                               Fourth Court of Appeals
                                      San Antonio, Texas
                                 MEMORANDUM OPINION
                              Nos. 04-14-00389-CR & 04-14-00390-CR

                                       Paul Anthony GARCIA,
                                              Appellant

                                                 v.

                                         The STATE of Texas,
                                               Appellee

                    From the 216th Judicial District Court, Kendall County, Texas
                                   Trial Court Nos. 5397 & 5398
                           Honorable N. Keith Williams, Judge Presiding

Opinion by:       Marialyn Barnard, Justice

Sitting:          Marialyn Barnard, Justice
                  Patricia O. Alvarez, Justice
                  Jason Pulliam, Justice

Delivered and Filed: July 29, 2015

REVERSED AND REMANDED

           A jury convicted appellant Paul Anthony Garcia of reckless bodily injury to a child and

intoxication manslaughter. As to both offenses, the jury made affirmative findings that Garcia

used a deadly weapon — a vehicle. Based on the jury’s recommendations as to punishment, the

trial court imposed a sentence of ten years’ confinement, probated, for the reckless bodily injury

to a child offense, and a sentence of fifteen years’ confinement for the intoxication manslaughter

offense. On appeal, Garcia contends the trial court erred in: (1) denying his motion to suppress;

(2) admitting certain medical records into evidence; and (3) denying his motion for mistrial based
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on the State’s alleged improper jury argument. We agree the trial court erred in denying Garcia’s

motion to suppress, and we reverse and remand for a new trial.

                                          BACKGROUND

       The record shows that a head-on collision occurred in Kendall County. Shortly thereafter,

Boerne police officer Lance DeLeon arrived at the scene of the accident. Two cars were involved

in the accident, a brown pickup truck and white four-door car. Officer DeLeon testified a Hispanic

male, later identified as Garcia, was in the driver’s seat of the pickup truck. According to the

officer, Garcia was conscious, but confused and incoherent. After asking a bystander to keep an

eye on Garcia, Officer DeLeon went to check on a child, subsequently identified as G.B., lying in

a ditch near the white car. According to one of the first bystanders on the scene, Ricardo Carrillo,

he and his friends had removed G.B. from the vehicle. The officer then approached the white car,

which was on its side. When Officer DeLeon looked into the car, he saw the driver, D.B., strapped

into the driver’s seat. The officer testified she was deceased.

       Thereafter, other emergency personnel arrived at the scene, including Texas Department

of Public Safety Trooper Eric Kendrick. G.B. was airlifted to the hospital. Garcia, who was pinned

in his truck, was removed and also airlifted to the hospital. Trooper Kendrick stated he spoke to

Garcia before he was taken to the hospital and Garcia appeared disoriented, lacking “normal use

of his mental faculties.” Trooper Kendrick testified that initially, he did not suspect Garcia was

intoxicated. The trooper stated he was questioning Garcia as part of the “crash investigation.”

Trooper Kendrick testified that during the course of the investigation, he discovered evidence that

led him to believe Garcia was intoxicated at the time of the accident, including: (1) 911 calls

advising of a wrong way driver in the area; (2) the open container of liquor found in Garcia’s

vehicle; (3) the marijuana pipe found in Garcia’s vehicle; (4) Garcia’s red, bloodshot eyes; (5)



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Garcia’s apparent loss of his normal faculties; and (6) Garcia’s inability to answer questions at the

scene.

         As a result of his investigation, Trooper Kendrick, who was still at the scene, contacted

DPS San Antonio Communications and asked that a trooper be sent to the hospital to perform a

mandatory blood draw on Garcia pursuant to section 724.012 of the Texas Transportation Code. 1

The blood draw was taken under the supervision of Trooper Rodney P. Zarate. Admittedly, neither

Trooper Kendrick, Trooper Zarate, nor any other law enforcement officer obtained a warrant prior

to mandating the blood draw. Trooper Kendrick admitted there was nothing that would have

prevented him from obtaining a search warrant. Rather, at the time, a warrantless blood draw was

part of DPS protocol.

         The result of the blood draw showed Garcia’s blood alcohol level to be 0.187 grams per

hundred milliliters of whole blood. The legal limit in Texas is 0.08 grams per hundred milliliters

of whole blood, so Garcia’s sample was more than twice the legal limit. Garcia was ultimately

arrested and charged with reckless bodily injury to a child and intoxication manslaughter.

         Garcia filed a pretrial motion to suppress the results of the blood draw. At the suppression

hearing, Garcia argued, among other things, that the warrantless blood draw was improper under

the Supreme Court’s recent decision in Missouri v. McNeely, __ U.S. __, 133 S.Ct. 1552, 1560–

63 (2013) in which the Court held a categorical or per se rule permitting warrantless blood draws

violates the Fourth Amendment. The trial court denied Garcia’s motion to suppress and the case




1
  Based on the underlying facts, it appears Trooper Kendrick was relying upon section 724.012(b)(1)(A)-(C). See
TEX. TRANSP. CODE ANN. § 724.012(b)(1)(A)-(C) (West 2011). This provision provides that a peace officer shall
require a blood or breath specimen if a driver is arrested for driving while intoxicated after having been involved in
an accident and as a result of the accident, another individual has died or will die, has suffered serious bodily injury,
or has suffered bodily injury and been transported to a hospital or other medical facility for treatment. Id. It is
undisputed that D.B. died as a result of the accident and G.B. suffered injury and was transported to a hospital for
treatment.

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proceeded to trial. At trial, the results of the blood draw were admitted into evidence. Garcia was

ultimately convicted and thereafter perfected this appeal.

                                             ANALYSIS

       As set forth above, Garcia raises several issues challenging his conviction. However,

because we find Garcia’s first issue — the one challenging the trial court’s denial of his motion to

suppress — dispositive, we need not address any of the remaining issues. Accordingly, we proceed

with our analysis of Garcia’s first issue.

       As noted in our recent decision in Huff v. State, this court has analyzed McNeely on several

occasions and held section 724.012(b) is not a valid exception to the Fourth Amendment’s warrant

requirement. No. 04-13-00891-CV, 2015 WL 1731236, at *14 (Tex. App.—San Antonio Apr. 8,

2015, pet. filed) (citing 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)). The Texas Court of

Criminal Appeals rendered a similar decision in Villarreal v. State, No. PD-0306-14, 2014 WL

6734178, at *9–*10 (Tex. Crim. App. Nov. 26, 2014, reh’g granted).

       Recognizing the precedent from the Court of Criminal appeals and this court, the State

apparently concedes the warrantless blood draw cannot be justified pursuant to the provisions of

section 724.012(b) of the Texas Transportation Code. We agree. However, the State argues that

even if the blood draw was impermissible under section 724.012(b), the blood evidence was

properly admitted under the good faith exception to the exclusionary rule. We recently addressed

this issue in Huff, a case involving a fatality accident just as in this case, and held the good faith

exception was inapplicable. 2015 WL 1731236, at *16.

       As we recognized in Huff, although the federal exclusionary rule usually precludes the use

of evidence obtained in violation of the Fourth Amendment, “if law enforcement personnel rely in
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good faith on a statute authorizing a warrantless search, and the statute in question is later found

to be unconstitutional, the evidence seized need not be excluded.” Id. (citing Illinois v. Krull, 480

U.S. 340, 347 (1987)). However, we observed that section 724.012(b) — the mandatory blood

draw statute — does not provide for a warrantless search. Id. (citing TEX. TRANSP. CODE ANN.

§ 724.012(b)). “Although the statute states an officer shall take a blood draw if an individual

suffered serious bodily injury as a result of the DWI, it does not mandate that he do so without a

warrant.” Id. Accordingly, in Huff, we held we could not say the police officer acted in good faith

when he failed to obtain a warrant based on section 724.012(b), which does not dispense with the

warrant requirement. Id. (citing TEX. TRANSP. CODE ANN. § 724.012(b)(1)(B); McNeil, 443

S.W.3d at 303).

       The same is true in this case.        Trooper Kendrick admittedly relied upon section

724.012(b)(1)(A)-(C) when he requested that another trooper mandate a blood draw from Garcia

without first obtaining a warrant. Just as the officer in Huff could not in good faith rely on

Transportation Code when he obtained the blood draw from Huff in the absence of a warrant,

Trooper Kendrick could not rely upon it when he mandated a warrantless blood draw from Garcia.

See id. Accordingly, we hold the good faith exception is inapplicable.

       The State further contends that even if the trial court erred in denying the motion to

suppress and admitting the results of the blood test, Garcia was not harmed. Because the trial

court’s error is one of constitutional magnitude, we must reverse the judgment unless we determine

beyond a reasonable doubt the trial court’s error did not contribute to the conviction. TEX. R. APP.

P. 44.2(a); see Hernandez v. State, 60 S.W.3d 106, 108 (Tex. Crim. App. 2001) (holding harm

analysis for erroneous admission of evidence obtained in violation of Fourth Amendment is Rule

44.2(a)’s constitutional standard). Thus, we must reverse Garcia’s conviction unless we conclude

beyond a reasonable doubt the trial court’s error did not contribute to his conviction, and in doing
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so, we consider: (1) the nature of the error; (2) the extent it was emphasized by the State; (3) the

probable implications of the error; and (4) the weight the jury likely assigned to it during

deliberations. Snowden v. State, 353 S.W.3d 815, 822 (Tex. Crim. App. 2011). These factors are

not exclusive and other factors may be relevant to the analysis. Id. “At bottom, an analysis for

whether a particular constitutional error is harmless should take into account any and every

circumstance apparent in the record that logically informs an appellate determination whether

‘beyond a reasonable doubt [that particular error] did not contribute to the conviction or

punishment.’” Id. (quoting TEX. R. APP. P. 44.2(a)).

       In Weems v. State, we held the trial court’s error in denying Weems’s motion to suppress

was harmful where the jury was instructed regarding the definition of intoxication, which included

“having an alcohol concentration of 0.08 or more,” and there was testimony from a toxicologist

that at the time of the blood draw Weems’s blood alcohol concentration was 0.18, making it likely

that his blood alcohol concentration was 0.24 at the time of the accident. 434 S.W.3d at 667.

       Thereafter, in Huff, we also held the trial court’s erroneous decision denying a motion to

suppress was harmful where the State, during voir dire, referenced the Texas blood alcohol limit

of 0.08 grams per deciliter, a toxicologist testified Huff’s blood sample showed a blood alcohol

concentration of 0.17 grams per deciliter — more than twice the legal limit, the toxicology report

was admitted into evidence, the State referenced Huff’s blood alcohol content during closing

argument — noting it was two times the legal limit, and the jury was instructed about the definition

of “intoxicated,” which included “having an alcohol concentration of .08 or more.” 2015 WL

1731236, at *17–*18.

       Here, as in Huff, the prosecutor referenced the Texas blood alcohol limit of 0.08, stating

that if a person has a blood alcohol concentration of 0.08 or more, he is intoxicated. See id. at *17.

The prosecutor also discussed with the venire “alcohol concentration,” with regard to breath,
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blood, and urine.     After jury selection, during his opening statement, the prosecutor again

referenced the 0.08 limit, advising the jury it was one way for the State to prove intoxication. The

State called James Burris, a forensic toxicologist, as a witness. Mr. Burris described in detail the

procedure used for blood alcohol analysis and specifically stated the standard against which a

sample is tested is 0.08. As to Garcia, Mr. Burris testified his testing showed Garcia’s blood

alcohol content was 0.187 grams per hundred milliliters of whole blood, and therefore, Garcia’s

blood alcohol content was more than twice the legal limit of 0.08 grams per hundred milliliters of

whole blood. The State also introduced, and the trial court admitted into evidence over objection,

State’s Exhibit 11, a copy of Mr. Burris’s report, showing the test results of Garcia’s alcohol level

— 0.0187. And, just as in Huff, the prosecutor noted Garcia’s blood alcohol content during closing

argument, asking the jurors to “[k]eep in mind that the definition of intoxication includes . . . the

.08 — and you heard that [Garcia’s] blood alcohol level was .187, more than two times the legal

limit.” See id. Finally, the jury was instructed as to the definition of “intoxicated,” just as they

were in Huff, which included “having an alcohol concentration of 0.08 or more.” See id.

          Based on our prior decisions in Weems and Huff, as well as the State’s references to

Garcia’s blood alcohol content, the evidence from the toxicologist presented by the State, as well

as the definition of “intoxicated” in the charge, we cannot say beyond a reasonable doubt that the

trial court’s error in denying Garcia’s motion to suppress did not contribute to his conviction. See

TEX. R. APP. P. 44.2(a); Huff, 2015 WL 1731236, at *17–*18; Weems, 434 S.W.3d at 667. We

therefore sustain Garcia’s first issue and hold the trial court’s error entitles Garcia to a new trial.

Based on our holding with regard to Garcia’s first issue, we need not address Garcia’s remaining

issues.




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                                            CONCLUSION

       Based on the foregoing, we sustain Garcia’s challenge to the trial court’s denial of his

motion to suppress and hold the trial court’s ruling constitutes reversible error, entitling Garcia to

a new trial. Accordingly, because the warrantless blood draw violated Garcia’s rights under the

Fourth Amendment, and we cannot say beyond a reasonable doubt that the erroneous admission

of the blood draw results did not contribute to his conviction, we reverse the trial court’s judgment

and remand this matter to the trial court for a new trial.


                                                   Marialyn Barnard, Justice

Do Not Publish




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