                                                                                    ACCEPTED
                                                                                03-15-00153-CR
                                                                                        7525649
                                                                     THIRD COURT OF APPEALS
                                                                                AUSTIN, TEXAS
                                                                          10/23/2015 5:14:02 PM
                                                                              JEFFREY D. KYLE
                                                                                         CLERK
                    No. 03-15-00153-CR
__________________________________________________________
                                                     FILED IN
                                              3rd COURT OF APPEALS
       IN THE COURT OF APPEALS FOR THE THIRD       AUSTIN, TEXAS
                   DISTRICT OF TEXAS          10/23/2015 5:14:02 PM
__________________________________________________________
                                                  JEFFREY D. KYLE
                                                       Clerk
                 THE STATE OF TEXAS, Appellant

                                  v.

            FRANCES ANITA ROBINSON, Appellee
__________________________________________________________

On Appeal from the 207th Judicial District Court of Comal County, Texas
                       Cause No. CR2013-267
           Honorable Bruce Boyer, District Judge Presiding
 __________________________________________________________

                  BRIEF FOR THE STATE
__________________________________________________________

                                                          Jennifer Tharp
                                                Criminal District Attorney

                                                                        By
                                                          Daniel Palmitier
                                                           SBN: 24062934
                                               Assistant District Attorney
                                         150 N. Seguin Avenue, Suite #307
                                                            (830) 221-1300
                                                       Fax (830) 608-2008
                                              New Braunfels, Texas 78130
                                            E-mail: preslj@co.comal.tx.us
                                                    Attorney for the State


                  Oral Argument Is Requested
                     Identity of Parties and Counsel

              Attorney for the Appellant, The State of Texas

AT TRIAL & ON APPEAL
Daniel Palmitier
Assistant District Attorney
COMAL COUNTY CRIMINAL DISTRICT ATTORNEY’S OFFICE
150 N. Seguin Avenue, Suite 307
New Braunfels, Texas 78130
Telephone: (830) 221-1300
Facsimile: (830) 608-2008
Email: palmid@co.comal.tx.us


             Attorney for the Appellee Frances Anita Robinson

AT TRIAL & ON APPEAL
Charles Sullivan
csullivan@lawcsullivan.com
8115 FM 2673
Canyon Lake, Texas 78133
Telephone: (830) 899- 3259
Fax: (210) 579-6448




                                    ii
                                                Table of Contents

Index of Authorities ........................................................................................ iv, v, vi

Statement of the Case.............................................................................................. vii

Statement of the Facts ................................................................................................1

Summary of the Argument.........................................................................................6

Standard of Review ....................................................................................................6

         Villareal does not lead to the conclusion that exigent circumstances did not
         exist in the instant case ....................................................................................7

         Exigent circumstances are to be reviewed on a case by case basis under the
         totality of the circumstances analysis ..............................................................8

         Some appellate courts are failing to apply the totality of the circumstances
         analysis as required by McNeely ...................................................................12

         Other Texas cases dealing with exigency are distinguishable from the facts
         in the instant case ...........................................................................................15

         Trooper Alvarez acted lawfully when he seized a sample of Defendant’s
         blood without a search warrant because exigent circumstances existed given
         the totality of the circumstances analysis in McNeely ..................................20

Prayer .......................................................................................................................23

Certificate of Service ...............................................................................................25

Certificate of Compliance ........................................................................................25




                                                              iii
                                            Index of Authorities

                                                        Cases

Bowman v. State, 05-13-01349-CR, 2015
WL 557205 (Tex. App.—Dallas Feb. 10,
2015, no pet.) (not designated for publication)............................................18, 19, 22

Burcie v. State, 08-13-00212-CR, 2015
WL 2342876, (Tex. App.—El Paso May 14,
2015) (not designated for publication)....................................................................... 7

Douds v. State, 434 S.W.3d 842 (Tex. App.
—Houston [14th Dist.] 2014), petition for
discretionary review granted (Sept. 17,
2014), rev’d, PD-0857-14, 2015 WL
5981121 (Tex. Crim. App. Oct. 14, 2015) .............................................................. 11

Etheridge v. State, 903 S.W.2d 1 (Tex. Crim.
App. 1994), cert. denied 516 U.S. 920,
116 S.Ct. 314, 133 L.Ed.2d 217 (1995)……………………………………………7

Evans v. State, 14-13-00642-CR, 2015
WL 545702 (Tex. App.—Houston [14th
Dist.] Feb. 10, 2015) (not designated for
publication) ..................................................................................................18, 19, 22

Garcia v. State, 14-14-00387-CR, 2015 WL
2250895 (Tex. App.—Houston [14th Dist.]
2015) (not designated for publication).........................................................10, 11, 22

Garcia v. State, 04-14-00002-CR, 2015 WL
5042143 (Tex. App.—San Antonio Aug. 26,
2015, no. pet. h.) (not designated for
publication) ........................................................................................................15, 21



                                                            iv
Guzman v. State, 955 S.W.2d 85 (Tex. Crim.
App. 1997) .......................................................................................................... 7, 23

Huff v. State, 04-13-00891-CR, 2015 WL
1731236 (Tex. App.—San Antonio Apr. 8,
2015, pet. filed) ...........................................................................................17, 18, 21

Jefferson County Drainage Dist. No. 6 v.
Lower Neches Valley Auth., 876 S.W.2d
940, 960 (Tex. App.—Beaumont 1994),
writ denied (Jan. 12, 1995) ...................................................................................... 23

Missouri v. McNeely, 133 S. Ct. 1552 (2013)...................................................passim

Nickerson v State, 645 S.W.2d 888 (Tex.
App.—Dallas 1983), aff’d, 660 S.W.2d
825 (Tex. Crim. App. 1983)………………………………………………………23

State v. Esher, 05-14-00694-CR, 2015 WL
4527715 (Tex. App.—Dallas July 27, 2015,
no. pet. h.) (not designated for publication) .......................................................16, 21

State v. Martinez, 13-14-00117-CR, 2015 WL
1957087 (Tex. App.—Corpus Christi Apr. 30,
2015, no pet.) (not designated for publication)..................................................13, 20

State v. Pimentel, 08-13-00081-CR, 2015 WL
3878079 (Tex. App.—El Paso June 23, 2015,
no pet.) (not designated for publication) ............................................................17, 21

State v. Rodriguez, 13-13-00335-CR, 2015 WL
3799353 (Tex. App.—Corpus Christi June 18,
2015) (not designated for publication), petition
for discretionary review filed (July 2, 2015) ........................................................... 19


                                                            v
State v. Ruiz, 13-13-00507-CR, 2015 WL
5626252 (Tex. App.—Corpus Christi Aug. 27,
2015, no. pet. h.) (not designated for
publication) ............................................................................................12, 13, 20, 22

State v. Tercero, 01-14-00120-CR, 2015 WL
1544519 (Tex. App.—Houston [1st Dist.]
Apr. 2, 2015), reh'g overruled (June 30, 2015),
petition for discretionary review filed (July 7,
2015)……………………………………………………………….………….17, 21

Villarreal v. State, 935 S.W.2d 134 (Tex. Crim.
App. 1996)……………………………………………………………….……….6

State v. Villarreal, PD-0306-14, 2014 WL
6734178 (Tex. Crim. App. Nov. 26, 2014),
reh’g granted (Feb. 25, 2015) .......................................................................1, 2, 6, 7




                                                          vi
                               Statement of the Case

      Appellee was indicted by a grand jury on June 5, 2013 for the charge of

Intoxication Manslaughter. The trial court granted Appellee’s motion to suppress

evidence on February 18, 2015, and the State timely appealed pursuant to article

44.01 of the Code of Criminal Procedure. This Court granted a stay on March 20,

2015. After the Court abated and remanded the case for entry of the trial court’s

findings, the case was reinstated in this Court on July 20, 2015.


                      Statement Regarding Oral Argument

      Appellant respectfully requests oral argument, which may aid the Court’s

decisional process in the instant case.


                                  Issues Presented

      Did the opinion of the Court of Criminal Appeals in State v. Villareal –

which is currently on rehearing – effectively eliminate the exigent circumstances

exception to the general requirement to obtain a warrant?

      Were the facts believed to be true by Trooper Alvarez – and, in fact, found

to be true by the trial court – insufficient to meet the exigent circumstances

exception, despite the fact that the totality of the circumstances showed Alvarez

could not obtain a warrant without the inevitable and substantial loss of evidence?




                                          vii
                               Statement of the Facts

      After a hearing on Defendant’s motion to suppress the trial court made the

following findings of facts:

      1. On March 11, 2012 at 1:04 A.M. Trooper Richard Alvarez was
         dispatched to a vehicle accident on Charter Oak in the Oaks
         Subdivison of Canyon Lake, Texas. He arrived at 1:11 A.M.
      2. Trooper Alvarez found an SUV flipped over on its top. Defendant
         was being extracted by fire and paramedic personnel from the
         driver’s location.
      3. There were a minimum of three officers at the scene.
      4. Trooper Alvarez made observations at the scene, while
         interviewing the driver that led him to believe she had been
         drinking alcohol.
      5. Due to suspected injuries, Defendant was transported by EMS to
         University Hospital in San Antonio.
      6. A passenger in the vehicle was ejected from the vehicle and
         deceased at the scene.
      7. Trooper Alvarez was at the scene for 2 ½ to 3 hours.
      8. Trooper Rodney Zarate was dispatched to the hospital where he
         obtained a warrantless, non-consensual blood draw from the
         defendant.
      9. Comal County implemented a “No Refusal Policy” for law
         enforcement in 2012, where a judge is on call for the purpose of
         obtaining blood draw warrants.
      10.Trooper Alvarez testified that he was the scene investigator, he
         was the only officer who could have obtained a warrant.
      11.Trooper Alvarez testified that he did not believe there were any
         other troopers available at the time of his investigation.
      12.It Generally takes 30-90 minutes to obtain a blood draw warrant by
         fax process in Comal County.
      13.A separate previous blood draw had been performed by hospital
         personnel for medical purposes prior to the law enforcement draw.
         (Clerks Supp Record 8-9)

      The trial court then made the following conclusion of law: “The Court found

that under the criteria of State of Texas vs. David Villareal, the State did not
                                         1
demonstrate exigent circumstances upon which to perform a warrantless blood

draw (id.).

      The trial court then made the additional findings of fact:

      1. Trooper Alvarez testified at the suppression hearing in the instant case.
         This Court finds that Trooper Alvarez was credible, and his testimony
         was likewise credible.
      2. Although this court concluded that under the criteria of State of Texas
         vs. David Villareal, the State did not demonstrate exigent circumstances
         upon to which to perform a warrantless blood draw, this court finds the
         facts were as Trooper Alvarez believed them to be on the night of March
         11, 2012 (II Supp. C.R. at 16-17).

      At the Motion to Suppress hearing, Trooper Rick Alvarez testified that on

March 11, 2012 at approximately 1:04 a.m. he was dispatched out to Charter Oak

(just off FM 2673 on the south side of Canyon Lake) for an accident with a fatality

(I R.R. at 17, 34). He stated there was a heavy fog with light mist that night, and he

arrived to find a smaller suv that had flipped on to its roof (I R.R at 18, 21).

Defendant was still inside the vehicle – upside down in the driver’s seat – and

paramedics were attempting to get her out (I R.R. at 19). The deceased, Teddy

Copeland, was lying next to the suv (I R.R. at 18). Trooper Alvarez briefly met

with Comal County Sherriff’s Deputy Dustin Savage and began to work the

accident scene (I R.R. at 19). Trooper Alvarez testified that he had over 32 years of

law enforcement experience and had investigated over 2000 accidents (I R.R. at

15,16). He began photographing and marking the scene with fluorescent paint

before it was effected by weather (I R.R. at 20). As Trooper Alvarez conducted his
                                          2
investigation another Trooper, Trooper Mata, met with witnesses and interviewed

them on camera inside his patrol car (I R.R. 19,20).

      Trooper Alvarez testified that his department does not have enough

manpower to cover the entire county and that he has never seen more than four

DPS Troopers on duty at a time (I R.R. at 48). Trooper Alvarez knew that one of

the more experienced Troopers was currently at the jail with a suspected DWI

defendant (I R.R. at 47). The only other Trooper on duty, Trooper McWhinney,

had stopped to check on the scene (I R.R. at 43). Trooper McWhinney was the

only other Trooper to patrol the entire county that night, and there was a lot going

on with the local bars being full and the bad weather (I R.R. at 44). There were

Sherriff’s Deputies on scene, but it was their job to direct traffic in order to protect

the accident scene, since the area was at the downside of a small crest in a hill (I

R.R. at 48, 49).

      Trooper Alvarez continued his investigation; he was able to briefly speak

with the Defendant before EMS transported her (I R.R. at 23,24). Defendant told

him that the back end of her vehicle started to slide and she lost control (I R.R. at

24). Trooper Alvarez noticed that Defendant had glassy, blood-shot eyes and

smelled of alcohol (I R.R. at 23, 24). Defendant also admitted to having one drink

earlier in the evening (I R.R. at 24). Paramedics suspected neck, back, and internal

injuries; a helicopter was unable to make the location due to the inclement weather


                                           3
(I R.R. at 19, 22, 24). He stated the paramedics then decided to interrupt the

interview so they could take her via ambulance to University Hospital which was

38-40 miles away (I R.R. at 24, 32). At this point more than two hours had already

elapsed since the accident occurred (I R.R. at 30).

      Trooper Alvarez identified the deceased (whom he personally knew) along

with the Defendant (I R.R. at 25). He then had to complete the initial assessment of

the accident- which took approximately 30 minutes- wait for the justice of the

peace to pronounce the deceased dead, inventory the vehicle, and clear the vehicle

accident scene. (I R.R. at 25, 26). Trooper Alvarez was in charge of the accident

scene and could not leave or stop what he was doing to complete a search warrant

(I R.R. at 26, 27). He believed that it would take him approximately 2.5 to 3 hours

before he could leave the scene (I R.R. at 27). He also testified that he needed to

complete his investigation before he would be able to complete a search warrant

with the requisite probable cause information, and he was the only one at the scene

with that knowledge (I R.R. at 27, 30, 50, 51). Trooper Alvarez did not believe he

could just hand it off to another officer (I R.R. at 30). At the time, Trooper Mata

was busy interviewing witnesses, assisting with the vehicle inventory and helping

locate the deceased’s next of kin (I R.R. at 27). Deputy Savage was able to assist

help find the exact location for the next of kin (I R.R. at 27).




                                           4
      Trooper Alvarez testified that in looking at the totality of the circumstances,

he determined Defendant committed the crime of intoxication manslaughter and he

needed to collect a sample of her blood (I R.R. at 29). He testified that “as the

more time that goes on, the evidence becomes thinner…and, eventually, I’m going

to lose that evidence…you know, her, as we’re trained, you need to try to get to

that defendant as soon as you can in order to obtain a blood sample, because the

faster you get it, the more accurate reading you’re going to get” (I R.R. at 30). He

stated that Comal County had a no refusal policy in effect on March11, 2012 and

there was a judge on call. However, Trooper Alvarez stated that it was in the “baby

stage of contacting judges at the wee hours of the night” (I R.R. at 38, 41).

Although he stated that It could generally take 30 minutes to an hour and a half to

secure a warrant, he also testified that the situation is different when you have a

deceased person and an accident scene (I R.R. at 41, 53.).

      He testified that because of the weather and time of night coupled with the

fact he would have to hand write the warrant and then meet with a judge, it would

have taken an additional three hours to secure a warrant (I R.R. at 31, 32). For

those reasons, Trooper Alvarez contacted DPS Communications which sent

Trooper Zarate to University Hospital in San Antonio to collect a sample of

Defendant’s blood (I R.R. at 32). Trooper Alvarez asked Trooper Zarate to request

a voluntary sample from defendant, but if she refused, to take a mandatory sample


                                         5
since there was a deceased person at the accident scene (I R.R. at 38). A sample of

defendant’s blood was ultimately taken without a warrant at approximately 4:40

a.m. (I R.R. at51).

      At the motion to suppress, Defendant argued that McNeely and Villareal

eliminated the Implied Consent Statute and that where the warrant requirement will

not significantly delay getting a blood sample, there is no exception to not securing

a search warrant (I R.R. at 8, 9, 12). The State argued that the blood was drawn

pursuant to exigent circumstances (I R.R. at 4).



                            Summary of the Argument

      The facts presented to Trooper Alvarez in the early morning hours of March

11, 2012 constituted exigent circumstances such that obtaining a warrant for

Defendant’s blood would have led to the substantial destruction of evidence under

the totality of the circumstances.



                                Standard of Review

      Courts review a trial court’s ruling on a motion to suppress evidence for an

abuse of discretion. Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App.

1996). In this review we give “almost total deference to the trial court’s

determination of historical facts” and review the court’s application of search and


                                         6
seizure law de novo. Guzman v. State, 955 S.W.2d 85, 88–89 (Tex. Crim. App.

1997). The reviewing court may not disturb supported findings of fact absent an

abuse of discretion. See Etheridge v. State, 903 S.W.2d 1, 15 (Tex. Crim.

App.1994), cert. denied 516 U.S. 920, 116 S.Ct. 314, 133 L.Ed.2d 217 (1995).


  Villareal does not lead to the conclusion that exigent circumstances did not
                             exist in the instant case.

      The trial court concluded that “under the criteria of State of Texas vs. David

Villareal, the State did not demonstrate exigent circumstances. (I Supp. CR at 9,

16). At the time the trial court issued its ruling the Court of Criminal Appeals had

granted rehearing in the State of Texas vs. Villareal. See State v. Villarreal, PD-

0306-14, 2014 WL 6734178, (Tex. Crim. App. Nov. 26, 2014), reh’g granted

(Feb. 25, 2015). Notably, Villareal very distinctly states that: “Although McNeely

dealt primarily with exigent circumstances, an exception to the warrant

requirement is not at issue in the present case.” Id. at 9. Villareal does not

otherwise discuss or give any legal reasoning to the topic of exigent circumstances.

See Id. and Burcie v. State, 08-13-00212-CR, 2015 WL 2342876, at *3 (Tex.

App.—El Paso May 14, 2015) (mem. op., not designated for publication), petition

for discretionary review filed (July 17, 2015) (stating only the exigent

circumstances exception was not at issue in Villarreal). The State will nevertheless

continue with the argument that exigent circumstances existed.


                                         7
  Exigent circumstances are to be reviewed on a case-by-case basis under the
                   totality of the circumstances analysis.

      A warrantless search of the person is reasonable only if it falls within a

recognized exception. Missouri v. McNeely, 133 S. Ct. 1552, 1558, (2013)

(quoting, e.g., United States v. Robinson, 414 U.S. 218, 224 (1973)). “One well-

recognized exception… 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.” Id. (quoting: Kentucky v. King, 563

U.S. ––––, ––––, 131 S.Ct. 1849, 1856, 179 L.Ed.2d 865 (2011) (internal quotation

marks and brackets omitted)).

      The court in McNeely recognized that “a variety of circumstances may give

rise to an exigency sufficient to justify a warrantless search” and that “we have

also recognized that in some circumstances law enforcement officers may conduct

a search without a warrant to prevent the imminent destruction of evidence.” Id. at

1558-60. To determine whether a law enforcement officer faced an emergency that

justified acting without a warrant, appellate courts look to the totality of

circumstances and evaluate the facts on a case-by-case basis. See id. This approach

applies to warrantless blood draws in driving while intoxicated investigations. See

id.

      The Court in Mcneely noted that in Schmerber “the warrantless blood test…

was nonetheless permissible because the officer might reasonably have believed
                                        8
that he was confronted with an emergency, in which the delay necessary to obtain a

warrant, under the circumstances, threatened ‘the destruction of evidence.” id. The

Court further observed that in the Schmerber case “time had to be taken to bring

the accused to a hospital and to investigate the scene of the accident, there was no

time to seek out a magistrate and secure a warrant.” McNeely then commented that

“given Schmerber’s special facts, we found that it was appropriate for the police to

act without a warrant.” Missouri v. McNeely, 133 S. Ct. 1552, 1560 (2013). The

Court then recognized that “regardless of the exact elimination rate, it is sufficient

for our purposes to note that because an individual’s alcohol level gradually

declines soon after he stops drinking, a significant delay in testing will negatively

affect the probative value of the results.” Id. at 1560-61. The Court noted that

there will be some inevitable delay in the time that it takes to transport a defendant

to a hospital, and that there are also ways in which jurisdictions may speed up the

warrant process with standard form warrants and the use of fax machines and other

telecommunication technology. See id. at 1562. However, the Court then clarified

that:

         We by no means claim that telecommunications innovations have,
        will, or should eliminate all delay from the warrant-application
        process. Warrants inevitably take some time for police officers or
        prosecutors to complete and for magistrate judges to review.
        Telephonic and electronic warrants may still require officers to follow
        time-consuming formalities designed to create an adequate record,
        …and improvements in communications technology do not guarantee


                                          9
        that a magistrate judge will be available when an officer needs a
        warrant after making a late-night arrest.

Id. The Court concluded with the observation that “longer intervals may raise

questions about the accuracy of the calculation” and “for that reason, exigent

circumstances justifying a warrantless blood sample may arise in the regular course

of law enforcement due to delays from the warrant application process.” Id. at

1563.

        In Garcia v. State – an opinion from the Fourteenth Court of Appeals with

similar facts to the instant case – the State argued exigent circumstances existed

when the defendant could not perform field sobriety tests at the scene because he

was receiving medical treatment, the trooper had to take time to investigate the

traffic fatality at the scene, the defendant’s transfer to the hospital was delayed

because of Life Flight, the trooper did not develop probable cause until he spoke to

appellant at the hospital, and alcohol from the defendant’s blood stream was

dissipating. Garcia v. State, 14-14-00387-CR, 2015 WL 2250895, at *6-8 (Tex.

App.—Houston [14th Dist.] May 12, 2015) (not designated for publication),

petition for discretionary review refused (Sept. 16, 2015). The defendant countered

that the trooper could have asked another officer to obtain a warrant and cited to

Douds, asserting “[t]he relevant inquiry is whether, given the facts and

circumstances known to police at the time, it would be objectively reasonable for

an officer to conclude that taking the time necessary to obtain a warrant before
                                        10
drawing a blood sample would significantly undermine the efficacy of a blood

alcohol test.” See id.; see also Douds v. State 434 S.W.3d 842, 854 (Tex.App.–

Houston [14th Dist.] 2014, pet. granted) (en banc, op. on reh’g). The Garcia

opinion recognized the distinction that:

      The [Douds] court emphasized the fact that the evidence in the case
      did not mention a warrant at all, nor what the arresting officer knew
      about the time needed to obtain a warrant. Because the record below
      reflects Trooper Wyman's knowledge of the requirements for
      obtaining a warrant, we conclude that Douds is distinguishable.

Id. at 7. The specific distinguishing factors for the Garcia court were that three

hours had passed before the trooper developed probable cause and to get a warrant

the trooper would have to type up a warrant, locate a judge, and then return to the

hospital. See id. The trooper in Garcia also testified that the warrant process would

be complicated and lengthy. See id. Ultimately, the court considered the totality of

circumstances and concluded exigent circumstances existed that made obtaining a

warrant impractical. See id.




  Some appellate courts are failing to apply the totality of the circumstances
                     analysis as required by McNeely.

      Relatively few cases have found exigent circumstances in DWI cases since

McNeely. In State v Ruiz, the officer had to investigate an accident scene as well as

locate and identify the defendant who had fled. See State v. Ruiz, 13-13-00507-CR,


                                           11
2015 WL 5626252, at *5 (Tex. App.—Corpus Christi Aug. 27, 2015, no. pet.

h.)(not designated for publication). At the suppression hearing the officer testified

it would have taken three hours to secure a warrant, there were only two other

officers on duty that night, and to take one off duty to help was not feasible. See id.

The officer also believed it would be difficult to locate a magistrate and he would

have had to drive to the magistrate’s house all while blood alcohol evidence was

dissipating. See id. The opinion quoted McNeely, noting that blood alcohol

evidence is different from other destruction of evidence cases where police are

confronted with a ‘now or never’ situation because blood alcohol dissipates

predictably. See id. The opinion also quoted McNeely’s totality of the

circumstances approach but nevertheless concluded that:

      The State produced no evidence to show that destruction of Ruiz's
      blood alcohol was imminent, how it was deprived of an opportunity to
      obtain reliable evidence within a timeframe, or how a more
      expeditious process was not available to locate a magistrate and obtain
      a warrant from the magistrate through alternative means such as via
      telephone rather than physically driving to the magistrate's home. Id.
      at 6.

The dissent in Ruiz stressed that McNeely requires a totality of the circumstances

approach and that there will be situations where exigent circumstances will support

a warrantless blood draw. See id. Applying the totality of the circumstances

approach the dissent believed exigent circumstances existed because it would have




                                          12
taken two to three hours to secure a warrant and removing one of the two officers

on duty to help would be impractical. See id.

      In State v Martinez the court found there were no exigent circumstances

where the officer testified that there was not a magistrate on duty, the officer would

have had to find and wake one up, and then wait for them to travel to the hospital

all while evidence of intoxication was being lost. State v. Martinez, 13-14-00117-

CR, 2015 WL 1957087, at *7 (Tex. App.—Corpus Christi Apr. 30, 2015, no pet.)

The state argued that this additional time coupled with the dissipation of alcohol

was exigent circumstances. Id. The court rejected the State’s argument stating:


       The State has not pointed to any circumstances in this case presenting
      an exigency other than the presence of alcohol in Martinez's blood
      stream. The time between the initial stop and Johnson's arrival at the
      hospital, just under two hours, was not overly long, and there is no
      evidence in the record of how long it might have taken Johnson to
      apply for a warrant. Id.

The court believed this was the exact argument that the Supreme Court rejected in

McNeely. See id.

      And then finally in Cole v State the court found no exigent circumstances

where there was no evidence of the dissipation rate of methamphetamines. See

Cole v. State, 454 S.W.3d 89, 98 (Tex. App.—Texarkana 2014), petition for

discretionary review granted (Apr. 22, 2015). The trial court found that the

following exigent circumstances justified the warrantless blood draw: (1) major


                                         13
intersections had to be closed and traffic rerouted; (2) numerous officers were at

the scene, each with a specific job to do, and none could be spared to seek a

warrant; (3) due to his role, the investigating officer had to remain at the scene; (4)

the magnitude of the accident, i.e., that it involved a death, a fire, a large debris

field, and traffic issues; (5) the defendant’s health and safety and concern that the

hospital could give him additional medications; and (6) the time needed to get the

scene cleared. id. Citing Mcneely, the court acknowledged that an officer can take

steps to secure a warrant while the defendant is being transported to the hospital

and technological advances since Schmerber can help speed up the warrant

process. See id. at 99. The court also believed the the exigent circumstances

analysis should not focus on the delay of the accident investigation but rather on

the delay to the warrant process. See id at 100. The court further emphasized that

“To ensure that the exigencies of the situation make dispensing with the

constitutional requirement of a warrant imperative, courts must focus on whether

the State showed that police could not reasonably obtain a warrant, not on whether

it showed how severe the accident was.” Id. The court then hypothesized that

exigent circumstances might arise where “a lone officer discovers an apparently

intoxicated driver during a midnight traffic stop not involving any accident, if the

delay necessary to obtain a warrant could be substantial because there is no

magistrate available”. but not where “an officer’s investigation of a serious


                                          14
accident lasts for an hour, where the availability of another officer 15 minutes into

the investigation, or the presence of medical personnel to treat injuries, could

significantly reduce the delay necessary to obtain a warrant.” See id. at 100-01.

Additionally, in concluding that there were no exigent circumstances the court

noted that “there were about one dozen police officers on the scene in this case,

and this accident happened as one group of officers’ shift was ending and another

group’s was beginning” And “There [was] no indication that officers not on the

scene were unavailable to help obtain a warrant.” Id. at 103.



Other Texas cases dealing with exigency are distinguishable from the facts in
                              the instant case.

      In Garcia v State the Fourth Court of Appeals ruled it could not find exigent

circumstances where “the testimony sheds no light on whether the officers were

presented with exigent circumstances”. Garcia v. State, 04-14-00002-CR, 2015

WL 5042143, at *4 (Tex. App.—San Antonio Aug. 26, 2015, no. pet. h.)(not

designated for publication). During trial, none of the officers involved were asked

about exigent circumstances to justify securing Garcia’s blood without a warrant.

Id. quoting Weems, the court reasoned “the record ... does not reflect other factors

that would be relevant under the totality of the circumstances, including

‘procedures in place for obtaining a warrant or the availability of a magistrate

judge’ and ‘the practical problems of obtaining a warrant within a time frame that
                                         15
still preserves the opportunity to obtain reliable evidence.’ ” 434 S.W.3d at 666

(citing McNeely, 133 S.Ct. at 1568).

      In State v Esher officers were dispatched to an accident scene and were able

to conduct field sobriety tests on the defendant. State v. Esher, 05-14-00694-CR,

2015 WL 4527715, at *5 (Tex. App.—Dallas July 27, 2015, no. pet. h.)(not

designated for publication). When the defendant refused to provide a sample of

breath, she was transported to the hospital for a mandatory blood draw. Id. The

court ruled that the state did not present exigent circumstances because the only

testimony presented at the suppression hearing was the potential dissipation of

alcohol from the defendant’s blood stream. See id. The court sited to McNeely and

concluded that “the State [did] not identify other factors that would suggest the

officers faced an emergency or unusual delay in securing a warrant. See McNeely,

133 S.Ct. at 1567.” Id.

      In Pimentel v State the court cited McNeely for the proposition that “the

natural dissipation of alcohol in the bloodstream does not constitute an exigency in

every case sufficient to justify conducting a blood test without a warrant. McNeely,

133 S.Ct. at 1568.” State v. Pimentel, 08-13-00081-CR, 2015 WL 3878079, at *3

(Tex. App.—El Paso June 23, 2015, no pet.)(not designated for publication). The

court noted that the record was completely devoid of important facts such as how

long the defendant remained at the accident scene, how long it took to transport


                                        16
him to the hospital, what time his blood was drawn, or how long it typically takes

to obtain a search warrant in cases like this. See id. “Because the State failed to

establish that the delay in waiting for a warrant would significantly undermine the

efficacy of the search, it failed to prove that exigent circumstances justified the

warrantless search of Pimentel’s person.” Id.

      In two similar cases the courts found no exigent circumstances where the

officer specifically testified there were no exigent circumstances. See Huff v. State,

04-13-00891-CR, 2015 WL 1731236, at *15 (Tex. App.—San Antonio Apr. 8,

2015), petition for discretionary review filed (July 9, 2015) and State v. Tercero,

01-14-00120-CR, 2015 WL 1544519, at *1 (Tex. App.—Houston [1st Dist.] Apr.

2, 2015), reh'g overruled (June 30, 2015), petition for discretionary review filed

(July 7, 2015). In Huff the trial court had stated there are “full-time 24/7

magistrates available, trust me, I’ve signed many warrants at 3:00 o'clock in the

morning at my house.” Id. When specifically asked the officer in Huff admitted

there were no exigent circumstances. See id. The trial court also specifically found

that it believed the officer did not secure a warrant because he believed he did not

have to. See id.

      Then in a case involving a major accident the court ruled an accident

investigation by itself is not an exigent circumstance where the officer testified he

had time to secure a warrant. See Evans v. State, 14-13-00642-CR, 2015 WL


                                         17
545702, at *5-6 (Tex. App.—Houston [14th Dist.] Feb. 10, 2015), petition for

discretionary review filed (Apr. 21, 2015)(not designated for publication). In Evans

“the record [did] not reflect any facts to support the State’s argument that obtaining

a warrant would have significantly delayed the blood draw process.”Id. There were

also two Fort Bend County deputies and one DPS trooper at the scene assisting in

the investigation who could have helped secure a warrant. Id. The court found the

fact that there was not a magistrate on call 24 hours a day unpersuasive . See id.

      In another vehicle accident case the court found no exigent circumstances

where the record did not demonstrate how the accident investigation made it

impractical to get a warrant. See Bowman v. State, 05-13-01349-CR, 2015 WL

557205, at *11 (Tex. App.—Dallas Feb. 10, 2015, no pet.)(not designated for

publication). Here the court, citing Mcneely, found that the officer had remote

technology to access form warrants and such technology was relevant to assessing

exigency. See id. Just like in Evans the Bowman court found there is no per se

exigency rule for accident investigations. See id. and Bowman. Quoting Douds, the

court noted “[t]he State should be responsible for asking officers who handle

accidents to explain the demands of a particular investigation that made it

impractical for police to obtain a warrant before any blood alcohol evidence

dissipated.” Id. (quoting 434 S.W.3d at 854). The court ultimately found that the

record did not demonstrate that the accident investigation described gave rise to


                                         18
any such demands.” Id. Specifically, the court noted “that the record before us

[does not] contain any evidence that the extra time that would necessarily have

been expended to obtain a warrant in this case threatened that opportunity”. Id.

      Another court did not find exigent circumstances when it found the officer

relied solely on Chapter 724 of the Transportation Code. See State v. Rodriguez,

13-13-00335-CR, 2015 WL 3799353, at *7 (Tex. App.—Corpus Christi June 18,

2015), petition for discretionary review filed (July 2, 2015) (not designated for

publication). Rodriguez found that “there [was] no evidence that Officer Jordan

could not have taken steps to obtain a warrant because he never even considered

obtaining one.” Id. The court quoted McNeely and emphasized “that if an officer

can take steps to secure a warrant while the suspect is being transported to a

hospital by another officer, there would be no plausible justification for an

exception to the warrant requirement. McNeely, 133 S.Ct. at 1561.” Id.




Trooper Alvarez acted lawfully when he seized a sample of Defendant’s blood
 without a search warrant because exigent circumstances existed given the
             totality of the circumstances analysis in McNeely.
      McNeely did not abolish exigent circumstances in DWI blood draw cases but

rather limited its ruling specifically to the fact that the dissipation of alcohol in a

DWI suspects blood stream by itself it not a per se exigent circumstance. See

generally McNeely, 133 S. Ct. 1552. It appears some appellate courts in Texas

                                          19
have not taken the common-sense approach of looking to the totality of

circumstances on a case-by-case basis. See Ruiz, 2015 WL 5626252 at *5;

Martinez, 2015 WL 1957087 at *7; Cole, 454 S.W.3d at 98. McNeely noted there

will be some inevitable delay in transporting a defendant to a hospital and that

technology and form warrants can speed up the process. See 133 S. Ct. at 1562.

McNeely did not go onto to say that these factors will completely negate exigency.

See id.

      Looking at the facts in the instant cases (and keeping in mind that the trial

court made specific findings that Trooper Alvarez was credible and the facts he

testified to were true), the following facts stand out: (1) Trooper Alvarez arrived to

an accident scene with a deceased victim at approximately 1:04 A.M., (2) when he

arrived the defendant was still hanging upside down in the driver’s seat with

paramedics attending to her, (3) Trooper Alvarez was only briefly able to speak

with her in the back of an ambulance before she was taken to University Hospital

40 miles away for her injuries, (4) more than two hours had elapsed since the

accident occurred and Trooper Alvarez believed it would take two and a half to

three hours to complete his investigation and to secure a warrant, (5) there was not

another officer available to help with the warrant process, and (6) blood alcohol

evidence necessary to the crime of intoxication manslaughter was being

metabolized and destroyed.


                                         20
      The facts in the instant case are distinguishable from other cases holding

there were no exigent circumstances. See Garcia v. State, 2015 WL 5042143 at *4;

Esher, 2015 WL 4527715 at *5; Pimentel, 2015 WL 3878079 at *3; Huff v.

State, 2015 WL 1731236 at *15; and Tercero, 2015 WL 1544519 at *1. Trooper

Alvarez testified that if he did not get a sample of the defendant’s blood quickly,

the results would be less accurate or eventually be lost altogether. See Ruiz, 2015

WL 5626252 at *5. Trooper Alvarez also testified to the facts as they were that

evening, and specifically how they would prevent him from obtaining a warrant in

time to prevent the loss of evidence. Compare with supra. Despite accident

investigations not being a per se exigency, they are still a factor to consider in the

totality of the circumstances in assessing exigency. See Burks v. State, 454 S.W.3d

705, 708-09 (Tex. App.—Fort Worth 2015), petition for discretionary review filed

(Mar. 13, 2015); Evans, 2015 WL 545702 at *5, *6; Bowman, 2015

WL 557205 at *11. Trooper Alvarez testified that this was not the typical situation

where he could get a warrant in 30 to 90 minutes due to the death, accident scene,

and weather.

      The facts in the instant case are analogues to those presented in the 14th

District’s opinion in Garcia. See 2015 WL 2250895 at *7. Like the Trooper in

Garcia, Trooper Alvarez was faced with an accident scene and fatality he had to

investigate, several hours passed before probable cause could be determined, and


                                         21
the warrant process would be lengthy and complicated. Applying the same

standard in Garcia and McNeely it would have been impractical for Trooper

Alvarez to obtain a warrant that evening. See id.; see also McNeely, 133 S. Ct.

1552. This is the exact situation the Supreme Court contemplated in McNeely

where “a significant delay in testing will negatively affect the probative value of

the results.” See McNeely, 133 S. Ct. at 1560-61. Because “longer intervals may

raise questions about the accuracy of the calculation” Trooper Alvarez was acting

lawfully per the exigent circumstances exception to the warrant requirement when

he ordered the seizure of a sample of the defendant’s blood where more than two

hours had passed before he began his investigation and the warrant process would

take an additional two and a half to three hours. See id. at 1563. Given the potential

of five hours passing since the time of the crime of intoxication manslaughter

being committed, not only was it impractical for Trooper Alvarez to try and obtain

a warrant that evening but it would have flown in the face of McNeely and the

exigent circumstances doctrine.

      Despite the fact that Trooper Alvarez did not explicitly use the phrase

“exigent circumstances,” his testimony clearly indicated he believed there were

exigent circumstances. The trial court found that Trooper Alvarez was credible,

and the facts were as Alvarez believed them to be. Furthermore, even an officer’s

testimony that he believed his search was valid under one theory of law would not


                                         22
preclude an appellate court from relying another valid theory within the record.

See Nickerson v State, 645 S.W.2d 888, 891 (Tex. App.—Dallas 1983), aff’d, 660

S.W.2d 825 (Tex. Crim. App. 1983). “Just as the appellate court may look at more

than just the evidence on the motion to suppress to uphold a search, similarly an

appellate court may look beyond the subjective statements of the officer to find the

probable cause and exigent circumstances to justify a search.” Id. In this case, the

State clearly presented the exigent circumstances exception to the trial court at the

hearing.

      This Court should give almost total deference to the trial court’s

determination of historical facts. Guzman, 955 S.W.2d at 88–89. Notably, the

factual determination in this case was actually in the State’s favor – the trial court

found that Trooper Alvarez’s testimony on the totality of the facts and

circumstances was true. See also Jefferson County Drainage Dist. No. 6 v. Lower

Neches Valley Auth., 876 S.W.2d 940, 960 (Tex. App.—Beaumont 1994), writ

denied (Jan. 12, 1995) (“Under well-established decisional precedent, any conflict

between the original findings and the amended findings are resolved definitely in

favor of the later findings”). Accordingly, this Court’s resolution of the issue in

this case – the application of search and seizure law to the facts found to be true –

will be de novo. Guzman, 955 S.W.2d at 88–89. Because the totality of the




                                         23
circumstances in the instant case demonstrate exigency, this Court should reverse

the trial court’s order suppressing the evidence.




                                       Prayer

      Wherefore, premises considered, Appellee prays that this Honorable Court

of Appeals reverse the trial court’s order suppressing the blood evidence.

Alternatively, the State prays that this Honorable Court remand this case for

reconsideration of the motion to suppress – including a determination of whether

the facts of the case constituted exigent circumstances – in light of The Court of

Criminal Appeals’ rehearing in Villareal, upon which the trial court relied.

                                                                     Jennifer Tharp
                                                          Criminal District Attorney

                                                                                  By

                                                                 /s/ Daniel Palmitier
                                                                   Daniel Palmitier
                                                                     SBN: 24062934
                                                          Assistant District Attorney
                                                    150 N. Seguin Avenue, Ste. #307
                                                        New Braunfels, Texas 78130
                                                                     (830) 221-1300
                                                                 Fax (830) 608-2008
                                                     E-mail: palmid@co.comal.tx.us
                                                               Attorney for the State




                                         24
                              Certificate of Service

      I, Daniel Palmitier, attorney for the State of Texas, Appellant, hereby certify
that a true and correct copy of this Brief for the State has been delivered to
Appellee FRANCES ANITA ROBINSON’S attorney of record in this matter:

      Mr. Charles Sullivan
      csullivan@lawcsullivan.com
      308 Campbell Dr.
      Canyon Lake, TX 78133
      Lead Attorney for Appellee on Appeal

By electronically sending it through efile.txcourts.gov service, this 23rd day of
October, 2015.

                                                                  /s/ Daniel Palmitier
                                                                    Daniel Palmitier



                           Certificate of Compliance


       I hereby certify, pursuant to Rule 9.4(i)(2)(B) and Rule 9.4(i)(3) of the Texas
Rules of Appellate procedure that the instant brief is computer-generated using
Microsoft Word and said computer program has identified that there are 6,207
words within the portions of this brief required to be counted by Rule 9.4(i)(1) &
(2) of the Texas Rules of Appellate Procedure.
       The document was prepared in proportionally-spaced typeface using Times
New Roman 14 for text and Times New Roman 12 for footnotes.

                                                                  /s/ Daniel Palmitier
                                                                    Daniel Palmitier




                                          25
