                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-14-00077-CR
                             NO. 02-14-00078-CR


WALTER TENDAI CHIDYAUSIKU                                          APPELLANT

                                       V.

THE STATE OF TEXAS                                                      STATE


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      FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY
               TRIAL COURT NOS. 1264242R, 1264243R

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                         CONCURRING OPINION

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      I agree that the trial court’s judgments must be reversed and remanded for

further, consistent proceedings. I write separately to clarify the parameters of

this court’s holdings.

      This case involves a mandatory blood draw under transportation code

section 724.012(b)(1), which implies consent for a breath or blood sample if a

suspected impaired driver is in an accident and someone other than the impaired
driver “has suffered bodily injury and been transported to a hospital . . . for

medical treatment.” Tex. Transp. Code Ann. § 724.012(b)(1)(C) (West 2011).

The court of criminal appeals, in a case involving section 724.012(b)(3), recently

held that “a nonconsensual search of a DWI suspect’s blood conducted pursuant

to   the     mandatory-blood-draw     and       implied-consent    provisions      in   the

Transportation Code, when undertaken in the absence of a warrant or any

applicable    exception   to   the   warrant     requirement,     violates   the    Fourth

Amendment.” State v. Villarreal, No. PD-0306-14, 2014 WL 6734178, at *21

(Tex. Crim. App. Nov. 26, 2014) (5–4 opinion). Thus, the warrantless blood draw

under section 724.012(b)(1) in this case violated the Fourth Amendment and

must be suppressed in the absence of any exception to the warrant requirement.

      I agree that there are no exceptions to the warrant requirement in this case

because the record reveals (1) no exigency; 1 (2) that Appellant did not consent to

the search; and (3) that the automobile, search-incident-to-arrest, and special-

needs exceptions are inapplicable. See id. at *10–16; Lloyd v. State, No. 05-13-

01004-CR, 2014 WL 7249747, at *3 (Tex. App.—Dallas Dec. 22, 2014, no pet.

h.). However, the police officers at the time of the blood draw did nothing wrong

by relying on a then-valid statute to compel a blood specimen without a warrant


      1
       The opinion states that the “only possible exigency suggested by the
record is the natural dissipation of alcohol in Appellant’s body.” I disagree to the
extent this statement could be construed as a holding that dissipation is the only
arguable exigency in this type of case. I agree, however, that the record in this
case shows no exigency sufficient to justify a warrantless search.


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when faced with two people who were severely injured after Appellant was in a

wreck with them, one of whom—a ten-year-old boy—later died. Similarly, the

trial court understandably held that section 724.012(b)(1) specifically authorized

the blood draw and was, in effect, an exception to the warrant requirement.

Whether or not the police had a “commendable . . . protocol” in place to secure a

warrant as stated by the opinion, the police justifiably relied on an authorizing

statute to compel the warrantless search. I recognize that there is no good-faith

exception to 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. h.), but I

believe it imperative to avoid any implication that the police officers or the trial

court in this case were willfully or knowingly disregarding constitutional

requirements. In any event, the State failed to prove under the totality of the

circumstances that the warrantless search was nevertheless reasonable based

on an established exception to the warrant requirement. See Amador v. State,

221 S.W.3d 666, 672–73 (Tex. Crim. App. 2006) (holding once defendant

establishes a search or seizure occurred without a warrant and rebuts the

presumption of proper police conduct, the burden shifts to the State to prove the

reasonableness of the search or seizure).

      Having found error, the opinion correctly proceeds to a harm analysis

under rule 44.2(a). Tex. R. App. P. 44.2(a). Neither Appellant nor the State

briefed whether any harm flowed from the constitutional error; thus, it is unclear

whether Appellant argues that the error contributed to his decision to plead guilty,


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to his punishment as assessed by the jury, or both. But the court of criminal

appeals has indicated that even though the blood-test results were admitted only

during punishment, the harm from the trial court’s denial of appellant’s motion to

suppress, if any, is deeply connected to Appellant’s decision to plead guilty. See

Holmes v. State, 323 S.W.3d 163, 172–73 (Tex. Crim. App. 2009); see also

Sanchez v. State, 98 S.W.3d 349, 357–58 (Tex. App.—Houston [1st Dist.] 2003,

pet. ref’d). Thus, any harm arising from the trial court’s denial should be looked

at relative to Appellant’s decision to plead guilty. See 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) (in an appeal from DWI conviction

where defendant pleaded guilty and jury assessed punishment and after

concluding warrantless blood draw violated Fourth Amendment, appellate court

considered “whether the trial court’s admission of the blood test evidence

contributed to Appellant’s decision to plead ‘guilty’”); Forsyth v. State, 438

S.W.3d 216, 225 (Tex. App.—Eastland 2014, pet. ref’d) (same holding in case

where defendant pleaded guilty and trial court assessed punishment);

Jaganathan v. State, 438 S.W.3d 823, 828–29 (Tex. App.—Houston [14th Dist.]

2014, pet. granted) (same). But see Noriega v. State, No. 04-13-00744-CR,

2014 WL 7339735, at *2 (Tex. App.—San Antonio Dec. 23, 2014, no pet. h.)

(mem. op., not designated for publication) (concluding defendant who pleaded

guilty to DWI and had jury assess punishment was not harmed by admission at

punishment of blood-test results obtained without a warrant because “the jury


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would [not] have assigned much weight to the statutory blood draw evidence in

view of the other evidence of the extent of defendant’s intoxication”).

      Under rule 44.2(a), we must reverse the trial court’s judgments unless we

can determine beyond a reasonable doubt that the error did not contribute to

Appellant’s decision to plead guilty. In other words, we must conclude beyond a

reasonable doubt that the trial court’s failure to suppress the blood-test results

did not influence Appellant’s decision to plead guilty. Forsyth, 438 S.W.3d at

225. The record shows that after the trial court announced that it was denying

the motions to suppress, Appellant’s counsel stated that it was Appellant’s

“intention . . . to enter pleas of guilty” and that he specifically intended to preserve

his right to appeal the trial court’s suppression rulings. Counsel further stated

that Appellant would “enter a plea to this now” to “not fuss about things that aren’t

in dispute” and would take up the “legal issue” later on appeal. I believe these

statements by counsel preclude a finding that Appellant’s decision to plead guilty

was not influenced by the trial court’s denials of his motions to suppress. See

Gentry, 2014 WL 4215544, at *4; Jaganathan, 438 S.W.3d at 829.

      With these comments, I concur in the court’s reversal of the trial court’s

judgments and remand for further, consistent proceedings.




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                                   /s/ Lee Gabriel
                                   LEE GABRIEL
                                   JUSTICE

LIVINGSTON, C.J., joins.

PUBLISH

DELIVERED: February 19, 2015




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