                                                                              PD-0731-15
                                                             COURT OF CRIMINAL APPEALS
                                                                             AUSTIN, TEXAS
                                                             Transmitted 7/7/2015 9:07:44 AM
                                                               Accepted 7/7/2015 4:44:29 PM
                                                                              ABEL ACOSTA
                                                                                      CLERK
                              No. PD 0731-15

                                IN THE
                  COURT OF CRIMINAL APPEALS OF TEXAS
                           AT AUSTIN, TEXAS


                       HENRY WILSON RICHARDS,
                              Appellant

                                     vs.

                          THE STATE OF TEXAS,
                                Appellee


Appellee is seeking discretionary review of an opinion from the Fifth District
Court of Appeals at Dallas County in Cause No. 05-14-00075-CR, reversing
the judgment of the 282nd Judicial District Court of Dallas County in Cause
No. F12-63948


              STATE‟S PETITION FOR DISCRETIONARY REVIEW



                                      Counsel of Record:

SUSAN HAWK                            PATRICIA POPPOFF NOBLE
CRIMINAL DISTRICT ATTORNEY            ASSISTANT DISTRICT ATTORNEY
DALLAS COUNTY, TEXAS                  STATE BAR NO. 15051250
                                      FRANK CROWLEY COURTS BLDG
                                      133 N. RIVERFRONT BLVD,LB-19
                                      DALLAS, TEXAS 75207-4399
   July 7, 2015                       (214) 653-3634
                                      pnoble@dallascounty.org

                      Attorneys for the State of Texas
            IDENTITY OF JUDGE, PARTIES, and COUNSEL

Trial Court Judge:
The Honorable Andy Chatham, Judge Presiding
282nd Judicial District Court of Dallas County, Texas


Parties to the Judgment:
Henry Wilson Richards, Appellant/Respondent
The State of Texas , Appellee/Petitioner through Dallas County Criminal
District Attorneys, Craig Watkins, Dallas County Criminal District
Attorney (at time of trial), and Susan Hawk, Dallas County Criminal
District Attorney (at time of appeal), 133 N. Riverfront Blvd., LB 19,
Dallas, Texas 75207-4399, phone#214-653-3600.


Trial and Appellate Counsel:
Michael Mowla, Attorney for Appellant/Respondent on appeal, 445 E. FM
1382 #3-718, Cedar Hill, Texas 75104, phone#972-795-2401, email:
Michael@mowlalaw.com.


Stanley Mays, Attorney for Defendant at trial, 2516 MLK Blvd., Dallas,
Texas 75215, phone#214-421-9000.


Joe Flores, Dallas County Assistant District Attorney representing the
State of Texas at trial, 133 N. Riverfront Blvd., LB 19, Dallas, Texas
75207-4399, phone#214-653-3600.


Patricia Poppoff Noble, Dallas County Assistant District Attorney
representing the State of Texas on appeal, 133 N. Riverfront Blvd., LB 19,
Dallas, Texas 75207-4399, phone#214-653-3600.
                  AMENDED TABLE OF CONTENTS


INDEX OF AUTHORITIES…………………………………………………………iii

STATEMENT REGARDING ORAL ARGUMENT………………………………..1

STATEMENT OF THE CASE……………………………………………………….1

STATEMENT OF PROCEDURAL HISTORY……………………………………..1

QUESTIONS PRESENTED FOR REVIEW……………………………………….2

 1. Does an argument in the trial court that the United States Supreme
    Court has found the Texas statute authorizing a warrantless
    nonconsensual blood draw is unconstitutional preserve for review an
    argument that the search in this case was unreasonable under the
    Fourth Amendment?

 2. Did the court of appeals err when it reversed a conviction without
    addressing the State’s preservation argument?



 3. Did the court of appeals err by relying on a nonfinal opinion from this
    Court which is not a part of the jurisprudence of this State to reverse
    the conviction?

ARGUMENT……………………………………………………………………………3

PRAYER……………………………………………………………………………….16
CERTIFICATE OF SERVICE AND WORD COUNT ………………………….17
                                     INDEX OF AUTHORITIES



Cases

Brown v. State,
  807 S.W.2d 615 (Tex. App. – Houston [14th Dist.] 1991, no pet.) ........... 13

Cook v. State,
  832 S.W.2d 62 (Tex. App. – Dallas 1992, no pet.) ....................................... 14

Garcia v. State,
 833 S.W.2d 564 (Tex. App. – Dallas 1992), aff’d, 868 S.W.2d 337 (Tex.
 Crim. App. 1993) ...................................................................................................... 14

Gipson v. State,
  383 S.W.3d 152 (Tex. Crim. App. 2014) ................................................... 10, 11

Henderson v. State,
 822 S.W.2d 171 (Tex. App. – Houston [1st Dist.] 1991, no pet.) .............. 13

Leal v. State,
  456 S.W.3d 567 (Tex. Crim. App. 2015) ............................................................ 8

Leal v. State,
  No. 14-13-00208-CR, 2015 Tex. App. LEXIS 6460 (Tex. App. – Houston
  [14th Dist.] June 25, 2015) (op. on remand) (not yet reported) .................. 9

Lloyd v. State,
   453 S.W.3d 544 (Tex. App. – Dallas 2014, pet. ref‟d)..................... 12, 15, 16

Lyssy v. State,
  429 S.W.3d 37 (Tex. App. – Houston [1st Dist.] 2014, no pet.) ................. 7

Mayo v. State,
 17 S.W.3d 291 (Tex. App. – Fort Worth 2000, pet. ref‟d) .......................... 14

Meadoux v. State,
  325 S.W.3d 189 (Tex. Crim. App. 2010) ......................................................... 11

Missouri v. McNeely,
  __U.S.__, 133 S.Ct. 1552 (2013) .............................................................. 4, 12, 15


                                                            iii
Perez v. State,
  No. 01-12-01001-CR, __ S.W.3d __, 2015 Tex. App. LEXIS 2492 (Tex.
  App. – Houston [1st Dist.] Mar. 17, 2015,no pet. h.) (op. on reh‟g) ........... 7

Richards v. State,
   No. 05-14-00075-CR, 2015 Tex. App. LEXIS 5129 (Tex. App. – Dallas
  May 20, 2015, pet. filed) (mem. op., not designated for publication) . 2, 4,
  6

State v. Villarreal,
   No. PD-0306-14, _ S.W.3d _ 2014 WL 6734178 (Tex. Crim. App. Nov.
  26, 2014)................................................................................................... 12, 13, 14, 15

Vasquez v. State,
  814 S.W.2d 773 (Tex. App. – Houston [14th Dist.] 1991, pet. ref‟d) ...... 13

Yeager v. State,
  727 S.W.2d 280 (Tex. Crim. App. 1987) ......................................................... 13

Statutes

Tex. Transp. Code Ann. §724.012 (West 2011) ......................................... 4, 7, 12

Rules

Rule 66.3 (f) ................................................................................................................... 11

Tex. R. App. P. 47.1 .................................................................................................... 10

Tex. R. App. P. 66.3 (a) .............................................................................................. 11

Tex. R. App. P. 66.3 (b) .............................................................................................. 16

TEX. R. APP. P. 68 ......................................................................................................... 1




                                                                iv
TO THE HONORABLE COURT OF CRIMINAL APPEALS:

       The State of Texas submits this petition for discretionary

review pursuant to TEX. R. APP. P. 68, and would show the

following:

             STATEMENT REGARDING ORAL ARGUMENT

       If discretionary review is granted, the State will waive oral

argument, unless this Honorable Court desires to have the parties

deliver oral argument.

                     STATEMENT OF THE CASE

       Henry Wilson Richards (hereinafter, “Appellant”) was convicted

of driving and operating a motor vehicle in a public place while

intoxicated and having been twice before convicted of driving a

motor vehicle while intoxicated. (CR: 35).

         STATEMENT REGARDING PROCEDURAL HISTORY

       After the trial court overruled his motion to suppress evidence,

on January 17, 2014, appellant pleaded guilty to driving while

intoxicated (DWI), and the trial court sentenced him to ten years‟

confinement, probated for five years, and a $2000 fine.       (CR: 35,

44).   Appellant appealed his conviction by raising a single issue

challenging the denial of the motion to suppress alleging the

                                   1
warrantless    nonconsensual      blood    draw     constituted    an

unconstitutional search and seizure. On May 20, 2015, the Court

of Appeals for the Fifth District of Texas at Dallas delivered an

unpublished opinion reversing the judgment and remanding the

cause for further proceedings consistent with its opinion finding the

trial court erred in its denial of the motion to suppress. Richards v.

State, No. 05-14-00075-CR, 2015 Tex. App. LEXIS 5129 (Tex. App.

– Dallas May 20, 2015, pet. filed) (mem. op., not designated for

publication) (see APPENDIX).     The State did not file a motion for

rehearing in the court of appeals.         The State‟s petition for

discretionary review was originally due to be filed on or before June

19, 2015. By order of this Court, the petition is now due to be filed

on or before July 20, 2015.

              QUESTIONS PRESENTED FOR REVIEW

  1. Does an argument in the trial court that the United States

     Supreme Court has found the Texas statute authorizing a

     warrantless nonconsensual blood draw is unconstitutional

     preserve for review an argument that the search in this case

     was unreasonable under the Fourth Amendment?



                                  2
  2. Did the court of appeals err when it reversed a conviction

     without addressing the State’s preservation argument?

  3. Did the court of appeals err by relying on a nonfinal opinion

     from this Court which is not a part of the jurisprudence of this

     State to reverse the conviction?



                             ARGUMENT

     Appellant appealed his DWI conviction. After the trial court

overruled his motion to suppress evidence, Appellant pleaded guilty

and he was convicted of felony DWI based on his having been twice

before convicted of DWI.     In a single issue on appeal, Appellant

argued the trial court erred by denying his motion to suppress

blood test evidence because the warrantless, nonconsensual blood

draw constituted an unconstitutional search and seizure that

violated his Fourth Amendment rights. The court of appeals agreed

and overturned the judgment. This was error.


                                 I.
             Alleged error was not preserved for review.

     In its opinion, after reviewing the facts of the case, the court of

appeals began its analysis by stating: “Before trial, appellant filed a

                                   3
motion to suppress, alleging the warrantless, nonconsensual blood

draw was a violation of his Fourth Amendment rights.” Richards,

2015 Tex. App. LEXIS 5129, at *2.          This is not an accurate

characterization of the complaint presented in the motion.

     The motion to suppress argued that the United States

Supreme Court had found the Texas mandatory blood draw statute

unconstitutional. The motion to suppress stated that Appellant‟s

blood alcohol results were “illegally obtained” by a mandatory blood

draw “completed pursuant to Texas Transportation Code §724.012.”

(CR: 27).   The motion cited Missouri v. McNeely, __U.S.__, 133 S.Ct.

1552 (2013) and argued only that the blood evidence must be

suppressed because: “The United States Supreme Court, in its

decision in McNeely, has in essence ruled that §724.012 of the

Texas Transportation Code is unconstitutional based on the Fourth

Amendment of the U.S. Constitution.”       (CR: 28).   As written, the

motion to suppress presented only a facial challenge to the validity

of the Texas statute.

     During the hearing on the motion, after the arresting officer

testified, Appellant maintained his focus on arguing the Texas

statute is unconstitutional in light of McNeely:

                                  4
MR. MAYS:    . . . I think Judge Sotomayor, when she wrote
             this opinion [referring to McNeely], she made it
             clear absent exigent circumstances when
             you‟re going to physically intrude the body,
             you must have a warrant absent exigent
             circumstances. So I think that would put this
             – I think that would put this [referring to
             §724.012, the statute under which Appellant‟s
             blood sample was taken] in doubt.

THE COURT:   Right. You are – you are officially making now
             the claim that the –

MR. MAYS:    The statute‟s un – unconstitutional.

THE COURT:   Okay. I just – we need to make that clear for
             the record.

MR. MAYS:    Right. Right.

THE COURT:   So you are telling me that Section 724.012 is
             unconstitutional under the Texas Constitution
             and under the United States Constitution?

MR. MAYS:    That‟s correct.

THE COURT:   Okay. Because I need to make that clear for
             the record –

MR. MAYS:    Right.

THE COURT:   - because there‟s – there‟s – there‟s other cases
             – and you‟ll agree with me, I think – other
             cases that – that say that 724.012 is
             constitutional. And that comes from the Court
             of Criminal Appeals that said that in the past
             not in relation to McNealy [sic] though.

MR. MAYS:    Right.




                          5
                         COURT‟S RULING

     THE COURT:      So I‟m going to – I‟m going to deny your motion
                     to suppress because I‟ve got to go with what
                     the Texas Court of Criminal Appeals says
                     today. . . I can‟t overrule the Texas Court of
                     Criminal Appeals.
(RR2: 14-16).

     Appellant raised one point on appeal which the court of

appeals understood to be related to the search, not the statute. The

opinion states:

           “In a single issue, appellant argues the trial court erred
     by denying his motion to suppress. Appellant claims that,
     because he did not consent to the blood draw and the State
     did not have a warrant to draw his blood, the search was
     reasonable only if the State could show exigent circumstances.
     Because the State did not do so, appellant claims the search
     violated his Fourth Amendment rights, the motion should have
     been granted, and the blood alcohol concentration evidence
     should have been suppressed.

Richards, 2015 Tex. App. LEXIS 5129, at *2-3.

     The State had argued to the court of appeals that this point

was not preserved.    However, the State‟s preservation argument

goes unnoticed in the court‟s opinion. The record shows that the

pretrial complaint differs from the appellate argument. Neither one

can preserve the other for review. Another court of appeals has

found that appellants cannot overcome the preservation hurdle by


                                 6
presenting the same type of nonconforming arguments at trial and

on appeal. See Perez v. State, No. 01-12-01001-CR, __ S.W.3d __,

2015 Tex. App. LEXIS 2492, at *18, (Tex. App. – Houston [1st Dist.]

Mar. 17, 2015,no pet. h.) (op. on reh‟g) (finding a motion arguing

that the acquisition of the State‟s evidence was not pursuant to a

search warrant, was absent exigent circumstances, and made

without probable cause to believe the defendant engaged in criminal

activity or that such evidence, if any, was in danger of being

destroyed does not preserve for review an argument that the

mandatory blood draw statute itself is unconstitutional); Lyssy v.

State, 429 S.W.3d 37, 41 (Tex. App. – Houston [1st Dist.] 2014, no

pet.) (holding a DWI arrestee failed to preserve for review his

contention that Tex. Transp. Code Ann. §724.012 (West 2011) is

unconstitutional   given   the   McNeely   decision,   because   the

arguments and evidence at the hearing were narrowly focused on

whether there was a failure to observe the statute‟s terms; although

he did complain that the search was warrantless and conducted in

the absence of exigent circumstances, he did so in a general form).

     Preservation is a critical step in the appellate process which

the appellate court cannot overlook.       This was demonstrated

                                 7
recently in Leal v. State, 456 S.W.3d 567, 568 (Tex. Crim. App.

2015), where this Court remanded the case to the 14th District

Court of Appeals.       This Court called upon the intermediate

appellate court to address whether Leal preserved his claim that the

warrantless blood draw violated his Fourth Amendment rights by

filing a motion to suppress challenging the legality of his DWI stop.

Leal also filed an amended motion to suppress challenging the

warrantless blood draw on Fourth Amendment grounds, but this

Court did not find that the Fourth Amendment argument was

addressed in the suppression hearing.       On remand, the court of

appeals explicitly held what it had held only implicitly in its original

opinion: Leal preserved his claim. The opinion on remand explains

that: Leal‟s additional argument presented by his amended motion

had been brought to the trial court‟s attention; it did not need to be

discussed at the suppression hearing to prevent waiver; and it was

implicitly overruled. The court explicitly held that Leal had done all

that was required to preserve his Fourth Amendment argument:

raise his initial and subsequent objections by motion and amended

motion, and obtain an adverse ruling.       Leal v. State, No. 14-13-



                                   8
00208-CR, 2015 Tex. App. LEXIS 6460 (Tex. App. – Houston [14th

Dist.] June 25, 2015) (op. on remand) (not yet reported).

     Appellant should not receive the same benefit of the doubt

which was given to Leal.     In Appellant‟s case, the court asked

Appellant to state his complaint clearly for the record. He had only

one: he wanted the evidence suppressed because the Texas statute

is facially unconstitutional. There was simply no other argument.

The trial court could not possibly have made an implicit ruling that

would preserve the ground for reversal presented to the court of

appeals.

     A complaint that a nonconsensual search and seizure violated

the Fourth Amendment cannot be preserved by arguing to the court

that the Supreme Court has decided that the Texas mandatory

blood draw statute itself is unconstitutional. The State asked the

court of appeals to determine whether Appellant adequately

preserved for review his Fourth Amendment complaint, stating,

“The issue preserved for appeal is a very narrow one: Has the

United States Supreme Court in McNeely ruled that Texas

Transportation Code §724.012 is unconstitutional?”          In addition,

the State argued,

                                  9
           Issue One presents a challenge to the statute as applied
     to Appellant‟s case. But he never argued to the trial court that
     the statute was unconstitutional as applied to him, only that
     the Supreme Court had found it facially invalid. Without
     proper preservation, even constitutional error may be waived.
     See Wright v. State, 28 S.W.3d 526, 536 (Tex. Crim. App.
     2000). To preserve for appellate review an attack on the
     constitutionality of a statute as applied to his case, an appellant
     must have first raised the issue in the trial court. TEX. R.
     APP. 33.1 (A)(1); Curry v. State, 910 S.W.2d 490, 496 (Tex.
     Crim. App. 1995) (holding that the constitutionality of a
     statute as applied to the defendant must be raised in trial
     court to preserve error); see also Lacy v. State, Nos. 07-10-
     00408-CR, 07-10-00409-CR, 07-10-00410-CR, 2011 Tex. App.
     LEXIS 5942, at *1 (Tex. App. – Amarillo July 29, 2011, pet.
     ref‟d) (mem. op., not designated for publication) (holding due
     process challenge to punishment enhancement was not
     preserved for appellate review because defendant lodged no
     objections during sentencing).

State‟s brief at 13-14.

     The court of appeals did not address or acknowledge the

preservation issue. This is error.

     A court of appeals must issue a written opinion “that

addresses every issue raised and necessary to final disposition of

the appeal.” Tex. R. App. P. 47.1. Issues of procedural default are

systemic and must be reviewed by the courts of appeals, even when

the issue is not raised by the parties. Gipson v. State, 383 S.W.3d

152, 159 (Tex. Crim. App. 2014). “An appellate court „may not

reverse a judgment of conviction without first addressing any issue

                                     10
of error preservation.‟” Id. (emphasis in original) (quoting Meadoux

v. State, 325 S.W.3d 189, 193 n.5 (Tex. Crim. App. 2010)).

     Therefore, discretionary review is appropriate in this case

under Tex. R. App. P. 66.3 (a) because the Dallas court of appeals‟

decision to address an argument on appeal which does not conform

to the argument presented at the suppression hearing conflicts with

other decisions of another court of appeals on the same issue.

Review is also appropriate under Rule 66.3 (f) because in failing to

address the preservation issue shown by this record, the court of

appeals has so far departed from the accepted and usual course of

judicial proceedings, as to call for an exercise of this Court‟s power

of supervision. For these reasons, the States prays that this Court

will grant review of the decision of the court of appeals, vacate the

judgment of the court of appeals, and remand this case to that

court to address whether Appellant preserved his claim that the

warrantless blood draw violated his Fourth Amendment rights.




                                  11
                                 II.

     The court of appeals should not have followed the majority
opinion in Villarreal, when this Court has granted rehearing but has
not withdrawn or changed its original opinion or issued a new
opinion or judgment.

     In addressing the involuntary blood draw taken under the

authority of the Texas Transportation Code, the court of appeals

reversed the present case under State v. Villarreal, No. PD-0306-14,

_ S.W.3d _ 2014 WL 6734178 (Tex. Crim. App. Nov. 26, 2014) and

Lloyd v. State, 453 S.W.3d 544 (Tex. App. – Dallas 2014, pet. ref‟d),

in light of the holding in McNeely (which held that dissipation of

blood alcohol evidence does not alone present a per se exigent

circumstance sufficient to amount to an exception to the warrant

requirement, an argument not made by the State in the present

case). Relying on these authorities, the court of appeals concluded

that Appellant did not impliedly consent, for Fourth Amendment

purposes, to the blood draw under Texas Transportation Code

§724.012 and that the warrantless blood draw violated Appellant‟s

Fourth Amendment rights.

     There are two problems with the court‟s analysis. First, the

court cited and relied on Villarreal without any additional notation


                                 12
indicating the court‟s awareness that Villarreal has been pending on

rehearing since February of 2015, at least three months prior to the

court‟s decision in the present case.    As of this date, Villarreal

remains pending on rehearing in this Court. Villarreal is therefore

not final and not part of the jurisprudence of this State. See Yeager

v. State, 727 S.W.2d 280, 281 n.1 (Tex. Crim. App. 1987)(stating

that parties appearing before the Court of Criminal Appeals and the

courts of appeals “should proceed with caution” when relying on

nonfinal opinions, and that a case that pending before the Court of

Criminal Appeals on rehearing is not final and is not “part of the

jurisprudence of this State.”); Henderson v. State, 822 S.W.2d 171,

173 (Tex. App. – Houston [1st Dist.] 1991, no pet.) (finding that a

decision which is pending on motion for rehearing is “not final” and

“is not part of the jurisprudence of this State”); Vasquez v. State,

814 S.W.2d 773, 776 n.1 (Tex. App. – Houston [14th Dist.] 1991,

pet. ref‟d)(finding an opinion pending rehearing in the Court of

Criminal Appeals is “not final” or “part of the jurisprudence of this

State”, and the court of appeals is “not constrained” to follow it);

Brown v. State, 807 S.W.2d 615, 616 (Tex. App. – Houston [14th

Dist.] 1991, no pet.) (finding that the court of appeals is not

                                 13
constrained to follow an opinion of the Court of Appeals which is

pending on rehearing because it is “not final” and “not part of the

jurisprudence of this State”); Mayo v. State, 17 S.W.3d 291, 297 n.2

(Tex. App.    – Fort Worth 2000, pet. ref‟d) (finding a case on

rehearing in the Court of Criminal Appeals is “not yet final,” and it

is “not part of the jurisprudence of this State.”);Garcia v. State, 833

S.W.2d 564, 569 n.4 (Tex. App. – Dallas 1992), aff’d, 868 S.W.2d

337 (Tex. Crim. App. 1993) (finding an opinion pending on

rehearing in the Court of Criminal Appeals for 10 months is “not

final” or “part of the jurisprudence of this State,” and therefore,

deciding not to follow it); Cook v. State, 832 S.W.2d 62, 67 n.2 (Tex.

App. – Dallas 1992, no pet.) (recognizing that because the Court of

Criminal Appeals had granted rehearing in a case, it is not “final”

authority on the issue before the court and “not part of the

jurisprudence of this State”).

     In Villarreal, this Court set precedent by holding that the

implied consent statute and mandatory blood draw provisions are

not a constitutionally valid alternative to the Fourth Amendment‟s

warrant requirement. Villarreal, 2014 Tex. Crim. App. LEXIS 1898.

at *19. Since then, this Court has granted the State‟s motion for

                                  14
rehearing in Villarreal, and ordered the case resubmitted so that

this Court could consider the arguments presented by the State in

its rehearing motion.    To date, this Court has not withdrawn or

changed its opinion or judgment in Villarreal, nor has the Court

issued a new opinion or judgment.          Villarreal is not binding

authority.    The State‟s arguments should not have been rejected

based on Villarreal before this Court makes a final ruling in that

case.

        Second, the court‟s reliance on Lloyd presents a problem. In

Lloyd, the State argued appellant gave “implied consent” which was

irrevocable “as a person twice previously convicted of driving while

intoxicated” and sufficient aggravating factors were present to

satisfy the exigent circumstances requirement.       The State also

argued “sufficient aggravating factors,” specifically appellant‟s two

prior convictions, his refusal to engage in sobriety tests, and his

refusal to consent to a voluntary blood draw, satisfied the exigent

circumstances requirement. In Lloyd, the court‟s rejection of the

State‟s arguments rests on one primary authority: the original

opinion in Villarreal.



                                  15
     In the present case, the State made arguments to the court of

appeals which have not been addressed by McNeely, and cannot be

said to have been finally decided by this Court in Villarreal.

Perhaps the court of appeals intended to avoid the problem of

relying on a nonfinal decision in Villarreal. While adding Lloyd as

secondary authority might solve that problem, it created another.

Lloyd relies on the same nonfinal decision in Villarreal. Moreover,

arguments were presented by the State in the present case which

are not addressed in Lloyd. The State‟s arguments in the present

case which fall outside the scope of Lloyd have not been, but should

be, fairly determined.

     Therefore, discretionary review is appropriate in this case

under Tex. R. App. P. 66.3 (b) because the court of appeals has

decided an important question of state law that has not been, but

should be, finally decided and settled by this Court.

                              PRAYER

     The State prays that this Honorable Court will grant

discretionary review of the opinion of the Dallas court of appeals in

the instant case.



                                  16
                                     Respectfully submitted,

                                     /s/Patricia Poppoff Noble

SUSAN HAWK                           PATRICIA POPPOFF NOBLE
District Attorney                    Assistant District Attorney
Dallas County, Texas                 State Bar No. 15051250
                                     Frank Crowley Courts Building
                                     133 N. Riverfront Blvd., LB-19
                                     Dallas, Texas 75207-4399
                                     (214) 653-3634
                                     pnoble@dallascounty.org

        CERTIFICATE OF SERVICE AND WORD COUNT

     I hereby certify that a true copy of the foregoing brief was
served on, Michael Mowla, attorney for Appellant, and on Ms. Lisa
McMinn, State‟s Prosecuting Attorney by efiletexas.gov and by
United States mail, on July 2, 2015.

    I hereby further certify that the length of this brief is 3,709
words using Microsoft Word 2010.

                                     /s/Patricia Poppoff Noble
                                     PATRICIA POPPOFF NOBLE




                                17
APPENDIX
                                                                                                                Page 1




                   HENRY WILSON RICHARDS, JR., Appellant v. THE STATE OF TEXAS,
                                           Appellee

                                                 No. 05-14-00075-CR

                        COURT OF APPEALS OF TEXAS, FIFTH DISTRICT, DALLAS

                                             2015 Tex. App. LEXIS 5129


                                             May 20, 2015, Opinion Filed

NOTICE: PLEASE CONSULT THE TEXAS RULES                       Criminal Law & Procedure > Appeals > Standards of
OF APPELLATE PROCEDURE FOR CITATION OF                       Review > Deferential Review > Credibility & Demeanor
UNPUBLISHED OPINIONS.                                        Determinations
                                                             [HN1] The court reviews a trial court's ruling on a motion
PRIOR HISTORY:            [*1] On Appeal from the 282nd      to suppress evidence under a bifurcated standard. The
Judicial District Court, Dallas County, Texas. Trial Court   court grants almost total deference to the trial court's
Cause No. F-1263948-S.                                       determinations of historical facts and mixed questions of
                                                             law and fact that rely on credibility when supported by
CASE SUMMARY:                                                the record. But when mixed questions of law and fact do
                                                             not depend on the evaluation of credibility and demeanor,
                                                             the court reviews the trial court's ruling de novo.
OVERVIEW: HOLDINGS: [1]-Blood test evidence
should have been suppressed in a DWI trial because the
warrantless, nonconsensual blood draw violated the           Criminal Law & Procedure > Criminal Offenses >
Fourth Amendment; the implied-consent statute did not        Vehicular Crimes > Driving Under the Influence >
justify the warrantless blood draw, and the factors of the   Blood Alcohol & Field Sobriety > Implied Consent >
mandatory blood draw statute were not exigent                Refusals to Submit
circumstances.                                               Criminal Law & Procedure > Search & Seizure >
                                                             Warrantless Searches > Consent to Search >
OUTCOME: Reversed and remanded.                              Sufficiency & Voluntariness
                                                             Constitutional Law > Bill of Rights > Fundamental
LexisNexis(R) Headnotes                                      Rights > Search & Seizure > Scope of Protection
                                                             [HN2] To the extent the State suggests that the
                                                             implied-consent and mandatory-blood-draw provisions in
                                                             the Transportation Code categorically extinguish a DWI
                                                             suspect's right to withdraw consent when some
Criminal Law & Procedure > Appeals > Standards of
                                                             aggravating circumstance is present, that suggestion
Review > De Novo Review > Motions to Suppress
                                                             cannot be squared with the requirement that, to be valid
Criminal Law & Procedure > Pretrial Motions &
                                                             for Fourth Amendment purposes, consent must be freely
Procedures > Suppression of Evidence
                                                             and voluntarily given based on the totality of the
                                                                                                                    Page 2
                                            2015 Tex. App. LEXIS 5129, *1



circumstances, and must not have been revoked or              to ten years' confinement, probated for five years, and
withdrawn at the time of the search.                          $2000 fine. In a single issue, appellant argues the trial
                                                              court erred in denying his motion to suppress blood test
                                                              evidence because the warrantless, nonconsensual blood
Constitutional Law > Bill of Rights > Fundamental             draw constituted an unconstitutional search and seizure
Rights > Search & Seizure > Exigent Circumstances             and violated his Fourth Amendment rights. We agree with
Criminal Law & Procedure > Criminal Offenses >                appellant. We reverse the trial court's judgment and
Vehicular Crimes > Driving Under the Influence >              remand this case for further proceedings.
Blood Alcohol & Field Sobriety > Admissibility
[HN3] The factors of the mandatory blood draw statute              On December 30, 2012, Officer Shannon Smith
are not exigent circumstances that provide an exception       observed appellant driving faster than the speed limit and
to the warrant requirement; exigent circumstances are         almost colliding with another vehicle. Smith stopped
those exigencies of the situation that make the needs of      appellant, who "opened up his door immediately." Smith
law enforcement so compelling that a warrantless search       observed appellants' eyes were red and his breath smelled
is objectively reasonable under the Fourth Amendment.         of alcohol. After performing field sobriety tests, Smith
These include, for example, the threat of imminent            arrested appellant [*2] for DWI. Appellant refused to
removal or destruction of evidence, threat to human life,     give a blood sample. Smith took appellant to the Lew
rendering emergency assistance to injured occupants, or       Sterrett Justice Center where Smith discovered records
hot pursuit of a fleeing suspect. However, as a general       indicating appellant had been convicted of DWI twice
rule, the context of blood testing is different in critical   before. Although Smith could have "easily" obtained a
respects from other destruction-of-evidence cases in          warrant, she did not do so. After approximately two
which police are truly confronted with a now or never         hours, blood was drawn from appellant without his
situation. Such cases should be considered on a               consent pursuant to section 724.012 of the Texas
case-by-case assessment of exigency, not a categorical        Transportation Code.
rule. In fact, in those drunk-driving investigations where
police officers can reasonably obtain a warrant before a           Before trial, appellant filed a motion to suppress,
blood sample can be drawn without significantly               alleging the warrantless, nonconsensual blood draw was a
undermining the efficacy of the search, the Fourth            violation of his Fourth Amendment rights. Following a
Amendment mandates that they do so.                           hearing, the trial court denied appellant's motion. The
                                                              trial court entered findings of fact that, among other
COUNSEL: For Appellants: Michael Mowla, Cedar                 things, appellant refused to give a blood sample, blood
Hill, TX.                                                     evidence was nevertheless seized without a warrant, and
                                                              the blood evidence was seized under Texas
For Appellees: Patricia Poppoff Noble, Dallas, TX.            Transportation Code section 724.012. While this appeal
                                                              was pending, the Court of Criminal Appeals, relying on
JUDGES: Before Justices Bridges, Fillmore, and Brown.         Missouri v. McNeely,       U.S. , 133 S.Ct. 1552, 185 L.
Opinion by Justice Bridges.                                   Ed. 2d 696 (2013), issued its opinion in State v.
                                                              Villarreal, No. PD-0306-14,        S.W.3d    , 2014 Tex.
OPINION BY: DAVID L. BRIDGES                                  Crim. App. LEXIS 1898, 2014 WL 6734178 (Tex. Crim.
                                                              App. Nov. 26, 2014), addressing involuntary blood draws
OPINION                                                       taken under the authority of the Texas Transportation
                                                              Code.
MEMORANDUM OPINION                                                 In a single issue, appellant argues the trial court erred
                                                              by denying his motion to suppress. Appellant claims that,
    Opinion by Justice Bridges
                                                              because he did not consent to the blood draw and the
    Henry Wilson Richards appeals his driving while           State did not have a warrant [*3] to draw his blood, the
intoxicated (DWI) conviction. After the trial court           search was reasonable only if the State could show
overruled his motion to suppress evidence, appellant          exigent circumstances. Because the State did not do so,
pleaded guilty to DWI, and the trial court sentenced him      appellant claims the search violated his Fourth
                                                                                                                    Page 3
                                             2015 Tex. App. LEXIS 5129, *3



Amendment rights, the motion should have been granted,         invoke the mandatory blood draw statute. See TEX.
and the blood alcohol concentration evidence should have       TRANSP. CODE ANN. § 724.012; Lloyd, 453 S.W.3d at 548.
been suppressed.                                               [HN3] These factors are not exigent circumstances that
                                                               provide an exception to the warrant requirement; exigent
     [HN1] We review a trial court's ruling on a motion to     circumstances are those "exigencies of the situation" that
suppress evidence under a bifurcated standard. State v.        "make the needs of law enforcement so compelling that
Kerwick, 393 S.W.3d 270, 273 (Tex. Crim. App. 2013).           [a] warrantless search is objectively reasonable under the
We grant almost total deference to the trial court's           Fourth Amendment." Mincey v. Arizona, 437 U.S. 385,
determinations of historical facts and mixed questions of      394, 98 S. Ct. 2408, 57 L. Ed. 2d 290 (1978). These [*5]
law and fact that rely on credibility when supported by        include, for example, the threat of imminent removal or
the record. Id. But when mixed questions of law and fact       destruction of evidence, threat to human life, rendering
do not depend on the evaluation of credibility and             emergency assistance to injured occupants, or hot pursuit
demeanor, we review the trial court's ruling de novo. Id.      of a fleeing suspect. See Kentucky v. King, U.S. , 131
                                                               S.Ct. 1849, 1856, 179 L. Ed. 2d 865 (1978). However, as
     The State argues that, by accepting the privilege to      a general rule, the "context of blood testing is different in
drive, a person accepts the responsibility to be subject to    critical respects from other destruction-of-evidence cases
the reasonable regulations the State will use to protect the   in which police are truly confronted with a 'now or never'
welfare and safety of the general public, including those      situation." McNeely, 133 S.Ct. at 1561. Such cases should
of the implied-consent statute, section 724.012, and           be considered on a case-by-case assessment of exigency,
Administrative License Revocation program. The State           not a categorical rule. Id. In fact, in "those drunk-driving
argues the implied-consent statute is "a codification of       investigations where police officers can reasonably obtain
exigent circumstances that gives helpful guidance to law       a warrant before a blood sample can be drawn without
enforcement officials" and these exigent circumstances         significantly undermining the efficacy of the search, the
[*4] made a warrant unnecessary in this case.                  Fourth Amendment mandates that they do so." Id. Here,
                                                               no exigent circumstances existed which would justify a
     To the extent the State relies on the implied-consent
                                                               warrantless search.
statute to justify the warrantless blood draw in this case,
such reliance is misplaced. The court of criminal appeals,          Appellant did not consent to the draw, and the taking
in Villarreal, held as follows:                                of his blood did not fall under another recognized
                                                               exception to the warrant requirement. We therefore
          [HN2] To the extent the State suggests               conclude the warrantless, nonconsensual blood draw
       that     the     implied-consent       and              violated appellant's Fourth Amendment rights. See
       mandatory-blood-draw provisions in the                  McNeely, 133 S.Ct. at 1561-63; Villarreal, 2014 Tex.
       Transportation      Code     categorically              Crim. App. LEXIS 1898, 2014 WL 6734178 at *20;
       extinguish a DWI suspect's right to                     Lloyd, 453 S.W.3d at 548. The trial court therefore
       withdraw consent when some aggravating                  abused its discretion in denying appellant's motion to
       circumstance is present, that suggestion                suppress. We sustain appellant's sole issue.
       cannot be squared with the requirement
       that, to be valid for Fourth Amendment                      We reverse [*6] the trial court's judgment and
       purposes, consent must be freely and                    remand for further proceedings consistent with this
       voluntarily given based on the totality of              opinion.
       the circumstances, and must not have been
       revoked or withdrawn at the time of the                    Do Not Publish
       search.                                                  TEX. R. APP. P. 47.2(b)

Villarreal, 2014 Tex. Crim. App. LEXIS 1898, 2014 WL               /David L. Bridges/
6734178 at *11; see Lloyd v. State, 453 S.W.3d 544,
                                                                   DAVID L. BRIDGES
547-48 (Tex. App.--Dallas 2014, pet. ref'd).
                                                                   JUSTICE
    As to the presence of exigent circumstances in this
case, the State essentially relies on the same factors that
                                                                                             Page 4
                                        2015 Tex. App. LEXIS 5129, *6



JUDGMENT                                                this opinion.

    Based on the Court's opinion of this date, the          Judgment entered May 20, 2015.
judgment of the trial court is REVERSED and the cause
REMANDED for further proceedings consistent with
