      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-09-00721-CR



                                   State of Texas, Appellant

                                                v.

                                   Michael Mosely, Appellee


              FROM COUNTY COURT AT LAW NO. 8 OF TRAVIS COUNTY
NO. C-1-CR-08-400106, HONORABLE CARLOS HUMBERTO BARRERA, JUDGE PRESIDING



                                          OPINION


               The State appeals an order granting Michael Mosely’s pre-trial motion to suppress

evidence. See Tex. Crim. Proc. Code Ann. art. 44.01(a)(5) (West Supp. 2010). Mosely was involved

in a traffic accident and subsequently had his blood-alcohol content (“BAC”) tested via blood-draw.

Based on the results of the test, the State charged Mosely with driving while intoxicated (“DWI”).

See Tex. Penal Code Ann. § 49.04 (West 2003). Mosely moved to suppress the results of the test on

the grounds that he did not consent to the test and was not subject to an involuntary test. See Tex.

Trans. Code Ann. § 724.012(b) (West Supp. 2010) (listing statutory requirements for involuntary

blood draw);1 Aliff v. State, 627 S.W.2d 166, 169 (Tex. Crim. App. 1982) (listing constitutional




       1
           This statute has been revised since the events in question. See Act of June 19, 2009,
81st Leg., R.S., ch. 1348, § 18, 2009 Tex. Gen. Laws 4267-68. Throughout this opinion we
refer to the version of the statute that was in effect when Mosely had his blood drawn. See Act of
June 20, 2003, 78th Leg., R.S., ch. 422, § 1, 2003 Tex. Gen. Laws 1669-70.
requirements for involuntary blood draw). After a hearing, the trial court granted Mosely’s motion.

The State argues that granting the motion was error because Mosely consented to the blood draw and

in any event his consent was not required. We affirm.


                     FACTUAL AND PROCEDURAL BACKGROUND

               At approximately 1:55 a.m. on July 12, 2006, Mosely was driving his truck east on

Highway 71 in western Travis County. He had five passengers in his truck, all of whom had been

drinking throughout the day. Although Mosely was the “designated driver,” he admitted during the

suppression hearing that he had also consumed several drinks over the course of the day.

               As Mosely turned left onto Bob Wire Road, a motorcycle struck the right rear portion

of his truck. Its rider, who had been heading west, was thrown over the bed of the truck and came

to a stop in the middle of Highway 71. Mosely stopped his truck, and he and his passengers got out.

They attempted to warn approaching vehicles of the motorcyclist’s presence on the highway, but one

vehicle failed to slow down and ran over the motorcyclist. It dragged the motorcyclist approximately

thirty feet before he became dislodged, at which point the vehicle sped away. Someone in Mosely’s

group called emergency medical services.

               At approximately 2:00 a.m., state trooper Michael Campos arrived on the scene. He

testified at the suppression hearing that by the time he arrived, emergency medical services had

already declared the motorcyclist dead. Trooper Campos proceeded to interview Mosely and his

passengers. Campos testified that Mosely told him he had not seen the motorcycle approaching.

Mosely’s passengers also told Campos they had not seen the motorcycle approaching. Mosely and

his passengers maintained that the motorcycle’s headlight had not been on. Tests conducted on the

                                                 2
motorcycle after the accident were inconclusive on that matter, though tests on its deceased rider

revealed that his BAC was .14 at the time of the accident, well above the legal threshold for

intoxication. See Tex. Penal Code Ann. § 49.01(1)(B) (West 2003).

               Trooper Campos testified that during his on-scene interaction with Mosely, Mosely

exhibited a “noticeable, probably moderate” smell of alcohol and bloodshot eyes but did not appear

to have trouble speaking or maintaining his balance. Campos testified that Mosely told him he had

had “a couple of drinks,” though Mosely later testified and denied Campos’s allegation. Campos

testified that while on the scene he believed Mosely was “possibly” intoxicated but did not form a

definite opinion on the matter. Campos did not ask Mosely to perform any field sobriety tests.

               Campos testified that based on the circumstances of the accident, he believed that

Mosely was subject to a mandatory blood draw to test his BAC. He testified that he


       explained to [Mosely] what the law was and that he had two choices, one, that he
       comply voluntarily to go . . . to the nearest medical facility for a blood draw, or that
       he would be placed in custody and transported against his will and . . . a blood draw
       would have been taken based on the law at that time.


Campos clarified: “I didn’t order him [to have his blood drawn] or anything. I asked him.” Campos

testified that after he explained his understanding of the law, Mosely “consented” to a blood draw.

Subsequently, Mosely got in the patrol car of state trooper Jymie Ha and rode with Ha to a nearby

emergency room. At no point did Campos or Ha handcuff Mosely or tell him he was under arrest.

               Trooper Ha testified that Mosely rode in the front seat of his patrol car on the way to

the emergency room. The trip took somewhere between twelve and fifteen minutes, during which

time Ha smelled alcohol on Mosely but noticed no other signs of intoxication.

                                                  3
               Mosely’s testimony about the subsequent events conflicted with Ha’s. Mosely testified

that as he and Ha arrived at the emergency room, he told Ha that he “felt very uncomfortable about

the situation, that [he] wasn’t sure what [his] rights were[,] and asked if it would be okay if [he]

contacted [his] attorney prior to going into the hospital.” Mosely testified that Ha responded by

saying, “if [Mosely] didn’t do anything wrong, [he] didn’t have anything to worry about.” Ha

testified that he did not recall this exchange. He also testified that he never told Mosely “anything

along [the lines]” of “if you don’t give [blood voluntarily], I’m going to have to arrest you.”

               Mosely testified that he and Ha entered the emergency room together, and Ha

approached a nurse about needing to have Mosely’s blood drawn. Mosely testified that the nurse

responded by asking whether Ha had Mosely’s consent to the blood draw, and Ha initially did not

respond. Mosely testified that the nurse followed up by saying, “[w]ithout the patient’s consent, we

can’t do a blood alcohol profile unless he’s under arrest. Is he under arrest?” Mosely testified that

Ha “hesitated for a moment and kind of shrugged and said, Yes, he’s under arrest.” Ha testified that

he did not recall this exchange and that he believed Mosely gave blood voluntarily. He also testified

that he believed Mosely was not under arrest, that he would have lacked probable cause to place

Mosely under arrest, and that he never filled out the paperwork that is required when a suspect’s

blood is drawn involuntarily pursuant to an arrest.

               Mosely testified that after he heard Ha tell the nurse he was under arrest, he asked Ha

why he was under arrest and was told that “when there was an accident involving a fatality that it was

mandatory that they conduct a blood alcohol profile.” Mosely testified that after this exchange he

basically had no further communication with Ha.



                                                  4
                Mark White, the nurse who drew Mosely’s blood, testified that he did not remember

much about the events in question. He did not remember Mosely objecting to the blood draw, nor

did he remember “the word ‘voluntary’ being said” at any point.

                Jennifer Hall, who was one of Mosely’s passengers on the night of the accident,

testified that she never saw any indication that Mosely was under arrest. She also testified, however,

that after Mosely talked to Trooper Campos, he told her that he expected to be arrested because he

was going to refuse to have his blood drawn.

                Mosely testified that over the course of the evening in question he was never

“specifically asked” whether he would voluntarily submit to the taking of a blood sample. He also

testified that after hearing Ha tell the nurse he was under arrest, he felt he would be “resisting arrest”

if he expressed any objection to having his blood drawn. Thus, Mosely testified, he felt he had no

choice but to submit to the blood draw.

                Mosely testified that he was never asked to sign a blood-draw consent form, nor was

he read anything about the consequences of refusing a blood draw. He testified that he would not

have signed a consent form if he had been presented one.

                After Mosely’s blood was drawn, Ha returned Mosely to the scene of the accident and

let him go. Roughly six weeks later, the State obtained the results of Mosely’s blood test. They

showed that Mosely’s BAC was .19 at the time of the draw; accordingly, the State charged Mosely

with driving while intoxicated. See id. § 49.04.

                Before trial, Mosely moved to suppress the results of his blood test on the grounds that

he neither consented to the test nor met the criteria for having his blood drawn involuntarily. The trial



                                                    5
court held a hearing on the motion, subsequently granted the motion, and issued written findings of

fact and conclusions of law. The findings of fact included the following:


       •       “Moseley [sic] caused the accident by having failed to yield the right of way,
               although there was a question, but no clear evidence, as to whether the
               motorcyclist . . . had his head lamp on.”

       •       “D.P.S. Trooper Michael Campos . . . found Moseley [sic] to have a noticeable
               odor of alcohol coming from his breath, to having [sic] bloodshot eyes, and
               admitting to having had ‘a couple of (alcoholic) drinks.’”

       •       “Trooper Campos explained to Moseley [sic] that he could voluntarily submit
               to a blood draw or that he would be taken into custody and have a mandatory
               blood draw taken.”

       •       “Moseley [sic] believed he was under arrest and expected to be jailed at the
               time.”

       •       “When asked by the medical attendant at the hospital, Trooper Ha stated that
               Moseley [sic] was under arrest in order to have the blood drawn.”

       •       “Moseley [sic] acquiesced, but did [not] volunteer, to give his blood.”


The trial court’s conclusions of law included the following:


       •       “Trooper Campos had reasonable suspicion to detain Mr. Moseley [sic] for
               investigation of intoxication.”

       •       “At the time Mr. Moseley’s [sic] blood was drawn, he was not under arrest.”

       •       “Mr. Moseley [sic] did not voluntarily agree to have his blood drawn.”

       •       “Mr. Moseley’s [sic] acquiescence was not voluntary but the result of coercion
               by Troopers Campos and Ha informing Mr. Moseley [sic] that he would be
               arrested and was under arrest to effect the blood draw, respectively.”


The State appeals.

                                                 6
                                   STANDARD OF REVIEW

               We review a trial court’s ruling on a motion to suppress evidence for abuse of

discretion. Crain v. State, 315 S.W.3d 43, 48 (Tex. Crim. App. 2010). A trial court abuses its

discretion when its ruling is arbitrary or unreasonable. State v. Mechler, 153 S.W.3d 435, 439

(Tex. Crim. App. 2005). We defer almost completely to the trial court’s determinations of historical

fact, especially if they are based on assessments of witness credibility and demeanor. Crain,

315 S.W.3d at 48. We afford the same deference to trial court rulings on the application of law to

pure questions of fact, and to mixed questions of law and fact, when they depend on evaluations of

witness credibility and demeanor. Id. For mixed questions of law and fact that do not depend

on evaluations of witness credibility and demeanor, however, we review the trial court’s rulings

de novo. Id.


                                          DISCUSSION

               The State argues that Mosely was constitutionally and statutorily subject to an

involuntary blood draw, so his purported failure to consent was irrelevant. Alternatively, the State

argues that Mosely “volunteered” to give blood and was “uncoerced” because he gave blood after

Campos gave him “a true statement of the law and circumstances regarding a mandatory blood draw.”

We will examine these arguments in turn.


Whether an Involuntary Blood Draw Was Constitutionally Permissible

               Generally speaking, drawing blood from a suspect is a search and seizure within the

scope of the Fourth Amendment to the United States Constitution and article I, section 9 of the Texas



                                                 7
Constitution. See Schmerber v. California, 384 U.S. 757, 767 (1966); Aliff, 627 S.W.2d at 169.

Searches and seizures are permissible if they are justified in the circumstances and made in a proper

manner. See Schmerber, 384 U.S. at 768. Thus, a warrantless seizure of a blood sample can be

constitutionally permissible if officers have probable cause to arrest a suspect, exigent

circumstances exist, and a reasonable method of extraction is available. Id. at 767-68; see Aliff,

627 S.W.2d at 169-70.

               The State argues that all of the constitutional criteria for an involuntary blood draw

were met here. It argues, in other words, that Trooper Campos had probable cause to arrest Mosely

for DWI, that exigent circumstances existed (namely, Mosely’s BAC would decline over time and

therefore needed to be tested quickly), and that a reasonable method of extraction (blood draw by an

emergency-room nurse) was available. Mosely argues, in contrast, that not all of the constitutional

criteria for an involuntary blood draw were met because Campos lacked probable cause to arrest

him for DWI.

               “‘Probable cause’ for a warrantless arrest exists if, at the moment the arrest is made,

the facts and circumstances within the arresting officer’s knowledge and of which he has reasonably

trustworthy information are sufficient to warrant a prudent man in believing that the person arrested

had committed or was committing an offense.” Amador v. State, 275 S.W.3d 872, 878 (Tex. Crim.

App. 2009). A finding of probable cause requires more than bare suspicion but less than would

justify conviction. Id. If a defendant establishes that he was arrested without a warrant, the State

bears the burden of proving that probable cause existed to justify the arrest. See id. Whether probable

cause existed is an objective inquiry that requires consideration of the totality of the circumstances



                                                  8
facing the arresting officer. See id. Thus, while deferring to the facts found by the trial court, we

review de novo whether the evidence establishes that probable cause existed. See Torres v. State,

182 S.W.3d 899, 902 (Tex. Crim. App. 2005).

               The trial court issued a few findings of fact that bear on whether Campos had probable

cause to arrest Mosely for DWI. The court found that when Campos approached Mosely on the night

in question, Mosely had a noticeable odor of alcohol coming from his breath, had bloodshot eyes, and

admitted to having a couple of alcoholic drinks. In addition, the court found that Mosely caused a

traffic accident by failing to yield the right-of-way (though the court also found that “there was a

question, but no clear evidence,” as to whether the motorcyclist who collided with Mosely had his

headlight on). The record contains no other evidence that would support a finding that Mosely

exhibited signs of intoxication on the night in question. The question we must answer is whether this

record so thoroughly satisfies the State’s burden of establishing that Campos had probable cause to

arrest Mosely for DWI that the trial court’s ruling to the contrary was an abuse of discretion. See id.

               We hold that it does not. Intoxication is defined as “not having the normal use of

mental or physical faculties.” See Tex. Penal Code Ann. § 49.01(2)(A) (West 2011). Thus, to

establish that Campos had probable cause to arrest Mosely for DWI, the State needed to present

evidence that Mosely lacked the normal use of his mental or physical faculties. See Kirsch v. State,

276 S.W.3d 579, 584-85 (Tex. App.—Houston [1st Dist.] 2008), aff’d, 306 S.W.3d 738 (Tex. Crim.

App. 2009). It did not do so. Neither Campos nor Ha performed field sobriety tests on Mosely, and

Campos testified that he did not observe Mosely slur his speech, have trouble maintaining his balance,

or do anything else to suggest that he was physically or mentally impaired. Indeed, both troopers



                                                  9
testified that they did not form an opinion as to whether Mosely was intoxicated. While the facts that

Mosely was involved in an accident, smelled of alcohol, had bloodshot eyes, and admitted to drinking

are certainly consistent with intoxication, they do not establish that Mosely had lost the normal use

of his faculties.

                Because the State failed to establish that Mosely had lost the normal use of his

faculties, it failed to carry its burden of establishing that the troopers had probable cause to arrest

Mosely. Thus, the troopers could not constitutionally draw Mosely’s blood without Mosely’s

consent. Schmerber, 384 U.S. at 768; Aliff, 627 S.W.2d at 169-70. We turn to consider whether the

troopers had statutory authority to draw Mosely’s blood without Mosely’s consent.


Whether an Involuntary Blood Draw Was Statutorily Permissible

                When the events in question occurred, transportation code section 724.012(b)(1)

provided in pertinent part:


        A peace officer shall require the taking of a specimen of the person’s breath or blood
        if:

        1) the officer arrests the person for an offense under Chapter 49, Penal Code,
        involving the operation of a motor vehicle or a watercraft;

        2) the person was the operator of a motor vehicle or a watercraft involved in an
        accident that the officer reasonably believes occurred as a result of the offense;

        3) at the time of the arrest the officer reasonably believes that as a direct result of the
        accident:

                (A) any individual has died or will die; or

                (B) an individual other than the person has suffered serious bodily injury; and



                                                    10
       4) the person refuses the officer’s request to submit to the taking of a specimen
       voluntarily.


Tex. Transp. Code § 724.012(b). The State argues that all of these criteria were met here, so under

the statute Mosely’s blood could be drawn without his consent. We disagree for two reasons. First,

a statute cannot authorize what the Constitution forbids. See U.S. Const. art. VI, cl. 2. (“This

Constitution, and the Laws of the United States which shall be made in Pursuance thereof . . . , shall

be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in

the Constitution or Laws of any State to the Contrary notwithstanding.”). As explained above, under

the circumstances established by the evidence, the Constitution forbade an involuntary blood draw

here; thus, a statute could not authorize one. See State v. Johnston, 336 S.W.3d 649, 661 (Tex. Crim.

App. 2011) (transportation code chapter 724 does not dictate what is constitutionally permissible);

Knisely v. State, 81 S.W.3d 478, 483 (Tex. App.—Dallas 2002, pet. ref’d) (statutory requirements for

blood sampling supplement, not reduce, constitutional requirements).

               Second, by its own terms, section 724.012(b) applies only when an officer arrests a

suspect, see Tex. Transp. Code § 724.012(b), and an arrest is legal only if supported by probable

cause. Amador, 275 S.W.3d at 878. It follows that application of section 724.012(b) is legal only if

it involves an arrest that is supported by probable cause. See Knisely, 81 S.W.3d at 483. As

explained above, the State failed to carry its burden of establishing that troopers Campos and Ha had

probable cause to arrest Mosely.2 Thus, the State failed to establish that the troopers could legally




       2
          Notably, troopers Campos and Ha both testified that they never developed probable cause
to arrest Mosely.

                                                 11
arrest Mosely, which means in turn that the State failed to establish that the troopers could legally

force Mosely to have his blood drawn pursuant to section 724.012(b). It follows that the trial court

did not abuse its discretion by holding that Mosely was not statutorily subject to an involuntary blood

draw. We turn, finally, to consider whether Mosely consented to a blood draw.


Whether Mosely Consented to a Blood Draw

               The State argues that the trial court erred by concluding Mosely “did not voluntarily

agree to have his blood drawn.” We review the trial court’s conclusion for an abuse of discretion.

Crain, 315 S.W.3d at 48; see also Johnson v. State, 226 S.W.3d 439, 443 (Tex. Crim. App. 2007)

(“Typically, whether consent is voluntary turns on questions of fact and is determined from the

totality of the circumstances. For that reason, a finding of voluntary consent is reviewed only for an

abuse of discretion.”) (citations omitted).

               As noted above, sampling a suspect’s blood is a form of search and seizure under both

the United States and Texas Constitutions. See Schmerber, 384 U.S. at 767; Aliff, 627 S.W.2d at 169.

Thus, sampling a suspect’s blood without a warrant or probable cause is constitutionally

permissible only if the suspect consents. See Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973);

Carmouche v. State, 10 S.W.3d 323, 331 (Tex. Crim. App. 2000). The Texas Constitution

requires the State to show by clear and convincing evidence that consent was freely given.

Carmouche, 10 S.W.3d at 331. To be valid, consent must be positive and unequivocal and may not

be coerced. Id.

               The State argues that Mosely was not “coerced” into giving blood because he gave

blood after Trooper Campos correctly explained to him the law regarding blood draws. As the trial

                                                  12
court found, Campos “explained to Mosely that he could voluntarily submit to a blood draw or that

he would be taken into custody and have a mandatory blood draw taken.” On the record before us,

this explanation of the law was incorrect; as detailed above, the State failed to establish that Campos

had probable cause to arrest Mosely at the time he made this statement. Thus, the State failed to

establish that Campos could legally “take[] [Mosely] into custody” for a mandatory blood draw. It

follows that Campos’s explanation of the law could not yield voluntary consent. See Erdman v. State,

861 S.W.2d 890, 894 n.3 (Tex. Crim. App. 1993) (“If a driver’s consent is induced by an officer’s

misstatement of the consequences flowing from a refusal to take the test, the consent is not

voluntary.”) (quoting State v. Sells, 798 S.W.2d 865, 867 (Tex. App.—Austin 1990, no pet.)).

                Apart from Campos’s misstatement of the law, Mosely testified he was “never

specifically asked” whether he would voluntarily submit to a blood test. He also testified that when

he arrived at the hospital with Ha, he told Ha that he “felt very uncomfortable about the situation, that

[he] wasn’t sure what [his] rights were[,] and asked if it would be okay if [he] contacted [his] attorney

prior to going into the hospital.” Finally, Mosely testified that he found it “shocking” to hear Ha

testify that he gave blood voluntarily. These statements contradict the notion that Mosely positively

and unequivocally consented to a blood draw. See Carmouche, 10 S.W.3d at 331 (consent must be

positive and unequivocal). We infer that the trial court believed Mosely’s statements because it ruled

that Mosely did not consent to a blood draw. See Cantu, 253 S.W.3d at 282. We must defer to the

court’s belief that Mosely’s statements were truthful. See Crain, 315 S.W.3d at 48 (we defer to trial

court rulings that depend on evaluations of witness credibility and demeanor). As a result, we

conclude that sufficient evidence supported the trial court’s conclusion that Mosely did not



                                                   13
voluntarily agree to have his blood drawn. See id.; see also Carroll v. State, 916 S.W.2d 494, 503

(Tex. Crim. App. 1996) (trial court does not abuse its discretion if some evidence in the record

supports its decision). We overrule the State’s final issue.


                                          CONCLUSION

               The trial court did not abuse its discretion by ruling that Mosely’s blood was obtained

unlawfully. Evidence supported the court’s determination that Mosely did not voluntarily consent

to a blood draw. Furthermore, because the State failed to carry its burden of establishing that Trooper

Campos or Ha had probable cause to arrest Mosely, the State failed to carry its burden of establishing

that an involuntary blood draw was constitutionally or statutorily permissible. We affirm the order

suppressing the results of Mosely’s blood test.



                                               __________________________________________

                                               David Puryear, Justice

Before Chief Justice Jones, Justices Puryear and Pemberton

Affirmed

Filed: July 28, 2011

Publish




                                                  14
