.012(b) does not allow for a

warrantless, nonconsensual blood draw absent exigent circumstances.




                                            v
                STATE v. GARCIA – State’s Petition for Discretionary Review



                      STATEMENT OF PROCEDURAL HISTORY

      A grand jury indicted Appellant for the felony offense of driving while

intoxicated (C.R. at 19). See TEX. PENAL CODE § 49.09(b)(2). The State appealed

the trial court’s order suppressing the results of a blood draw (C.R. at 37, 42-44).

See TEX. CODE CRIM. PROC. art. 44.01(a)(5). The Fourth Court of Appeals issued a

published opinion affirming the trial court’s order. State v. Garcia, No. 04-14-

00101-CR, 2015 Tex. App. LEXIS 1022 (Tex. App.—San Antonio Feb. 4, 2015,

pet. filed).   The court of appeals denied the State’s motion for rehearing on

February 23, 2015 (Appendix B). The State now petitions this Court to review the

opinion and judgment of the court of appeals. See TEX. R. APP. P. 68.1.




                                            vi
             STATE v. GARCIA – State’s Petition for Discretionary Review



                             GROUNDS FOR REVIEW

Sole Ground: Is a warrantless, nonconsensual blood draw administered in
             compliance with Transportation Code section 724.012(b)(3)(B)
             reasonable under the Fourth Amendment?




                                         1
                 STATE v. GARCIA – State’s Petition for Discretionary Review



                                       ARGUMENT

        The court of appeals concluded that a blood draw administered pursuant to

the Transportation Code was not a reasonable search under the Fourth Amendment

because it did not qualify under any previously recognized exception. Garcia, at

*3–4. The State continues to insist that the holding in Missouri v. McNeely, 133 S.

Ct. 1552 (2013), does not affect the reasonableness of a search administered on a

person with prior convictions for DWI—regardless of a warrant or consent. See

TEX. TRANSP. CODE § 724.012(b)(3)(B).

        This petition raises the same ground for review that has previously been

raised by petitions in State v. Villarreal, No. PD-0306-14; Reeder v. State, No. PD-

0601-14; Holidy v. State, No. PD-0622-14; and Smith v. State, No. PD-1615-14—

all of which have been granted by this Court. Each of these cases concern the

impact of the Supreme Court’s holding in McNeely on those drunk-driving

investigation with suspects who have prior convictions for DWI.                This Court

recently granted rehearing in Villarreal on February 25, 2015—only a few days

after the court of appeals denied the State’s motion for rehearing in the present

case.

        This case does not contain any material factual disputes; the issue at every

stage has been whether the statute permits reasonable searches under the Fourth

Amendment (Jan. 16, 2014 R.R. at 4–22). The court of appeals, in a published


                                             2
                STATE v. GARCIA – State’s Petition for Discretionary Review



opinion, decided that it did not. Garcia, at *3–4. The State has nothing to say that

has not already been said in previous briefs and petitions. There being no material

distinction between these cases, the State respectfully asks this Court to dispose of

this petition in a manner consistent with the petitions in Villarreal, Reeder, Holidy,

and Smith once those cases have been finally decided and a mandate issued.

                                 PRAYER FOR RELIEF

      WHEREFORE, PREMISES CONSIDERED, Appellant-Petitioner State

prays the Court grant the State’s petition for discretionary review and dispose of

this case in a manner consistent with its dispositions in Villarreal, No. PD-0306-

14; Reeder, No. PD-0601-14; Holidy, No. PD-0622-14; and Smith, No. PD-1615-

14.

                                             Respectfully submitted,

                                             NICHOLAS “NICO” LAHOOD
                                             Criminal District Attorney
                                             Bexar County, Texas
                                                          /s/ Nathan E. Morey
                                             NATHAN E. MOREY
                                             Assistant Criminal District Attorney
                                             State Bar No. 24074756
                                             101 West Nueva, Suite 720
                                             San Antonio, Texas 78205
                                             Voice: (210) 335-2414
                                             Fax: (210) 335-2436
                                             Email: nathan.morey@bexar.org
                                             Attorneys for the State of Texas



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               STATE v. GARCIA – State’s Petition for Discretionary Review



                             CERTIFICATE OF SERVICE

      I, Nathan E. Morey, assistant district attorney for Bexar County, Texas,

certify that a copy of the foregoing petition has been delivered by email to Hallye

Casey Braud and Lisa McMinn on Friday, February 27, 2015 in accordance with

Rules 6.3(a), 9.5(b), and 68.11 of the Texas Rules of Appellate Procedure.

                                                         /s/ Nathan E. Morey
                                            NATHAN E. MOREY
                                            Assistant Criminal District Attorney
                                            State Bar No. 24074756
                                            101 West Nueva, Suite 370
                                            San Antonio, Texas 78205
                                            Voice: (210) 335-2414
                                            Fax: (210) 335-2436
                                            Email: nathan.morey@bexar.org
                                            Attorney for the State of Texas
cc: HALLYE CASEY BRAUD
    Attorney at Law
    State Bar No. 24081402
    LAW OFFICES OF JAMIE BALAGIA, P.C.
    313 South Main Avenue
    San Antonio, Texas 78204
    Voice: (210) 394-3833
    Fax: (210) 271-3833
    Email: hallye@dwidude.com
    Attorney for Appellee-Respondent

   LISA MCMINN
   State Prosecuting Attorney
   State Bar No. 13803300
   P.O.Box 13046
   Austin, Texas 78711
   Email: Lisa.McMinn@SPA.texas.gov



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               STATE v. GARCIA – State’s Petition for Discretionary Review



                          CERTIFICATE OF COMPLIANCE

      I, Nathan E. Morey, certify that, pursuant to Texas Rules of Appellate

Procedure 9.4(i)(2)(D) and 9.4(i)(3), the above petition for discretionary review

contains 1,317 words according to the “word count” feature of Microsoft Office.

                                                         /s/ Nathan E. Morey
                                            NATHAN E. MOREY
                                            Assistant Criminal District Attorney
                                            State Bar No. 24074756
                                            101 West Nueva, Suite 370
                                            San Antonio, Texas 78205
                                            Voice: (210) 335-2414
                                            Fax: (210) 335-2436
                                            Email: nathan.morey@bexar.org
                                            Attorney for the State of Texas




                                           5
STATE v. GARCIA – State’s Petition for Discretionary Review




     APPENDIX A: Court of Appeals’ Opinion




                            A
                                Fourth Court of Appeals
                                        San Antonio, Texas
                                                 OPINION
                                            No. 04-14-00101-CR

                                            The STATE of Texas,
                                                 Appellant

                                                        v.

                                          Irma Claudio GARCIA,
                                                 Appellee

                     From the 144th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2012CR8677
                     The Honorable Andrew Wyatt Carruthers, Judge Presiding 1

Opinion by:       Marialyn Barnard, Justice

Sitting:          Sandee Bryan Marion, Chief Justice
                  Karen Angelini, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: February 4, 2015

AFFIRMED

           The State appeals from the trial court’s order granting appellee Irma Claudio Garcia’s

motion to suppress. The State contends the trial court erred in granting the motion to suppress

because the Supreme Court’s decision in Missouri v. McNeely, __ U.S. __, 133 S.Ct. 1552 (2013)

does not require the existence of exigent circumstances before a police office can require a




1
  The Honorable Lorina Rummel is the presiding judge of the 144th District Court, Bexar County, Texas. However,
the order granting the motion to suppress which is at issue in this appeal was signed by the Honorable Andrew Wyatt
Carruthers, the judge of the Magistrate Court, Bexar County, Texas.
                                                                                   04-14-00101-CR


warrantless, nonconsensual blood draw pursuant to section 724.012(b) of the Texas Transportation

Code. We affirm the trial court’s order granting the motion to suppress.

                                          BACKGROUND

       A detailed rendition of the facts is unnecessary given the issue and our disposition. We

therefore provide only a brief factual and procedural background.

       The record from the hearing on Garcia’s motion to suppress establishes that Officer

Christopher Dech of the San Antonio Police Department was dispatched to an automobile

collision. When the officer arrived, two individuals told him that a pickup truck driven by Garcia

crashed into the back of their vehicle as both vehicles were traveling along the roadway. Officer

Dech testified he smelled a strong odor of alcohol coming from Garcia, and that she had blood

shot eyes and was unsteady on her feet. Garcia admitted to consuming intoxicants at a party. The

office administered the HGN test and noted signs of intoxication. Thereafter, Officer Dech

arrested Garcia and took her to the magistrate’s office for booking.

       Garcia declined to provide a breath or blood specimen, but according to Officer Dech, she

admitted she had two prior DWI convictions from Harris County, Texas. As a result of these

admissions, the officer requested Garcia’s criminal history and verified the prior convictions.

Based on the verified, prior convictions, Officer Dech mandated that Garcia provide a blood

specimen pursuant to section 724.012(b) of the Transportation Code. Officer Dech did not obtain

a warrant nor did Garcia consent to the blood draw. There was no evidence presented at the

suppression hearing regarding any possible exigent circumstances — or other exception to the

warrant requirement — that would have permitted the officer to take the blood draw without first

obtaining a warrant.

       Garcia was indicted and prior to trial filed a motion to suppress the results of the blood

draw, arguing that the Supreme Court’s decision in Missouri v. McNeely mandated that in the
                                               -2-
                                                                                                   04-14-00101-CR


absence of a warrant, the State demonstrate the existence of exigent circumstances prior to

obtaining a nonconsensual blood draw. After hearing the evidence and considering the arguments

of counsel, the trial court agreed and granted Garcia’s motion to suppress. The State then perfected

this appeal.

                                                    ANALYSIS

         As noted above, the State contends the Supreme Court’s decision in Missouri v. McNeely

did not require the trial court to grant Garcia’s motion to suppress. More specifically, the State

contends the Supreme Court’s decision does not require the existence of exigent circumstances

before a blood draw may be compelled when law enforcement has failed to obtain a warrant or

consent. Rather, the State contends section 724.012(b), specifically subsection (3)(B) — which

states that an officer shall take a blood draw if a person arrested for DWI has two prior DWI

convictions — permits a warrantless blood draw whether exigent circumstances exist or not. See

TEX. TRANSP. CODE ANN. § 724.012(b)(3)(B) (West 2011).

         In several cases, this court analyzed McNeely and concluded section 724.012(b) does not

constitute a valid exception to the warrant requirement of the Fourth Amendment. See, e.g., Aviles

v. State, 443 S.W.3d 291, 294 (Tex. App.—San Antonio 2014, pet. filed); McNeil v. State, 443

S.W.3d 295, 300 (Tex. App.—San Antonio 2014, pet. filed); Weems v. State, 434 S.W.3d 655, 665

(Tex. App.—San Antonio 2014, pet. granted). Moreover, the Texas Court of Criminal Appeals

has now addressed the issue, reaching the same conclusion. See State v. Villarreal, No. PD-0306-

14, 2014 WL 6734178 (Tex. Crim. App. Nov. 26, 2014). 2




2
  In Flores v. State, 04-13-00754-CR, 2014 WL 7183481, at *2 (Tex. App.—San Antonio Dec. 17, 2014, no pet. h.)
(mem. op.) (not designated for publication) (citing Villarreal, 2014 WL 6734178, at *2), this court first recognized
that the court in Villarreal held the provisions in the Texas Transportation Code do not provide a valid exception to
the warrant requirement.

                                                        -3-
                                                                                    04-14-00101-CR


        In Villarreal, the court held the provisions in the Texas Transportation Code — including

section 724.012(b) — do not provide a constitutionally valid exception to the warrant requirement

of the Fourth Amendment. Id. at *20. The court explained that the McNeely holding made it clear

that drawing an individual’s blood in a DWI case without a warrant “‘is reasonable only if it falls

within a recognized exception’ to the warrant requirement.” Id. (quoting McNeely, 133 S.Ct. at

1558) (emphasis added). Accordingly, based on its interpretation of McNeely, the court rejected

the State’s contention that a warrantless, nonconsensual blood draw conducted pursuant to the

provisions of the Texas Transportation Code falls under a “recognized” exception to the Fourth

Amendment’s warrant requirement. Villarreal, 2014 WL 6734178, at *20. The court likewise

rejected the State’s contention that a search pursuant to the mandates of the Transportation Code

could be upheld under a general Fourth Amendment balancing test. Id.

        Accordingly, based on the analysis and holding in Villarreal, as well as the analyses and

holdings in our prior opinions, we hold the trial court did not err in granting Garcia’s motion to

suppress. See Villarreal, 2014 WL 6734178, at *20; Aviles, 443 S.W.3d at 294; McNeil, 443

S.W.3d at 300; Weems, 434 S.W.3d at 665. Contrary to the State’s sole assertion, McNeely

requires the existence of exigent circumstances or some other recognized exception to the warrant

requirement before a police officer can order a warrantless, nonconsensual blood draw pursuant to

the provisions of the Texas Transportation Code, including section 724.012(b). See Villarreal,

2014 WL 6734178, at *20 (quoting McNeely, 133 S.Ct. at 1558) (emphasis added). Here, the State

did not attempt to establish a recognized exception to the warrant requirement of the Fourth

Amendment, relying only on section 724.012(b). We therefore overrule the State’s issue and

affirm the trial court’s order.

                                                 Marialyn Barnard, Justice

Publish
                                               -4-
STATE v. GARCIA – State’s Petition for Discretionary Review




     APPENDIX B: Order Denying Rehearing




                            B
                                                                Irma Claudio GarciaAppellee




                          Fourth Court of Appeals
                                San Antonio, Texas
                                Monday, February 23, 2015

                                    No. 04-14-00101-CR

                                   The STATE of Texas,
                                        Appellant

                                             v.

                                  Irma Claudio GARCIA,
                                         Appellee

                 From the 144th Judicial District Court, Bexar County, Texas
                               Trial Court No. 2012CR8677
                  The Honorable Andrew Wyatt Carruthers, Judge Presiding


                                      ORDER

Sitting:      Sandy Bryan Marion, Chief Justice
              Karen Angelini, Justice
              Marialyn Barnard, Justice

     The panel has considered the Appellant’s Motion for Rehearing and the motion is
DENIED.


                                                  _________________________________
                                                  Marialyn Barnard, Justice


       IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 23rd day of February, 2015.



                                                  ___________________________________
                                                  Keith E. Hottle
                                                  Clerk of Court
