                                                                               PD-0723-15
                          PD-0723-15                         COURT OF CRIMINAL APPEALS
                                                                              AUSTIN, TEXAS
                                                             Transmitted 7/15/2015 1:09:37 PM
                                                               Accepted 7/17/2015 1:20:30 PM
                                                                               ABEL ACOSTA
                             IN THE COURT                                              CLERK
                     OF CRIMINAL APPEALS OF TEXAS

TROY SCOTT BURCIE,                 §
    APPELLANT                      §
                                   §
V.                                 §     PD-0723-15
                                   §
THE STATE OF TEXAS,                §
    APPELLEE                       §


                                § § §

          STATE'S PETITION FOR DISCRETIONARY REVIEW

                                § § §

                                SHAREN WILSON
                                Criminal District Attorney
                                Tarrant County, Texas

                                DEBRA WINDSOR, Assistant
                                Criminal District Attorney
                                Chief, Post-Conviction

                                TANYA S. DOHONEY
                                Assistant Criminal District Attorney
                                Tim Curry Criminal Justice Center
                                401 W. Belknap
     July 17, 2015
                                Fort Worth, Texas 76196-0201
                                (817) 884-1687 FAX (817) 884-1672
                                State Bar No. 02760900
                                ccaappellatealerts@tarrantcountytx.gov

                                LISA C. MCMINN,
                                State Prosecuting Attorney


                 ORAL ARGUMENT IS NOT REQUESTED
              IDENTITY OF THE PARTIES AND COUNSEL

     The State of Texas is represented by the Hon. Sharen Wilson,

Tarrant County Criminal District Attorney. Additionally, representing the

State on appeal is the Hon. Tanya S. Dohoney, Assistant Criminal District

Attorney and Hon. Debra Windsor, Post-Conviction Chief. At the trial level,

Hon. Erin Cofer and Hon. Tanya S. Dohoney represented the prosecution.

The State’s attorneys’ address is Office of the Criminal District Attorney of

Tarrant County, Tim Curry Criminal Justice Center, 401 W. Belknap, Fort

Worth, Texas 76196-0201.

     Appellant, Defendant below, is Troy Scott Burcie. Hon. Abe Factor,

Factor & Campbell, 5719 Airport Freeway, Fort Worth, Texas, 76117

represented Appellant at trial and now on appeal. Hon. Tim Robinson,

2010 N. Park Blvd., #112, Grapevine, Texas          76051 also represents

Appellant on appeal.

     The Hon. Mollee Westfall, judge of the 371st Judicial District Court in

Tarrant County, Texas, presided over Appellant’s case.




                                      ii
                                       SUBJECT INDEX

                                                                                               PAGE

IDENTITY OF THE PARTIES AND COUNSEL ........................................... ii

SUBJECT INDEX ...................................................................................... iii

INDEX OF AUTHORITIES .......................................................................... v

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

STATEMENT OF THE CASE ..................................................................... 2

STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE ............. 2

STATEMENT OF FACTS ........................................................................... 3

QUESTIONS PRESENTED FOR REVIEW................................................. 4

FIRST QUESTION FOR REVIEW .............................................................. 4

        Does a warrantless, nonconsensual blood draw conducted
        pursuant to TEX. TRANSP. CODE § 724.012(b) violate the Fourth
        Amendment? (1CR at 21, 81–82; 2RR at 5, 61)

SECOND QUESTION FOR REVIEW ......................................................... 4

        Are Fourth Amendment warrant-preference exceptions the sole
        measure of Fourth Amendment reasonableness in warrantless
        scenarios? (1CR at 21, 81–82; 2RR at 5, 61)

THIRD QUESTION FOR REVIEW .............................................................. 4

        Do exclusionary rule principles mandate suppression of blood
        evidence seized via a warrantless, nonconsensual, valid-at-the-
        time mandatory blood draw? (1CR at 21, 81–82; 2RR at 5, 61)



                                                   iii
ARGUMENTS AND AUTHORITIES............................................................ 5

I.      Valid, compelled statutory blood draw ............................................... 6

        A.      Codification of Fourth Amendment principles............................ 7
        B.      Special-needs framework adds to the reasonableness
                calculation ................................................................................ 9
        C.      Erroneous consideration of the “Less Intrusive Means”
                test ......................................................................................... 10

II.     Implied-consent draws are reasonable ............................................ 11

III.    Exclusionary rule inapplicable and not invoked ................................ 13

CONCLUSION AND PRAYER .................................................................. 16

CERTIFICATE OF COMPLIANCE ............................................................ 17

CERTIFICATE OF SERVICE .................................................................... 17

APPENDIX ................................................................................................ A




                                                      iv
                                 INDEX OF AUTHORITIES

Cases

Breithaupt v. Abram,
352 U.S. 432 (1957) ................................................................................. 13

Burcie v. State,
No. 08-13-00212-CR, 2015 WL 2342876
(Tex. App.—Fort Worth Mar. 14, 2015) ................................................... 3, 5

Cole v. State,
454 S.W.3d 89 (Tex. App.—Texarkana 2014, pet. granted).................. 5n, 6

Davis v. United States,
564 U.S. ___, 131 S. Ct. 2419 (2011) ....................................................... 14

Douds v. State,
434 S.W.3d 842
(Tex. App.—Houston [14th Dist.] June 5, 2014, pet. granted) ............... 5n, 6

Heien v. North Carolina,
___ U.S. ___, 135 S. Ct. 530 (2014) ................................................... 15, 16

Holidy v. State,
No. 06-13-00261-CR, 2014 WL 1722171
(Tex. App.—Texarkana Apr. 30, 2014, pet. granted)
(mem. op., not designated for publication) ................................................ 5n

Hulit v. State,
982 S.W.2d 431 (Tex. Crim. App. 1998) ............................................. 11, 12

Illinois v. Krull,
480 U.S. 340 (1987) ................................................................................. 14

Maryland v. King,
569 U.S. ___, 133 S. Ct. 1958 (2013) ....................................................... 12



                                                   v
McGee v. State,
105 S.W.3d 609 (Tex. Crim. App. 2003) ................................................... 12

McGruder v. State,
No. 10-13-00109-CR, ___ S.W.3d ___, 2014 WL 3973089
(Tex. App.—Waco 2014, pet. granted) ..................................................... 5n

Michigan Dept. of State Police v. Sitz,
496 U.S. 444 (1990) ................................................................................. 12

Michigan v. DeFillippo,
443 U.S. 31 (1979) ................................................................................... 15

Miles v. State,
241 S.W.3d 28 (Tex. Crim. App. 2007) ....................................................... 7

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

Reeder v. State,
428 S.W.3d 930 (Tex. App.—Texarkana 2014, pet. granted).................... 5n

Segundo v. State,
270 S.W.3d 79 (Tex. Crim. App. 2008),
cert. denied, 558 U.S. 828 (2009) ............................................................. 12

Skinner v. Railway Labor Executives' Ass'n,
489 U.S. 602 (1989) ....................................................................... 9, 10, 11

Smith v. State,
No. 13-11-00694-CR, ___ S.W.3d ___, 2014 WL 5901759
(Tex. App.—Corpus Christi 2014, pet. granted) ........................................ 5n

Sotelo v. State,
913 S.W.2d 507, 510 (Tex. Crim. App. 1995) ......................................... 13n

State v. Villarreal,
PD-0306-14, ___ S.W.3d ___,
2014 WL 6734178 (Tex. Crim. App. 2014) .........................................passim

                                                   vi
Tharp v. State,
935 S.W.2d 157 (Tex. Crim. App. 1996) ............................................... 9, 10

Vernonia School Dist. 47J v. Acton,
515 U.S. 646 (1995) ................................................................................. 10

Weems v. State,
434 S.W.3d 655 (Tex. App.—San Antonio 2014, pet. granted) ............ 5n. 6

Welsh v. Wisconsin,
466 U.S. 740 (1984) ................................................................................... 8


Statutes, Rules, Constitutions

TEX. CODE CRIM. PROC. art. 14.04................................................................ 8

TEX. CODE CRIM. PROC. art. 18.16................................................................ 7

TEX. CODE CRIM. PROC. art. 38.23........................................................ 14, 16

TEX. PENAL CODE § 1.07 ............................................................................ 14

TEX. PENAL CODE § 49.04 ........................................................................ 2, 7

TEX. PENAL CODE § 49.09 ........................................................................ 2, 7

TEX. TRANS. CODE § 524.012 ....................................................................... 9

TEX. TRANS. CODE § 724.012 ..............................................................passim

TEX. R. APP. P. 66.3 .................................................................................... 6

U.S. CONST. amend. IV ......................................................................... 8, 11




                                                    vii
                          IN THE COURT
                  OF CRIMINAL APPEALS OF TEXAS

TROY SCOTT BURCIE,                   §
    APPELLANT                        §
                                     §
V.                                   §     PD-0723-15
                                     §
THE STATE OF TEXAS,                  §
    APPELLEE                         §



          STATE’S PETITION FOR DISCRETIONARY REVIEW


TO THE HONORABLE JUDGES OF
THE COURT OF CRIMINAL APPEALS:

     Comes now the State of Texas, by and through her Tarrant County

Criminal District Attorney, and respectfully urges this Court to grant

discretionary review of this cause in accordance with the rules of appellate

procedure.

             STATEMENT REGARDING ORAL ARGUMENT

     Although the reasonableness of statutory mandatory blood draws

merits argument, this Court has already granted petitions on similar issues

and heard arguments from other parties regarding the issues discussed

herein. Hence, the State does not request argument in this case.




                                     1
                             STATEMENT OF THE CASE

        Appellant pled guilty to felony driving while intoxicated [DWI]. TEX.

PENAL CODE §§ 49.04, 49.09. 1 (CR1:87–91, 93–94). At the time of the

offense, officers seized Appellant’s blood pursuant to the mandatory blood

draw contained in Texas’ implied consent law.                      TEX. TRANSP. CODE

§724.012(b)(3). Before the El Paso Court of Appeals, Appellant relied on

the Supreme Court’s McNeely decision. Missouri v. McNeely, 569 U.S.

___, 133 S. Ct. 1552 (2013). The germane facts are undisputed, that is,

that the State relied on Texas’ mandatory blood-draw statute to support the

instant warrantless seizure. (2RR).

        Appellant’s claim stems from an adverse pretrial ruling. (1CR at 93–

95). Following the May 2013 suppression hearing, the trial judge rejected

the defense argument attacking the validity of blood seized pursuant to the

Texas implied-consent statute.              (1CR at 21, 81–82; 2RR at 5, 61).

Appellant later pled guilty pursuant to an agreement with the prosecution;

this appeal ensued. (1CR at 93–95).

       STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE

        The El Paso Court of Appeals reversed the trial court’s suppression

ruling in an unpublished opinion authored by Chief Justice Ann Crawford

1
    Statutory references cited throughout refer to the current version unless noted.
                                              2
McClure; Justices Rodriguez and Hughes rounded out the panel. Burcie v.

State, No. 08-13-00212-CR, 2015 WL 2342876 (Tex. App.—Fort Worth

Mar. 14, 2015).    No one sought rehearing.    The State timely files this

petition, following one extension.



                         STATEMENT OF FACTS

      Appellant’s felony DWI arose when an officer saw him driving without

his headlamps illumined. (2RR at 7–8). After the stop, the Fort Worth

officer discovered facts leading him to believe that Appellant drove while

intoxicated (slurred speech, bloodshot eyes, aroma of alcohol). (2RR at 8–

13). In the subsequent DWI investigation, the arresting officer sought a

mandatory specimen under the Texas implied-consent law because: 1) he

harbored probable cause to believe that Appellant committed DWI; 2) he

had received reliable information regarding Appellant’s two prior DWI

convictions; and 3) Appellant refused to provide a specimen. (2RR at 12–

13, 15–17, 19, 28–31). Therefore, an officer transported Appellant to the

county hospital for a compelled blood draw.          TEX. TRANSP. CODE

§ 724.012(b)(3). (2RR at 18–22, 25–26, 32–38; 3RR at SX2, SX3).

      Additional evidence revealed that Fort Worth police officers have

experience obtaining blood draw warrants and procedures in place to

                                     3
facilitate such warrants.   (2RR at 26–27, 33, 50–52).      However, the

arresting officer did not seek a warrant because he relied on the existing

mandatory provisions of the Texas implied-consent statute. (2RR at 19,

27, 29, 36).




                QUESTIONS PRESENTED FOR REVIEW

                   FIRST QUESTION FOR REVIEW
           Does a warrantless, nonconsensual blood draw
         conducted pursuant to TEX. TRANSP. CODE § 724.012(b)
                   violate the Fourth Amendment?
                   (1CR at 21, 81–82; 2RR at 5, 61)


                  SECOND QUESTION FOR REVIEW
        Are Fourth Amendment warrant-preference exceptions
       the sole measure of Fourth Amendment reasonableness
                      in warrantless scenarios?
                   (1CR at 21, 81–82; 2RR at 5, 61)

                    THIRD QUESTION FOR REVIEW
       Do exclusionary rule principles mandate suppression of
       blood evidence seized via a warrantless, nonconsensual,
               valid-at-the-time mandatory blood draw?
                    (1CR at 21, 81–82; 2RR at 5, 61)




                                    4
                        ARGUMENT AND AUTHORITIES

      This Court is in the midst of grappling with the issues presented

herein.   Whilst a November 2014 decision addressed the merits of the

Fourth Amendment issue in one of the several McNeely-related cases then

pending, what appeared decided is now in flux since the Court granted –

2014 WL 6734178 (Tex. Crim. App. 2014) (reh’g granted, re-submitted

Mar. 18, 2015).2           The El Paso court’s May decision heavily relied on

this Court’s original Villarreal opinion. Burcie, 2015 WL 2342876, at *1–4.

      The State’s instant petition focuses on two aspects of any McNeely-

related consequences: the validity of a statutorily-compelled draw and the

invalidity of the exclusionary rule’s application. Villarreal only resolved the

merits of the mandatory-draw issue, not addressing the applicability of the



2
  Additionally, the appellate milieu includes six other submitted McNeely-inspired cases,
with yet another case granted and waiting in the wings for submission. Douds v. State,
434 S.W.3d 842 (Tex. App.—Houston [14th Dist.] June 5, 2014, pet. granted)
(submitted on arguments Mar. 13, 2015, PD-0857-14); Weems v. State, 434 S.W.3d
655 (Tex. App.—San Antonio 2014, pet. granted) (submitted on arguments Nov. 19,
2014, PD-0635-14); Reeder v. State, 428 S.W.3d 930 (Tex. App.—Texarkana 2014,
pet. granted) (submitted on arguments Jan. 14, 2015, PD-0601-14); Smith v. State, No.
13-11-00694-CR, ___ S.W.3d ___, 2014 WL 5901759 (Tex. App.—Corpus Christi 2014,
pet. granted) (submitted Apr. 29, 2015, PD-1615-CR); McGruder v. State, No. 10-13-
00109-CR, ___ S.W.3d ___, 2014 WL 3973089 (Tex. App.—Waco 2014, pet. granted)
(submitted Apr. 15, 2015, PD-1263-14); Holidy v. State, No. 06-13-00261-CR, 2014 WL
1722171 (Tex. App.—Texarkana Apr. 30, 2014, pet. granted) (mem. op., not designated
for publication) (submitted on arguments Jan. 14, 2015, PD-0622-14); see also Cole v.
State, 454 S.W.3d 89 (Tex. App.—Texarkana 2014, pet. granted Apr. 22, 2015)
(briefing in progress, PD-0077-15).

                                           5
exclusionary rule. Villarreal, 2014 WL 6734178. Nevertheless, that issue

is already before this Court. See Cole, 454 S.W.3d at 89 (fourth ground

granted); see also Weems, 434 S.W.3d at 666 (applying exclusionary rule);

Douds, 434 S.W.3d at 861–62 (same).          In other words, this Court has

already granted review on both issues presented herein.

      This Court should grant review because this case focuses on:

important legal questions that have not yet been finally addressed; matters

in conflict in the interim appellate courts; the misinterpretation of a Supreme

Court decision; and the misapplication of that Supreme Court case to

Texas implied-consent statute. TEX. R. APP. P. 66.3(a)(b)(c)(d)(f).

I.    Valid, compelled statutory blood draw

      The State’s appellate stance is in lockstep with that of prosecutors

from other counties across the State who have already had cases granted

for review on a McNeely-related issue. Hence, the State respectfully asks

this Court to dispose of the instant case in a manner consistent with the

petitions in Villarreal, Douds, Weems, Reeder, Smith, McGruder, Holidy,

and Cole. Here, the officer reasonably relied on an existing, ubiquitous

narrowly-focused, reasonable statute to obtain a compelled blood draw.

The seizure occurred when the officer—at the time of the offense—

possessed probable cause that Appellant’s impaired and intoxicated


                                      6
conduct constituted felony DWI. TEX. PENAL CODE §§ 49.04, 49.09; TEX.

TRANSP. CODE § 724.012(b)(2).

     In addition, the State differs with Villarreal’s original-submission

decision and further asserts that several important arguments should be

considered on the merits.

     A.    Codification of Fourth Amendment principles

     Villarreal failed to consider that the implied-consent statute codified

Fourth Amendment principles.      For instance, this Court has previously

recognized a statutory codification of the exigency exception. See Miles v.

State, 241 S.W.3d 28, 39–40 n.54 (Tex. Crim. App. 2007) (citing TEX. CODE

CRIM. PROC. art. 18.16). McNeely recognized that every case involving the

dissipation of alcohol included some exigency. McNeely, 133 S. Ct. at

1561, 1568.     This ever-present exigency must be considered when

assaying the reasonableness of statutory draws.

     Combine the static alcohol-evaporation-exigency consideration with

the Legislature’s clear codification of the gravity-of-the-offense exigency.

The implied-consent statute extinguished a defendant’s right to refuse

where an officer possesses probable cause to believe that certain

enumerated, egregious circumstances exist.           TEX. TRANSP. CODE

§ 724.012(b).   Defendants only lose their refusal right under carefully


                                     7
circumscribed scenarios involving felonious intoxication-related offenses

and/or resultant injuries necessitating hospitalization. Id.       The statute only

applies to the most serious categories of DWI offenders.

      This statutory limitation amounts to a codification of an additional

recognized exigency unrelated to blood-alcohol dissipation.               Welsh v.

Wisconsin held that the Fourth Amendment authorizes common-sense

consideration of the underlying offense’s gravity when weighing the

existence of an exigency.      Welsh v. Wisconsin, 466 U.S. 740, 751–52

(1984) (exigency calculations include consideration of a crime’s severity).

Consideration of a crime’s gravity is the essence of reasonableness

because the State’s interest is greater in a more serious case. Cf. TEX.

CODE CRIM. PROC. art. 14.04 (authorizing warrantless arrests for felonies

where an officer did not observe the offense).

      Of course, it almost goes without saying that Texas’ implied-consent

legislation codified Fourth Amendment probable cause requirements. U.S.

CONST. amend. IV. Predicate elements of the implied consent statute

codify this well-known quantum-of-evidence as a requirement for a

compelled search. TEX. TRANSP. CODE § 724.012(b). The probable cause

requirement—in     tandem    with   the    codified       gravity-of-the-crime   and

dissipation-of-alcohol   exigencies—creates           a     neutral,   non-arbitrary

                                       8
framework authorizing a narrowly-defined seizure from an already-in-

custody arrestee.    These refinements in the implied-consent statutes

structure embrace the essence of Fourth Amendment reasonableness.

     B.      Special-needs framework adds to the reasonableness
             calculation

     The now-withdrawn Villarreal decision rejected application of the

Supreme Court’s special needs doctrine to the mandatory blood draw

framework.     Villarreal, 2014 WL 6734178, at *14–15; see Skinner v.

Railway Labor Executives’ Ass’n, 489 U.S. 602, 619 (1989). However, the

Court did not consider that blood drawn pursuant to Chapter 724’s mandate

also implicates administrative license revocation [ALR] procedures, a

separate regulatory process that focuses on protecting the traveling public

by removing offenders from the road.             See TEX. TRANSP. CODE

§ 524.012(b)(1) (mandating license suspension based upon BAC).

     “The primary purpose of the administrative license suspension statute

is not to deter the licensee or to seek retribution, but to protect the public

from the carnage on the public roads of Texas caused by drunk drivers.”

Tharp v. State, 935 S.W.2d 157, 159 (Tex. Crim. App. 1996).             Such

regulation focuses on the government’s strong interest in removing

intoxicated drivers from the road, just as railroad regulation in Skinner



                                      9
sought to increase railway safety by detecting intoxicated employees.

Compare Skinner, 489 U.S. at 620–21 with Tharp, 935 S.W.2d at 159.

     Special needs’ principles recognize the statute’s provision of a

neutral, detached vehicle for protecting citizens from impaired drivers and

defendants from unfettered discretion.      The special-needs exception

constitutes another factor to consider in a non-dualistic analysis that

renders Texas’ compelled-draw framework reasonable.

     C.    Erroneous consideration of the “Less Intrusive
           Means” test

     The original Villarreal decision considered the ready availability of

warrants when rejecting the validity of Texas’ mandatory draw statute.

Villarreal, 2014 WL 6734178, at *18 (finding no compelling need to uphold

warrantless, nonconsensual blood searches where warrants are “often

readily available”). However, factors such as electronic warrants and the

availability of a magistrate shift the focus away from an officer’s conduct

and, instead, weigh considerations of alternative means. But see McNeely,

133 S. Ct. at 1560–64 (Part IIB’s alternative means analysis applied when

determining whether per se exigency existed).

     The Supreme Court resoundingly rejected applying less-intrusive-

alternative-practices arguments to Fourth Amendment cases not resolved

under the exigency exception. Vernonia School Dist. 47J v. Acton, 515
                                    10
U.S. 646, 663–64 n.3 (1995) (upholding warrantless, random urine

screening     of    athletes      after      considering    diminished    privacy,

unobtrusiveness, and severity of need, spurning arguments relying on less

intrusive alternatives); Skinner, 489 U.S. at 629 n.9 (upholding random,

suspicionless drug screening of railway employees under special needs

exception     and        discarding       less-drastic-and-equally-effective-means

arguments).    One footnote in Skinner flatly debunks the propriety of

considering less-drastic alternatives in scenarios that include warrantless

and even suspicionless seizures for toxicological testing, similar to

Appellant’s facts. Id.

      The State maintains that less-restrictive-alternatives logically apply

when a seizure’s validity rests solely on the temporal factors presenting an

exigency; less-drastic, post-hoc what-ifs do not apply, however, to

reasonableness calculations factoring in other warrantless exceptions.

Hence, Villarreal’s analysis mistakenly applied this eschewed construct.

II.   Implied-consent draws are reasonable

      Reasonableness has always been the linchpin of the Fourth

Amendment, venerated in the provision’s plain language.              U.S. CONST.

amend IV; Hulit v. State, 982 S.W.2d 431, 435–36, 438 (Tex. Crim. App.

1998). Discernment of what is “reasonable” requires courts to consider the


                                           11
balance between an individual’s privacy and legitimate governmental

interests, especially when public safety is of utmost concern.          See

Maryland v. King, 569 U.S. ___, 133 S. Ct. 1958, 1979 (2013); Michigan

Dept. of State Police v. Sitz, 496 U.S. 444, 455 (1990); Segundo v. State,

270 S.W.3d 79 (Tex. Crim. App. 2008), cert. denied, 558 U.S. 828 (2009).

Villarreal viewed the choice between applying a Fourth Amendment

exception and consideration of a reasonableness balancing approach as

mutually exclusive analytical constructs. The State respectfully believes

that this black-white consideration of these two concepts is mistaken,

especially in light of the fact that this Court has relied upon the balancing

approach to assay reasonableness on similar issues. See Segundo, 270

S.W.3d at 96–99; McGee v. State, 105 S.W.3d 609 (Tex. Crim. App. 2003);

Hulit, 982 S.W.2d at 434 n.1, 436.

     Again, the statute is reasonable.     Years ago, the Supreme Court

recognized that a framework requiring a driver’s consent was anything but

nonsensical.   The Breithaupt court pointed to then recently adopted

implied-consent provisions and wrote:

     It might be a fair assumption that a driver on the highways in
     obedience to a policy of the State, would consent to have a
     blood test made as part of a sensible and civilized system
     protecting himself as well as other citizens not only from the
     hazards of the road due to drunken driving, but also from some
     use of dubious lay testimony.
                                     12
Breithaupt v. Abram, 352 U.S. 432, 435 n.2 (1957). The State contends

that compelled draws under implied-consent provisions are inherently

reasonable when weighing the needs of all involved.               Indeed, Fourth

Amendment reasonableness underpins the statute.                  The well-known

exceptions—as argued in the myriad cases already before this Court—

considered individually and in concert with each other, alongside a

balancing of the competing interests, all support the continued viability of

Texas’ implied-consent framework.

III.   Exclusionary rule inapplicable and not invoked 3

       Statutory mandatory blood-draws are reasonable. But see Villarreal,

2014 WL 6734178 (opinion on original submission; under re-submission).

When the ink dries on Villarreal and future McNeely-related decisions and if

those cases are adverse to the State on the merits, the rules requiring

evidence exclusion should not apply to mandatory blood-draw scenarios

that occurred prior to the Supreme Court’s April 2012 pronouncement.

       Federally, the good-faith exception to the Fourth Amendment’s

exclusionary rule applies when law enforcement, at the time of the search,

3
 Although unnecessary for preservation purposes, the State notes that it voiced this
exclusionary rule argument below. See Sotelo v. State, 913 S.W.2d 507, 510 (Tex.
Crim. App. 1995). The El Paso Court refrained from considering this issue, however.
Burcie, 2015 WL 2342876, at *1-4.


                                        13
acted with objectively reasonable reliance on (1) a statute, later declared

unconstitutional, or (2) binding judicial precedent, subsequently overruled.

Illinois v. Krull, 480 U.S. 340, 349–57 (1987) (statutes); Davis v. United

States, 564 U.S. ___, 131 S. Ct. 2419, 2428–34 (2011) (caselaw).

      Under state law, the Texas exclusionary rule is not invoked

because—at the time of the offense—no violation occurred.            The State

recognizes that article 38.23(b)—Texas’ limited good faith exception—

requires a warrant. TEX. CODE CRIM. APP. § 38.23(b). Notwithstanding,

invocation of exclusionary rule principles relies on article 38.23(a). That

subsection’s plain language requires a violation for exclusion to be

triggered. When Appellant’s blood was drawn, no one credibly questioned

the validity of the officer’s statutory authority. In other words, at the time of

the seizure, the officer followed then-existing law. See TEX. CODE CRIM.

PROC. art. 38.23(a); see also TEX. PENAL CODE § 1.07(a)(30) (defining “law”

as meaning the state and federal constitution and statutes, in addition to

the written opinions of a court of record); see also Davis, 131 S. Ct. at

2427–28 (“obtained” applies to unlawfulness at the time of the seizure;

exclusion not triggered in an absence of police culpability). Simply put, the

instant circumstances do not invoke exclusion.




                                       14
      The Supreme Court mentioned, in dictum, the application of the

exclusionary rule versus Fourth Amendment violations in a non-blood-draw

scenario decided recently. In Heien, the Court weighed the validity of an

investigatory stop where the officer misunderstood the traffic code provision

he relied on to support the stop. See Heien v. North Carolina, ___ U.S.

___, 135 S. Ct. 530, 538–39 (2014). The Supreme Court considered the

reasonableness of the officer’s mistake that lead to the stop and arrest

when considering remedies. In so doing, the Court pointed out the myriad

decisions finding exclusionary-rule invocation inappropriate where the

officer’s conduct—valid at the time—was later declared unconstitutional.

Id.   With only one justice dissenting, the Supreme Court’s decision

pondered the exclusionary rule’s limits which had been briefly considered in

Michigan v. DeFillippo.     Heien, 135 S. Ct at 538–39; see generally

Michigan v. DeFillippo, 443 U.S. 31, 3–9 (1979) (suggesting that exclusion

might have been appropriate had the provision been “grossly and flagrantly

unconstitutional”).

      Although the Heien discussion is merely dicta, it reiterates the

importance of focusing on the fact that the instant officer’s conduct fully

complied with mandatory, settled law at the time of Appellant’s arrest.

Heien, 135 S. Ct. at 538–39.          McNeely and subsequent caselaw

                                     15
questioning implied-consent blood draws came later. Since, no violation

occurred at the time of the Appellant’s 2011 blood draw, Texas’

exclusionary provision does not apply.      TEX. CODE CRIM. PROC. art.

38.23(a). And since any legal error by the officer was reasonable, Fourth

Amendment cases do not mandate the remedy of exclusion. See Heien,

135 S. Ct. at 539.

                     CONCLUSION AND PRAYER

     Review should be granted and the decision of the Court of Appeals

should be reversed; Appellant’s felony DWI conviction should be upheld.

                                  Respectfully submitted,

                                  SHAREN WILSON
                                  Criminal District Attorney
                                  Tarrant County, Texas

                                  DEBRA WINDSOR, Assistant
                                  Criminal District Attorney
                                  Chief, Post-Conviction

                                  /s/ Tanya S. Dohoney
                                  TANYA S. DOHONEY
                                  Assistant Criminal District Attorney
                                  Tim Curry Criminal Justice Center
                                  401 W. Belknap
                                  Fort Worth, Texas 76196-0201
                                  (817) 884-1687
                                  FAX (817) 884-1672
                                  State Bar No. 02760900
                                  ccaappellatealerts@tarrantcountytx.gov


                                   16
                        CERTIFICATE OF COMPLIANCE

        This document complies with the typeface requirements of TEX. R.

APP. P. 9.4(e) because it has been prepared in a conventional typeface no

smaller than 14-point for text and 12-point for footnotes. This document

also complies with the word-count limitations of TEX. R. APP. P. 9.4 (i)

because it contains less than 3500 words, excluding any parts exempted

by TEX. R. APP. P. 9.4(i)(1), as computed by Microsoft Word, the computer

software used to prepare the document.

                                          /s/ Tanya S. Dohoney
                                          TANYA S. DOHONEY


                            CERTIFICATE OF SERVICE

        A true copy of the State's petition for discretionary review has been e-

served to opposing counsel, the Hon. Abe Factor, lawfactor@yahoo.com,

5719 Airport Freeway, Fort Worth, Texas, 7611, on this, the 15th day of July

2015.

                                          /s/ Tanya S. Dohoney
                                          TANYA S. DOHONEY




H:\DOHONEY.D11\PDRS\063015 burcie mcneely pdr and tables.docx




                                            17
       APPENDIX

Troy Scott Burcie v. State,
    2015 WL 2342876
(Tex. App.—El Paso 2015)




            A
Burcie v. State, Not Reported in S.W.3d (2015)




                                                              indicted for felony DWI, having had two prior
                2015 WL 2342876                               convictions. The indictment arose out of Appellant’s
  Only the Westlaw citation is currently available.           arrest on July 2, 2012. Officer Reyes of the Fort Worth
                                                              Police Department initiated a traffic stop when he
  SEE TX R RAP RULE 47.2 FOR DESIGNATION                      observed Appellant driving without headlights at 10:10
         AND SIGNING OF OPINIONS.                             p.m. in the evening.1 Based on Appellant’s slurred speech,
                                                              bloodshot eyes, and the odor of alcohol, Officer Reyes
                (DO NOT PUBLISH)                              performed a field sobriety test. Appellant gave six of six
              Court of Appeals of Texas,                      positive clues for intoxication on the horizontal gaze
                       El Paso.                               nystagmus test; eight of eight clues on the walk and turn
                                                              test; and three of seven clues on standing on one leg test.
             Troy Scott Burcie, Appellant,
                                                              Appellant claimed at the time to have had “one beer with
                           v.
                                                              dinner.”
             The State of Texas, Appellee.

        No. 08–13–00212–CR | May 14, 2015                     1
                                                                     This case was transferred from our sister court in Fort
                                                                     Worth pursuant to the Texas Supreme Court’s docket
                                                                     equalization efforts. See Tex. Gov’t Code Ann. §
Appeal from 371st District Court of Tarrant County,                  73.001 (West 2013). We follow the precedents of the
Texas (TC # 1287926D)                                                Fort Worth Court to the extent they might conflict with
                                                                     our own. See Tex.R.App. P. 41.3.
Attorneys and Law Firms

Charles M. Mallin, Tanya S. Dohoney, for The State of         The officer placed Appellant under arrest at 10:50 p.m. A
Texas.                                                        pat down search turned up a prescription pill bottle
                                                              belonging to Appellant, but which contained a
Abe Factor, Tim Robinson, for Troy Scott Burcie.              non-matching medication identified as OxyContin. The
                                                              officer transported Appellant to the City jail where a
Before McClure, C.J., Rodriguez, and Hughes, JJ.
                                                              blood sample was requested, but refused by Appellant. A
                                                              criminal history check turned up two prior DWIs.

                                                              Based on the two prior DWIs, and Section 742 of the
                        OPINION                               Transportation Code, the officer took Appellant to a local
                                                              hospital where a blood sample was taken without his
                                                              consent at 12:19 a.m. Officer Reyes’ testimony makes
ANN CRAWFORD McCLURE, Chief Justice                           clear that the Transportation Code was the single basis for
                                                              obtaining the blood draw:
*1 This DWI case presents an issue which has percolated
through the courts of appeals, and which now has been              Q. Okay. And is it your understanding that—or tell
resolved by the Texas Court of Criminal Appeals: can the           me why you were going to get a blood specimen
State, consistent with the Fourth Amendment to the U.S.            from him.
Constitution, take an involuntary blood sample based only
upon     the     Texas     implied      consent    statute?        A. Well, at that point he was—he already had two
TEX.TRANSP.CODE ANN. § 724.012(b)(West 2011).                      prior convictions. He was arrested for DWI. So at
Following the Texas Court of Criminal Appeals recent               that time we—it’s a mandatory specimen. Even
answer to that question in State v. Villarreal, No.                though he—he did not want to provide one, we have
PD–0306–14, 2014 WL 6734178 (Tex.Crim.App. Nov.                    to, by law at the time, get one from him, and that’s
26, 2014, pet.granted), we reverse the conviction below.           what we were doing.

                                                                   Q. Okay. And so you were following what you
                                                                   believed to be the law in requiring you to get a blood
                                                                   specimen?
                FACTUAL SUMMARY
                                                                   A. Yes, ma’am.
The underlying facts are uncontested. Appellant was
               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                       1
Burcie v. State, Not Reported in S.W.3d (2015)



Fort Worth has a procedure in place to obtain a warrant         time to seek out a magistrate and secure a warrant. Id.
during the late night hours, but Officer Reyes did not          Noting these “special facts” the court agreed the
utilize it because of Section 724 of the Transportation         involuntary blood draw was appropriate. Id.
Code
                                                                The court revisited the involuntary blood draw issue in
Appellant filed a motion to suppress the blood sample           Missouri v. McNeely where the State of Missouri
claiming that a warrantless blood draw violated the Fourth      contended that the singular fact that alcohol dissipates
Amendment, particularly in light of the U.S. Supreme            from the body was sufficient by itself to create an exigent
Court’s recent decision in Missouri v. McNeely, 569 U.S.        circumstance justifying a warrantless seizure of a
––––, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013). The State         defendant’s blood. 133 S.Ct. at 1560. A plurality of the
responded by arguing that the actual holding of McNeely         court disagreed. It rejected a per se rule, instead
was narrow and not at issue in this case. It further asserted   reaffirming that whether the exigent circumstances
that a number of exceptions to the Fourth Amendment,            exception is met must be judged on the totality of
including an implied consent exception under the                circumstances on a case by case basis. Id. at 1561. The
Transportation Code, the “special needs” exception, the         court also explicitly stated that a warrantless blood draw
“search incident to arrest” exception, the automobile           must fall under one of the recognized exceptions to the
exception, and a cumulative “non-dualistic” exception to        Fourth Amendment. Id. at 1558.
the Fourth Amendment justified the officer’s actions. The
trial court denied the motion to suppress without findings      The Texas courts of appeals grappled with whether
of fact or conclusions of law.                                  Missouri v. McNeely invalidated non-consensual blood
                                                                draws taken under the Texas Transportation Code. The
*2 Appellant then entered a guilty plea, reserving the          Code mandates blood draws when an officer arrests a
ruling on the suppression motion for appeal. He was             person for DWI and the person is either involved in an
sentenced to two years in prison and assessed a fine. In a      accident involving serious injury or death, or that person
single issue, Appellant contends the trial court abused its     has two or more prior convictions for DWI.
discretion in upholding the involuntary blood draw in           TEX.TRANSP.CODE ANN. § 724.012(b).2 The courts of
light of McNeely. The State responds, as it did below,          appeals have uniformly rejected the State’s various
contending McNeely is inapplicable, and justifying the          arguments attempting to distinguish McNeely or apply
involuntary blood draw on several exceptions to the             other exceptions to work around it. See Aviles v. State,
Fourth Amendment: implied consent, search incident to           443 S.W.3d 291 (Tex.App.–San Antonio, 2014, pet.
arrest, and the “cumulative, non-dualistic approach to          filed); Sutherland v. State, 436 S.W.3d 28
exceptions and reasonableness.”                                 (Tex.App.–Amarillo 2014, pet. filed); Douds v. State, 434
                                                                S.W.3d 842 (Tex.App.–Houston [14th Dist.] 2014, pet.
                                                                granted); Weems v. State, 434 S.W.3d 655 (Tex.App.–San
                                                                Antonio 2014, pet. granted); Holidy v. State, No.
                                                                06–13–00261–CR,            2014        WL         1722171
                       ANALYSIS                                 (Tex.App.–Texarkana Apr. 30, 2014, pet. granted)(mem.
                                                                op., not designated for publication).3
The United States Supreme Court in Schmerber v.
California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908         2
(1966) held that an involuntary blood draw could pass                  Germane to this case. Section–724.012(b) provides:
                                                                         (b) A peace officer shall require the taking of a
Fourth Amendment scrutiny. The court first
                                                                         specimen of the person’s breath or blood under any
acknowledged that taking blood from a person constituted                 of the following circumstances if the officer arrests
a search and seizure under the Fourth Amendment. Id. at                  the person for an offense under Chapter 49, Penal
767. But the involuntary blood draw was reasonable                       Code, involving the operation of a motor vehicle ...
under the exigent circumstances exception to the Fourth                  and the person refuses the officer’s request to submit
Amendment based on three facts established by the record                 to the taking of a specimen voluntarily:
in that case. Id. at 770–71. First, the court acknowledged               (3) at the time of the arrest, the officer possesses or
that the percentage of alcohol in the blood begins to drop               receives reliable information from a credible source
after a person stops drinking because the body eliminates                that the person:
it from the system (thus causing the destruction evidence).
Id. Second, there was already a delay in taking the
accused to the hospital because the officer had to              3
                                                                       We note that the trial court here heard the motion to
investigate the scene of the accident where the accused                suppress on May 31, 2013 which was little more than a
was found. Id. Finally, the Court states that there was no
                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                          2
Burcie v. State, Not Reported in S.W.3d (2015)



       month after McNeely was handed down, and the trial                        general     Fourth      Amendment
       court did not have the benefit of any of the recent cases                 balancing test.
       construing McNeely and the Transportation Code.
                                                                   Id. at *20.

*3 Any remaining doubt about these issues was resolved             The only distinguishing feature between Villarreal and
by the Texas Court of Criminal Appeals decision in State           this case is that in Villarreal the trial court granted the
v. Villarreal, No. PD–0306–14, 2014 WL 6734178                     motion to suppress and here the trial court denied it.
(Tex.Crim.App. Nov. 26, 2014, pet.granted). In                     Under the applicable standard of review, we do afford
Villarreal, an officer initiated a traffic stop and in             almost total deference to the trial court’s determination of
questioning the driver, found him to have slurred speech,          the historical facts that the record supports. Guzman v.
red, watery eyes, and the strong smell of alcohol. Id. at          State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). When the
*1. The driver refused to take the standard field sobriety         trial court is not asked to make findings of fact and
tests. Id. When a background check showed the driver had           conclusions of law, we view the evidence in the light
several prior DWI convictions, the arresting officer took          most favorable to the trial court’s ruling and assume that
the driver to a hospital for a blood draw, despite the             the trial court made implicit findings of fact that support
driver’s non-consent. Id. at *2. The officer viewed the            its ruling as long as those findings are supported by the
Transportation Code as mandating the blood draw, and               record. Carmouche v. State, 10 S.W.3d 323, 328
while he “could have” obtained a warrant, he believed              (Tex.Crim.App.2000). We also afford the same amount of
that the statute made a warrant unnecessary. Id. We view           deference to a trial courts’ rulings on the application of
these facts as indistinguishable from Appellant’s                  the law to the facts—so called mixed questions of law and
situation.                                                         fact—if resolution of those questions turns on an
                                                                   evaluation of credibility and demeanor. Guzman, 955
The trial court in Villarreal held the blood draw improper.        S.W.2d at 89. But we review de novo “mixed questions of
Id. at *3. The court of appeals affirmed and the Texas             law and fact” not falling within this category. Id. In
Court of Criminal Appeals squarely confronted the State’s          Villarreal, for instance, the Court of Criminal Appeals
implied consent argument under the Transportation Code.            noted that it reviewed the trial court’s ruling de novo
Id. at *6. It also addressed the State’s (B) on two or more        because the underlying facts were not disputed. 2014 WL
occasions, has been previously convicted of or placed on           6734178 at *10.
community supervision for an offense under Section
49.04 [misdemeanor DWI].... alternative arguments that             In this case, there are also no disputed facts, at least none
the automobile, search incident to arrest, and special             that would implicate any of the Fourth Amendment
needs exceptions to the Fourth Amendment applied. Id. at           exceptions raised by the State. Each of the exceptions to
*14–15. Lastly the court addressed the State’s claim that a        the Fourth Amendment that the State urges in this case
general Fourth Amendment balancing test could justify              were expressly rejected by the Texas Court of Criminal
the involuntary blood draw. Id. at *16. The Court rejected         Appeals in Villarreal.4 Only the exigent circumstances
each of the State’s proffered basis for the blood draw,            exception was not at issue in Villarreal, 2014 WL
concluding:                                                        6734178 *9. But none of the facts in this record supports
                                                                   the kind of exigent circumstances that the U.S. Supreme
            We hold that the provisions in the                     Court found sufficient in Schrimer. Appellant was
            Transportation Code do not, taken                      detained in a traffic stop and not an accident as in
            by      themselves,       form      a                  Schrimer. He was transported to a hospital less than two
            constitutionally valid alternative to                  hours later for the blood draw. There was no indication
            the Fourth Amendment warrant                           that a magistrate judge was not available to issue a
            requirement. We thus reject the                        warrant had Officer Reyes pursued one.
            State’s assertion that a warrantless,
                                                                   4
            nonconsensual        blood      draw                           One exception urged here, the “cumulative,
            conducted pursuant to those                                    non-dualistic     approach     to    exceptions   and
            provisions can fall under one of the                           reasonableness” appears to us to be the same “general
            established exceptions to the                                  Forth Amendment balancing test” rejected by the Court
                                                                           of Criminal Appeals in Villarreal. To the extent it is
            warrant requirement described                                  meant to be something different, the State’s one page
            above, and we further reject the                               presentation of that argument here cites no cases
            State’s suggestion that such a                                 establishing it as distinct exception under the Fourth
            search may be upheld under a                                   Amendment. All of the other exceptions advanced by

                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           3
Burcie v. State, Not Reported in S.W.3d (2015)



       the State are identically worded to those expressly            us because in this transferred case, we are bound to follow
       rejected in Villarreal.                                        the precedents of the transferring court of appeals. See
                                                                      TEX.R.APP.P. 41.3.

                                                                      We accordingly sustain Appellant’s single issue and we
*4 We also note that following Villarreal, the Fort Worth
                                                                      reverse the trial court’s order denying Appellant’s motion
Court of Appeals decided Burks v. State, 454 S.W.3d 705
                                                                      to suppress and the trial court’s judgment of conviction,
(Tex.App.–Fort Worth 2015, pet. filed) which overturned
                                                                      and remand the case to the trial court for further
a trial court’s denial of a motion to suppress. The
                                                                      proceedings consistent with this opinion.
defendant in that case, as here, was pulled over for a
traffic violation, found to have overt signs of intoxication,
and was taken for an involuntary blood draw because he
had two or more prior convictions for DWI. Id. at 707.                All Citations
The officer believed the implied consent provisions of the
Transportation Code permitted the blood draw. Id. Based               Not Reported in S.W.3d, 2015 WL 2342876
on Villarreal, the Fort Worth Court reversed the trial
court order denying the motion to suppress and the
conviction. Id. at 708. Burks is particularly instructive to
  End of Document                                               © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              4
