                           PD-1502-15                                            PD-1502-15
                                                                COURT OF CRIMINAL APPEALS
                                                                                AUSTIN, TEXAS
                                                              Transmitted 11/19/2015 2:51:50 PM
                                                               Accepted 11/20/2015 11:39:14 AM
                                                                                 ABEL ACOSTA
                                NO._______                                               CLERK

                TO THE COURT OF CRIMINAL APPEALS
                             OF THE
                         STATE OF TEXAS



                    ERIC ALONZO GREER, Appellant

                                     V.

                     THE STATE OF TEXAS, Appellee



        On Appeal from the First Court of Appeals, No. 01-14-00033-CR
                    Appeal from Galveston County, Texas
                    TH
                 56 District Court, Cause No. 12-CR-3333



         STATE’S PETITION FOR DISCRETIONARY REVIEW



                           JACK ROADY
                    CRIMINAL DISTRICT ATTORNEY
                        GALVESTON COUNTY

                       ALLISON LINDBLADE
              ASSISTANT CRIMINAL DISTRICT ATTORNEY
                       GALVESTON COUNTY
                          STATE BAR NO. 24062850
                       600 59TH STREET, SUITE 1001
                           GALVESTON, TX 77551
                    (409) 766-2355, FAX (409) 765-3261
                     allison.lindblade@co.galveston.tx.us



November 20, 2015
                                      i
                                  TABLE OF CONTENTS

Table of Contents                                                        ii

Identity of Parties and Counsel                                          iii

Index of Authorities                                                     iv

Statement Regarding Oral Argument                                        1

Statement of the Case                                                    1

Statement of Procedural History                                          2

Question for Review                                                      2
           If a warrantless blood draw conducted pursuant to Section
           724.012(b) of the Transportation Code violates the Fourth
           Amendment, must that evidence be suppressed when, at the
           time of the search, the statute was presumptively valid and
           it dispensed with the warrant requirement?

Argument                                                                 3

Prayer for Relief                                                        7

Certificate of Service                                                   8

Certificate of Compliance                                                8

Appendix                                                                 9




                                        ii
                         IDENTITY OF THE PARTIES

Appellant: Eric Alonzo Greer.

Presiding Judge: Hon. Lonnie Cox.

Trial counsel for Appellant: G. Byron Fulk, 4207 Running Pine Dr, League City,
TX 77573.

Appellate counsel for Appellant: Winston       Cochran,       P.O.     Box      2945
League City, TX 77574.

Trial counsel for State: Kacey Vandeaver & Kayla Allen, Assistant            Criminal
District Attorneys, 600 59th Street, Suite 1001, Galveston, Texas 77551.

Appellate counsel for State: Allison Lindblade, Assistant Criminal District Attorney,
600 59th Street, Suite 1001, Galveston, Texas 77551.




                                         iii
                                              INDEX OF AUTHORITIES


CASES 

Davis v. United States, 131 S. Ct. 2419, 2428-34 (2011). .........................................4

Greer v. State, 01-14-00033-CR, 2015 WL 6366737 (Tex. App.—Houston [1st
 Dist.] Oct. 22, 2015) ............................................................................................2, 3

Illinois v. Krull, 480 U.S. 342, 349-57 (1987) ...........................................................4

Karnev v. State, 281 S.W.3d 428, 434 (Tex. Crim. App. 2009) ................................3

Miles v. State, 241 S.W.3d 28, 36, 46 (Tex. Crim. App. 2007).................................5

Rocha v. State, 16 S.W.3d 1, 18-19 (Tex. Crim. App. 2000). ...................................5

State v. Jackson, 464 S.W.3d 724, 731 (Tex. Crim. App. 2015)...........................5, 6

United States v. Jones, ––– U.S. ––––, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012) ........
 .................................................................................................................................6

Wilson v. State, 311 S.W.3d 452, 458 (Tex. Crim. App. 2010) ................................5


STATUTES 

TEX. CODE CRIM. PROC. art. 38.23. ............................................................................5

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




                                                                iv
                                   NO._______

                  TO THE COURT OF CRIMINAL APPEALS
                                OF THE
                            STATE OF TEXAS



                      ERIC ALONZO GREER, Appellant

                                         V.

                       THE STATE OF TEXAS, Appellee



           STATE’S PETITION FOR DISCRETIONARY REVIEW



TO THE HONORABLE COURT OF APPEALS:

      Now comes Jack Roady, Criminal District Attorney for Galveston County,

Texas, and respectfully urges this Court to grant discretionary review.

             STATEMENT REGARDING ORAL ARGUMENT

      The State of Texas does not request oral argument.

                         STATEMENT OF THE CASE

      A jury convicted Eric Alonzo Greer of Felony Driving While Intoxicated

and assessed a sentence of five years community supervision. The Court of

Appeals reversed, holding that the trial court erred by admitting the blood test


                                         1
results obtained from a nonconsensual, warrantless blood draw.1


               STATEMENT OF PROCEDURAL HISTORY


      The Court of Appeals’ published opinion was issued on October 22, 2015.

Neither party sought rehearing.


                          QUESTION FOR REVIEW

If a warrantless blood draw conducted pursuant to Section 724.012(b) of
the Transportation Code violates the Fourth Amendment, must that
evidence be suppressed when, at the time of the search, the statute was
presumptively valid and it dispensed with the warrant requirement?




1
 Greer v. State, 01-14-00033-CR, 2015 WL 6366737 (Tex. App.—Houston [1st Dist.] Oct.
22, 2015) (Attached hereto as “Attachment A”).



                                         2
                                    ARGUMENT

       In 2012, Greer was stopped for a traffic violation and was subsequently

arrested for DWI. Greer refused to perform any field sobriety tests or provide a

breath sample. After DPS Trooper Guerra confirmed that Greer had two prior

DWI convictions, he transported Greer to a hospital where a warrantless blood

draw    was     taken    pursuant    to    Texas    Transportation      Code     section

724.012(b)(3)(B).2 Guerra did not attempt to obtain a warrant because he

believed that he had authority to proceed immediately with the blood draw

pursuant to the statute. After the trial court denied his motion to suppress, Greer

proceeded to trial and was convicted of felony driving while intoxicated.

       The First Court of Appeals rejected the State’s argument that Article

38.23 of the Texas Code of Criminal Procedure should not be read to exclude

the blood evidence in this case in light of the fact that the trooper was acting in

reliance of presumptively valid law, Section 724.012(b)(3).3

       The blood draw in this case occurred in 2012, before any court had held

that the statute violates the Fourth Amendment. At the time of the search, the

statute was presumptively constitutional.4 So even if this Court determines that

the statute is invalid, the blood test results in this case should not be suppressed
2
  See TEX. TRANSP. CODE § 724.012(b)(3)(B) (West 2011).
3
  Greer, 2015 WL 6366737, at *2.
4
  See Karnev v. State, 281 S.W.3d 428, 434 (Tex. Crim. App. 2009) (“Statutes are presumed
to be constitutional until it is determined otherwise.”).


                                           3
under either the Federal or Texas exclusionary rules.

       The United States Supreme Court has held that the good-faith exception

to the Fourth Amendment’s exclusionary rule applies when law enforcement, at

the time of the search, acted objectively reasonably by relying on a statute that

was later declared unconstitutional, or on binding judicial precedent that was

subsequently overruled.5 Davis held that it was inappropriate to apply the

exclusionary rule to a search that was, at the time, permissible under biding

precedent.6

       Here, the trooper drew Greer’s blood under the authority of a

presumptively valid statute and related case law according to its contemporary

reasonable interpretation. Applying the exclusionary rule would not serve the

rule’s purpose of deterring police misconduct.7 For purposes of the Fourth

Amendment, the good-faith exception prevents suppression.




5
  Illinois v. Krull, 480 U.S. 342, 349-57 (1987); Davis v. United States, 131 S. Ct. 2419, 2428-
34 (2011).
6
   Davis, 131 S. Ct. at 2429 (“An officer who conducts a search in reliance on binding
appellate precedent does no more than ac[t] as a reasonable officer would and should act
under the circumstances. The deterrent effect of exclusion in such a case can only be to
discourage the officer from do[ing] his duty. That is not the kind of deterrence the
exclusionary rule seeks to foster.”) (internal quotations and citations omitted).
7
  Id.


                                               4
       Understanding that Texas has a broader exclusionary rule,8 suppression is

not justified here under the Texas rule. Article 38.23(a) prohibits the use of

evidence obtained in violation of the law.9 But not every violation of the law is

subject to exclusion under article 38.23.10 This Court has not applied the plain

meaning of the statute and instead has read into it a requirement that the

violation be related “to the purpose of the exclusionary rule or to the prevention

of the illegal procurement of evidence of crime.”11

       In Miles v. State, this Court held that a person’s violation of traffic laws in

order to make a citizen’s arrest did not implicate article 38.23, noting that “only

those acts which violate a person’s privacy rights or property interests are

subject to the state or federal exclusionary rule.”12

       And in Rocha v. State, this Court held that article 38.23 does not apply to

evidence obtained in violation of the Vienna Convention because the treaty is

intended to protect nations; it does not create enforceable individual rights.13




8
  See Wilson v. State, 311 S.W.3d 452, 458 (Tex. Crim. App. 2010) (In 1925, the Texas
Legislature enacted a state exclusionary rule that was based upon, but broader than, the
federal exclusionary rule.).
9
  TEX. CODE CRIM. PROC. art. 38.23.
10
   See State v. Jackson, 464 S.W.3d 724, 731 (Tex. Crim. App. 2015).
11
   Wilson, 311 S.W. 3d at 459.
12
   Miles v. State, 241 S.W.3d 28, 36, 46 (Tex. Crim. App. 2007).
13
   Rocha v. State, 16 S.W.3d 1, 18-19 (Tex. Crim. App. 2000).


                                               5
       In Jackson v. State, this Court found that there was no police

misconduct.14 The GPS monitoring system placed on the vehicle was expressly

permitted by a Texas statute prior to U.S. v. Jones.15 This Court found that the

officer didn’t purposefully disregard the individual’s Fourth Amendment

rights.16 In her concurrence, Judge Hervey, said,

              The suppression of the evidence in this case will not
              serve the underlying policy reason for the exclusionary
              rule and how the focus of the Brown test shifts
              depending on the facts of each case. The purpose of
              the exclusionary rule is to deter police misconduct,
              which is well documented by this Court and the United
              States Supreme Court.

              The suppression of the evidence in this case would not
              serve to deter future police misconduct because the
              police believed they were acting in accordance with
              the law, which has since been settled.17
       A similar suppression exemption should be recognized here because the

primary purpose of article 38.23 is not furthered when police comply with an

existing, presumptively valid statute and case law interpreting it.




14
   Jackson, 464 S.W.3d at 733.
15
   United States v. Jones, ––– U.S. ––––, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012); Jackson,
464 S.W.3d at 728.
16
   Jackson, 464 S.W.3d at 733.
17
   Id. at 736.


                                           6
                            PRAYER FOR RELIEF

      WHEREFORE, the State of Texas prays that the Criminal Court of Appeals

grant this Petition for Discretionary Review, that the case be set for submission,

and that after submission, this Court reverse the decision of the Court of Appeals.

                                        Respectfully submitted,

                                        JACK ROADY
                                        CRIMINAL DISTRICT ATTORNEY
                                        GALVESTON COUNTY, TEXAS


                                           /s/ Allison Lindblade
                                        ALLISON LINDBLADE
                                        Assistant Criminal District Attorney
                                        State Bar Number 24062850
                                        600 59th Street, Suite 1001
                                        Galveston, Texas 77551
                                        Tel (409)766-2452/Fax (409)765-3261
                                        allison.lindblade@co.galveston.tx.us




                                         7
                           CERTIFICATE OF SERVICE

        The undersigned Attorney for the State certifies a copy of the foregoing
 brief was sent via email, eFile service, or certified mail, return receipt requested, to
 Winston           Cochran,           Post           Office           Box          2945
 League City, Texas 77574, winstoncochran@comcast.net on November 19, 2015.

                                            /s/ Allison Lindblade
                                          ALLISON LINDBLADE
                                          Assistant Criminal District Attorney
                                          Galveston County, Texas



                       CERTIFICATE OF COMPLIANCE

      The undersigned Attorney for the State certifies this brief complies with Tex.

R. App. Proc. 9.4(i)(3), is a computer generated document, and consists of 1,140

words.


                                           /s/ Allison Lindblade
                                         ALLISON LINDBLADE
                                         Assistant Criminal District Attorney
                                         Galveston County, Texas




                                            8
APPENDIX




   9
Opinion issued October 22, 2015




                                     In The

                              ~ourt   of appe~
                                     For The




                              NO.01-14-00033-CR


                     ERIC ALONZO GREER, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee


                    On Appeal from the 56th District Court
                          Galveston County, Texas
                      Trial Court Case No. 12-CR-3333


                       MEMORANDUM OPINION

      A jury convicted Eric Alonzo Greer of felony driving while intoxicated. I

The trial court assessed his punishment at five years' confinement, but suspended

the sentence and placed Greer on community supervision for five years. On appeal,


      See TEX. PENAL CODE ANN. §§ 12.42(a), 49.09(b)(2) (West Supp. 2014).

                                Attachment A
Greer contends that his conviction should be reversed because the trial court erred

by denying his motion to suppress evidence relating to the warrantless blood draw.

We reverse the trial court's judgment and remand for a new trial.

                                   Background

      In 2012, Greer was stopped for a traffic violation and was subsequently

arrested for OWl. Greer refused to perform any field sobriety tests or provide a

breath sample. After confirming that Greer had two prior OWl convictions, OPS

Trooper Guerra transported Greer to a hospital where a warrantless blood draw

was taken pursuant to Texas Transportation Code section 724.0 12(b)(3)(B).

See TEX. TRANSP. CODE ANN. § 724.0l2(b)(3)(B)(West 2011). Guerra did not

attempt to obtain a warrant before transporting Greer to the hospital because he

believed that he had authority to proceed immediately with the blood draw

pursuant to the statute. After the trial court denied his motion to suppress, Greer

proceeded to trial and was convicted of felony OWl. 2 This appeal followed.

                               Motion to Suppress

      In two points of error, Greer argues that the trial court erred by denying his

motion to suppress evidence relating to the warrantless blood draw.




2
      The trial court made no findings of fact or conclusions of law regarding
      Greer's motion to suppress.

                                         2
A.    Standard of Review and Applicable Law

      We review a trial court's denial of a motion to suppress evidence under a

bifurcated standard of review. Turrubiate v. State, 399 S.W.3d 147, 150 (Tex.

Crim. App. 20l3). We give almost total deference to a trial court's determination

of historical facts, especially if those determinations turn on witness credibility or

demeanor, and we review de novo the trial court's application of the law to facts

not based on an evaluation of credibility and demeanor. Gonzales v. State, 369

S.W.3d 851, 854 (Tex. Crim. App. 2012). At a suppression hearing, the trial court

is the sole and exclusive trier of fact and judge of the witnesses' credibility, and it

may choose to believe or disbelieve all or any part of the witnesses'

testimony. Maxwell v. State,73 S.W.3d 278, 281 (Tex. Crim. App. 2002); State v.

Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000).

         When, as here, there are no explicit findings of historical fact, we review the

evidence in the light most favorable to the trial court's ruling, assuming that the

trial court made implicit findings of fact supported in the record that buttress its

ruling. Carmollche v. State, 10 S.W.3d 323, 327- 28 (Tex. Crim. App. 2000). We

will uphold the court's ruling if it is correct under any theory of law applicable to

the case. Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005).

         A blood draw conducted at the direction of a law enforcement officer is a

search      subject   to    the   reasonableness     requirement     of   the    Fourth



                                            3
Amendment. Schmerber v. California,384 U.S. 757, 767, 86 S. Ct. 1826, 1834

(1966); State v. Villarreal, No. PD-0306-14, 2014 WL 6734178, at *9 (Tex. Crim.

App. Nov. 26, 2014) (reh'g granted). A warrantless search of a person is

unreasonable unless it falls within a recognized exception to the warrant

requirement. Villarreal, 2014 WL 6734178, at *8 (citing Missouri v. McNeely, 133

S. Ct. 1552, 1558 (2013»; see also Katz v. United States, 389 U.S. 347,357,88 S.

Ct. 507, 514 (1967) (holding that warrantless search or seizure is per se

unreasonable unless it falls under recognized exception to warrant requirement).

The State carries the burden to prove that an exception to the warrant requirement

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

B.    Warrantless Blood Draw

      In his first point of error, Greer argues that the trial court erred by denying

his motion to suppress because the Transportation Code's mandatory blood draw

provision with its implied consent for a blood draw constitutes an exception to the

warrant requirement and there are no other applicable exceptions. The State argues

that whether the statute and implied consent provision provide an exception to the

requirement is currently "unsettled," and that even if the warrantless blood draw

violated Greer's Fourth Amendment rights, the trial court was nevertheless correct

in refusing to exclude the blood analysis results because the evidence was not




                                         4
subject to exclusion under either the federal exclusionary rule or the Texas

exclusionary rule set out in Texas Code of Criminal Procedure Article 38.23.

         Specifically, the State contends that the federal exclusionary rule does not

bar admission of the blood analysis results in this case because Trooper Guerra

relied in "good faith" on the mandatory blood draw statute and on existing judicial

precedent when he seized Greer's blood sample in 2012. See Davis v. United

States, l31 S. Ct. 2419, 2423- 24 (20 II) (stating that officer's good-faith reliance

on binding case law is exception to federal exclusionary rule); Illinois v. Krull, 480

U.S. 340, 360, 107 S. Ct. 1160, 1I72 (1987) (stating that officer's good faith

reliance on statute is exception to federal exclusionary rule). The State further

contends that we should recognize a similar exception with respect to Article

38.23.

         This Court has previously held that the challenged statutory provisions do

not constitute an exception to the warrant requirement. See Gore v. State, 451

S. W.3d 182, 193 (Tex. App.- Houston [I st Dist.] 2014, pet. filed); State v.

Tercero, 467 S.W.3d 1,4 (Tex. App.- Houston [1st Dist.] 2015, pet. filed). Until

this Court overrules these cases or the Court of Criminal Appeals overturns them,

Gore and Tercero are binding precedent. See Swilley v. McCain, 374 S.W.2d 871,

875 (Tex. 1964).




                                           5
      The Texas exclusionary rule, Article 38.23, is broader in scope and provides

more protection to a suspect than its federal counterpart. See Wilson v. State, 311

S.W.3d 452, 458- 59 (Tex. Crim. App. 2010); see also Weems v. State, 434 S.W.3d

655,666 (Tex. App.- San Antonio 2014, pet. granted); Tercero, 467 S.W.3d at 10

(citing Miles v. State, 241 S.W.3d 28, 34 (Tex. Crim. App. 2007». Even if

evidence is admissible as an exception to the federal rule, it may, nonetheless, still

be excluded by Article 38.23. See Wilson, 3 liS. W.3d at 458 (noting that Article

38.23 "prohibits the use of a much broader category of 'illegally obtained'

evidence" than federal rule).

      Article 38.23 provides that "[n]o evidence obtained ... in violation of any

provisions of the Constitution or laws of the State of Texas, or of the Constitution

or laws of the United States of America, shall be admitted in evidence against the

accused on the trial of any criminal case." TEX. CODE CRIM. PROC. ANN. art.

38.23(a) (West 2005). However, unlike the federal rule, the plain language of

Article 38.23 only recognizes one good faith exception and that is for "a law

enforcement officer acting in objective good faith reliance upon a warrant issued

by a neutral magistrate based on probable cause." TEX. CODE CRIM. PROC. ANN.

art. 38.23(b) (emphasis added). It is undisputed that no such warrant existed in this

case, and Article 38.23's explicit good-faith exception is inapplicable to this case.




                                          6
      The State argues that we should also recognize an exception to Article 38.23

that is similar to the federal "good faith" exception because the evidence in this

case was obtained as a result of a search conducted by an officer relying upon a

presumptively valid statute and case law interpreting it. See Wilson, 311 S. W.3d at

458-59 ("The underlying purpose of both the federal exclusionary rule and article

38.23 is the same: to protect a suspect's privacy, property, and liberty rights

against overzealous law enforcement."). The Court of Criminal Appeals, however,

has recognized that exceptions to the federal exclusionary rule are only applicable

to Article 38.23 if they are consistent with the plain language of the statute.

See Tercero, 467 S.W.3d at 10-11. An exception to Article 38.23 based on an

officer's good faith reliance upon anything other than a warrant is inconsistent with

the plain language of the Texas exclusionary rule. TEX. CODE CRIM. PROC. ANN.

art. 38.23(b} (recognizing exception for officers "acting in objective good faith

reliance upon a warrant ...."); see Tercero, 467 S.W.3d at 10 (declining to expand

Article 38.23's "good faith" exception to include situations where officer had good

faith belief law justified his actions because such expansion was "inconsistent with

the text of article 38.23"); generally Weems, 434 S.W.3d at 666 (rejecting

argument that officer's good faith reliance on mandatory blood draw and implied

consent statutes constituted good faith exception to Article 38.23). Accordingly,

we decline to recognize an exception to Article 38.23 that is based on an officer's



                                           7
good faith reliance upon a statute or judicial precedent because such an exception

is inconsistent with the plain language of the statute. See Tercero, 467 S. W.3d at

10.

e.    Harm

      We review the hann 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 hannless-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 hann analysis of trial court's

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

requires us to reverse the trial court's judgment of conviction unless we detennine

"beyond a reasonable doubt that the error did not contribute to the conviction or

punishment." TEX. R. APP. P. 44.2(a). Here, the jury charge instructed the jurors

that "[aJ person is deemed to be intoxicated within the meaning of the law when he

does not have the nonnal use of his mental or physical faculties by reason of the

introduction of alcohol, a controlled substance, a drug, a dangerous drug, a

combination of two or more of those substances, or any other substance into the

body, or having an alcohol concentration 0[0.08 or more."

      The State presented the testimony of a forensic scientist who testified that

Greer's blood sample contained 0.174 grams of ethanol per 100 milliliters and that



                                         8
this amount of alcohol was over twice the legal limit in Texas. Given the testimony

regarding the taking of Greer's blood sample and his toxicology results and the

jury's instruction that intoxication means, in part, "having an alcohol concentration

of 0.08 or more," we cannot determine beyond a reasonable doubt that the error did

not contribute to Greer's conviction. See Perez v. State, 464 S.W.3d 34, 48 (Tex.

App.- Houston [1st Dist.] 2015, pet. filed); Weems,434 S.W.3d at 667.

Accordingly, we conclude that the warrantless taking of Greer's blood sample did

not fall within a recognized exception to the Fourth Amendment's warrant

requirement, and that this error was harmful.

      We sustain Greer's first point of error. 3

                                     Conclusion

      We reverse the trial court's judgment and remand for a new trial consistent

with this opinion.



                                                Russell Lloyd
                                                Justice


Panel consists of Justices Keyes, Massengale, and Lloyd.

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


3
      In light of our disposition of this appeal, we need not reach Greer's second point
      of error challenging the constitutionality of Transportation Code section
      724.0l2(b).


                                           9
