                                                                                 PD-1011-15
                                                               COURT OF CRIMINAL APPEALS
                                                                               AUSTIN, TEXAS
                                                               Transmitted 8/5/2015 3:04:12 PM
AUGUST 7, 2015
                                                                Accepted 8/7/2015 10:53:51 AM
                                                                                ABEL ACOSTA
                               No. 01-14-00112-CR                                       CLERK

                     TO THE COURT OF CRIMINAL APPEALS

                           OF THE STATE OF TEXAS


MICHAEL D. HOWARD
A/K/A MICHAEL DAVID HOWARD,                                          Appellant

v.

THE STATE OF TEXAS,                                                   Appellee



                          Appeal from Tom Green County

                                   * * * * *

                 STATE’S PETITION FOR DISCRETIONARY REVIEW


                                   * * * * *



                                LISA C. McMINN
                            State Prosecuting Attorney
                              Bar I.D. No. 13803300

                            STACEY M. GOLDSTEIN
                        Assistant State Prosecuting Attorney
                               Bar I.D. No. 24031632

                                  P.O. Box 13046
                                Austin, Texas 78711
                            information@spa.texas.gov
                            512-463-1660 (Telephone)
                                512-463-5724 (Fax)
           IDENTITY OF JUDGE, PARTIES, AND COUNSEL

*   The parties to the trial court’s judgment are the State of Texas and Appellant,
    Michael D. Howard a/k/a Michael David Howard

*   The trial judge was the Hon. Tom Gossett, 391st Judicial District.

*   Counsel for the State at trial and before the Court of Appeals was Meagan
    White, Assistant District Attorney, Tom Green County, 123 West Beauregard,
    San Angelo, Texas 76903.

*   Counsel for the State before the Court of Criminal Appeals is Stacey M.
    Goldstein, Assistant State Prosecuting Attorney, P.O. Box 13046, Austin,
    Texas 78711.

*   Counsel for Appellant at trial was Evan Pierce-Jones, 125 South Washington
    Street, San Angelo, Texas 76901.

*   Counsel for Appellant before the Court of Appeals was John E. Sutton, P.O.
    Box 871, San Angelo, Texas 76902.
                                       TABLE OF CONTENTS

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

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

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-2

STATEMENT OF PROCEDURAL HISTORY. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

GROUNDS FOR REVIEW.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

1.      Is a warrantless, mandatory blood draw conducted pursuant to T EX.
        T RANS. C ODE § 724.012(b)(3)(B)—the repeat offender provision—
        reasonable under the Fourth Amendment?

2.      Do the federal and state (T EX. C ODE C RIM. P ROC. art. 38.23) exclusionary
        rules require suppression when, at the time of the search, the warrantless
        blood draw was authorized by T EX. T RANS. C ODE § 724.012(b)(3)(B) and
        binding caselaw?

ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3-4

PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

APPENDIX (Opinion of the Court of Appeals)




                                                          i
                                        INDEX OF AUTHORITIES

Cases

Cole v. State, PD-0077-15 (granted Apr. 22, 2015).. . . . . . . . . . . . . . . . . . . . 3 n.1, 4

Douds v. State, PD-0857-14 (granted Sept. 17, 2014; argued and submitted Mar. 18,
2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Holidy v. State, No. PD-0622-14 (granted Aug. 20, 2014; argued and submitted Jan.
14, 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Howard v. State, No. 01-14-00112-CR, 2015 Tex. App. LEXIS 7635 (Tex.
App.—Houston [1st] July 23, 2015) (not designated for publication). . . . . . . . . 2-3

Missouri v. McNeely, 133 S. Ct. 1552 (2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Reeder v. State, No. PD-0601-14 (granted Aug. 20, 2014; argued and submitted Jan.
15, 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

State v. Villarreal, PD-0306-14, 2014 Tex. Crim. App. 1898 (Tex. Crim. App. Nov.
26, 2014) (reh’g granted Feb. 25, 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Weems v. State, No. PD-0635-14 (granted Aug. 20, 2014; argued and submitted Nov.
17, 2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 n.1

Statutes

T EX. C ODE C RIM. P ROC. art. 38.23. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

T EX. T RANS. C ODE § 724.012(b)(3)(B). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1




                                                               ii
                              No. 01-14-00112-CR

                  TO THE COURT OF CRIMINAL APPEALS

                          OF THE STATE OF TEXAS


MICHAEL D. HOWARD
A/K/A MICHAEL DAVID HOWARD,                                              Appellant

v.

THE STATE OF TEXAS,                                                       Appellee



                        Appeal from Tom Green County


                                   * * * * *

          STATE’S PETITION FOR DISCRETIONARY REVIEW

                                   * * * * *

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

     The State Prosecuting Attorney respectfully urges this Court to grant review.

             STATEMENT REGARDING ORAL ARGUMENT

      The State does not request oral argument.

                        STATEMENT OF THE CASE

     The trial court denied Appellant’s suppression motion that challenged the

warrantless draw of his blood under T EX. T RANS. C ODE § 724.012(b)(3)(B)—the

                                        1
repeat offender provision—based on the Supreme Court’s then-recent decision in

Missouri v. McNeely, 133 S. Ct. 1552 (2013). 1 CR 82-86, 97-102, 105-07. A jury

later found him guilty of felony DWI and sentenced him to sixteen years’

imprisonment. 1 CR 147-49.

                 STATEMENT OF PROCEDURAL HISTORY

      The court of appeals reversed the denial of Appellant’s motion to suppress and,

after concluding that the denial was harmful, reversed the trial court’s judgment.

Howard v. State, No. 01-14-00112-CR, 2015 Tex. App. LEXIS 7635 (Tex.

App.—Houston [1st] July 23, 2015) (not designated for publication). The State did

not seek rehearing.

                           GROUNDS FOR REVIEW

1.    Is a warrantless, mandatory blood draw conducted pursuant to T EX.
      T RANS. C ODE § 724.012(b)(3)(B)—the repeat offender provision—
      reasonable under the Fourth Amendment?

2.    Do the federal and state (T EX. C ODE C RIM. P ROC. art. 38.23) exclusionary
      rules require suppression when, at the time of the search, the warrantless
      blood draw was authorized by T EX. T RANS. C ODE § 724.012(b)(3)(B) and
      binding caselaw?




                                         2
                                     ARGUMENT

         Concluding that the blood draw was unreasonable, the court of appeals reversed

the trial court’s denial of Appellant’s suppression motion. Howard, 2015 Tex. App.

LEXIS 7635, at *1, 12. It held that Section 724.012(b)(3)(B) does not constitute a

valid a exception to the warrant requirement. Id. at *6-8. Regarding the remedy, the

court determined that the federal and state exclusionary rules require that the blood

test results be suppressed. Id. at *8-11.

1.       The draw was reasonable under the Fourth Amendment.

         The warrantless blood draw, conducted under Section 724.012(b)(3)(B), was

reasonable under Fourth Amendment jurisprudence. Review should be granted

because the same issue is pending on rehearing in State v. Villarreal, PD-0306-14,

2014 Tex. Crim. App. 1898 (Tex. Crim. App. Nov. 26, 2014) (reh’g granted Feb. 25,

2015), and in Holidy v. State, No. PD-0622-14 (granted Aug. 20, 2014; argued and

submitted Jan. 14, 2015), Reeder v. State, No. PD-0601-14 (granted Aug. 20, 2014;

argued and submitted Jan. 15, 2015), and Douds v. State, PD-0857-14 (granted Sept.

17, 2014; argued and submitted Mar. 18, 2015).1




     1
    Weems v. State, No. PD-0635-14 (granted Aug. 20, 2014; argued and submitted
Nov. 17, 2014), and Cole v. State, PD-0077-15 (granted Apr. 22, 2015), do not
implicate the repeat-offender provision.

                                            3
2.   Even if the Fourth Amendment was violated, the federal and state
     exclusionary rules do not require suppression because police relied on
     binding law authorizing the search at the time it was conducted.

     In Cole, PD-0077-15 (granted Apr. 22, 2015), this Court also granted review to

decide whether the remedy of suppression under the federal and state (T EX. C ODE

C RIM. P ROC. art. 38.23) exclusionary rules, which are intended to deter police

misconduct, is appropriate when the blood draw was conducted pursuant to a

presumptively valid statute and case law interpreting it. Therefore, for the reasons

asserted in Cole, this Court should hold that the remedy of suppression is not

warranted.




                                         4
                             PRAYER FOR RELIEF

      WHEREFORE, the State of Texas prays that the Court of Criminal Appeals

grant review and reverse the decision of the court of appeals.



                                        Respectfully submitted,

                                        LISA C. McMINN
                                        State Prosecuting Attorney
                                        Bar I.D. No.13803300


                                        /s/ STACEY M. GOLDSTEIN
                                        Assistant State Prosecuting Attorney
                                        Bar I.D. No. 24031632


                                        P.O. Box 13046
                                        Austin, Texas 78711
                                        information@spa.texas.gov
                                        512-463-1660 (Telephone)
                                        512-463-5724 (Fax)




                                          5
                      CERTIFICATE OF COMPLIANCE

      The undersigned certifies that according to the WordPerfect word count tool this

document contains 357 words, exclusive of the items excepted by T EX. R. A PP. P.

9.4(i)(1).




                                       /s/ STACEY M. GOLDSTEIN
                                       Assistant State Prosecuting Attorney




                                          6
                         CERTIFICATE OF SERVICE

      The undersigned certifies that a copy of the State’s Petition for Discretionary

Review has been served on August 5, 2015, via certified electronic service provider

or email to:

Hon. Meagan White
Tom Green County District Attorney’s Office
123 West Beauregard
San Angelo, Texas 76903
meagan.white@co.tom-green.tx.us

Hon. John E. Sutton
P.O. Box 871
San Angelo, Texas 76902
jsuttlaw@wcc.net




                                       /s/ STACEY M. GOLDSTEIN
                                       Assistant State Prosecuting Attorney




                                         7
APPENDIX
               MICHAEL D. HOWARD A/K/A MICHAEL DAVID
             HOWARD, Appellant v. THE STATE OF TEXAS, Appellee

                                    NO. 01-14-00112-CR

               COURT OF APPEALS OF TEXAS, FIRST DISTRICT,
                              HOUSTON

                               2015 Tex. App. LEXIS 7635


                             July 23, 2015, Opinion Issued

NOTICE:   PLEASE CONSULT THE                  contends that his conviction should be
TEXAS RULES OF APPELLATE                      reversed because the trial court erred in
PROCEDURE FOR CITATION OF                     denying his motion to suppress evidence
UNPUBLISHED OPINIONS.                         relating to the warrantless blood draw. We
                                              reverse the trial court's judgment and
PRIOR HISTORY:            [*1] On Appeal      remand for a new trial.
                                                                    2



from the 391st District Court, Tom Green
County, Texas. Trial Court Case No. D-12-          1    See T EX. P ENAL C ODE A NN. §§
1004-SB.                                           12.42(a), 49.09(b)(2) (West Supp.
                                                   2014) (third-degree felony enhanced
                                                   by prior felony conviction, thereby
JUDGES: Panel consists of Chief Justice            elevating punishment range to that of
Radack and Justices Brown and Lloyd.               second-degree felony).
                                                   2 This appeal, originally filed in the
OPINION BY: Russell Lloyd                          Third Court of Appeals, Austin,
                                                   Texas, was transferred to the First
OPINION                                            Court of Appeals, Houston, Texas.
                                                   See T EX. G OV'T C ODE A NN. § 73.001
MEMORANDUM OPINION                                 (West 2013) (authorizing transfer of
                                                   cases).
    A jury convicted appellant Michael D.
Howard a/k/a Michael David Howard of
                                              Background
felony driving while intoxicated. The trial
                                1



court assessed his punishment at sixteen         Howard was stopped for a traffic
years' confinement in the Institutional       violation and was subsequently arrested for
Division of the Texas Department of           DWI. After Howard refused to provide [*2]
Criminal Justice. On appeal, Howard           a breath specimen, the arresting officer
transported him to a hospital where a                         Miller, called Sergeant Scott and informed
warrantless blood draw was taken pursuant                     him that Howard had two previous DWI
to Texas Transportation Code section                          convictions and had refused to provide a
724.012(b)(3)(B). See T EX. T RANSP. C ODE                    breath specimen. At that point, Sergeant
A NN. § 724.012(b)(3)(B) (West 2011).                         Scott met Howard and Officers Miller and
Howard filed a motion to suppress the                         N. Anderson at the hospital where Sergeant
blood analysis results, challenging the                       Scott assisted the officers in conducting a
w arrantless blood draw on Fourth                             mandatory blood draw. Although Howard
Amendment grounds.         3
                                                              had agreed to provide a blood specimen at
                                                              the jail, he revoked his consent to the blood
      3        Howard also argued that the                    draw at the hospital. Sergeant Scott testified
      warrantless blood draw violated the                     that the officers did not attempt to obtain a
      Texas Constitution. T EX. C ONST. art. I,               warrant because once Howard refused to
      §§ 9, 10. We need not consider                          provide a breath specimen at the jail they
      whether the warrantless blood draw                      "had the mandatory blood draw in effect."
      violates the state constitution,                        Sergeant Scott testified that he believed that
      however, because Howard did not                         Howard's consent to the blood draw was
      separately brief his state and federal                  irrelevant in light of the mandatory blood
      constitutional issues or argue that the                 draw statute.
      Texas Constitution provides greater                         The trial court denied Howard's motion
      protection than the United States                       to suppress. In its findings of fact and
      Constitution. See Keehn v. State, 279                   conclusions of law, the trial court found that
      S.W.3d 330, 334 (Tex. Crim. App.                        there was no testimony as to any exigent
      2009) (not reaching defendant's state                   circumstances that required the drawing of a
      c o n s ti tu t i o n a l i s s u e r e g a r d i n g   blood specimen from [*4] Howard without
      warrantless search because defendant                    a search warrant and that the blood
      did not brief state and federal                         specimen obtained from Howard was
      constitutional issues separately);                      "mandated by C hapter 724, Texas
      Black v. State, 26 S.W.3d 895, 896                      Transportation Code." The trial court also
      (Tex. Crim. App. 2000) ("The                            concluded that the warrantless blood draw
      [defendant] offers no reason for                        was "authorized under the implied consent
      construing the Texas Constitution as
                                                              law of Chapter 724, Texas Transportation
      conferring greater protection in this                   Code."
      area of the law than the federal
      constitution, and therefore we will not                     At trial, Officer Miller testified about
      address his state constitutional                        the circumstances of the traffic stop that led
      argument.").                                            to Howard's arrest and to his observations
                                                              of Howard. Officer Miller testified that
    At the pre-trial hearing on Howard's                      based on his observations, he believed that
motion to suppress, Sergeant A. Scott                         Howard was intoxicated.
testified that he assisted Officer H. Miller in
obtaining [*3] Howard's blood specimen.                           O fficer A nderson adm inistered
Sergeant Scott testified that he remained at                  standardized field sobriety tests to Howard
the scene to inventory Howard's vehicle                       at the scene. Officer Anderson testified that
after Howard was arrested and transported                     although he was previously certified to
to the jail. The arresting officer, Officer                   administer such tests, his certification had
                                                              lapsed as of the date of the arrest. He also
testified that all of the tests he administered    witnesses' credibility, and it may choose to
to Howard were flawed in some respect.             believe or disbelieve all or any part of the
Although the court allowed Officers Miller         witnesses' testimony. Maxwell v. State, 73
and Anderson to testify regarding their            S.W.3d 278, 281 (Tex. Crim. App. 2002);
observations of Howard, Officer Anderson           State v. Ross, 32 S.W.3d 853, 855 (Tex.
was prohibited from opining about whether          Crim. App. 2000).
he believed that Howard was intoxicated               When the trial [*6] court enters findings
based upon his performance on the field            of fact, the appellate court considers all of
sobriety tests.                                    the evidence in the record and "must
   Dusky Wells, the medical technologist           determine whether the evidence supports
who drew Howard's blood specimen, [*5]             those facts by viewing the evidence in favor
and Marissa Silva, the forensic scientist          of the trial court's ruling." Castro v. State,
with the Texas Department of Public Safety         373 S.W.3d 159, 164 (Tex. App--San
Laboratory in Midland who analyzed the             Antonio 2012, no pet.) (citing Keehn v.
blood specimen, also testified for the State.      State, 279 S.W.3d 330, 334 (Tex. Crim. App.
According to Silva, Howard's blood sample          2009)). Additionally, an appellate court
contained 0.198 grams of ethanol per 100           must "uphold the trial court's ruling if it is
milliliters, which was over twice the legal        supported by the record and correct under
limit in Texas.                                    any theory of law applicable to the case."
                                                   State v. Iduarte, 268 S.W.3d 544, 548 (Tex.
Warrantless Blood Draw                             Crim. App. 2008).
    Howard contends that the trial court               A blood draw conducted at the direction
erred in denying his motion to suppress the        of a law enforcement officer is a search
blood analysis results because the evidence        subject to the reasonableness requirement of
resulted from a warrantless, non-consensual        the Fourth Amendment. Schmerber v.
blood draw that violated the Fourth                California, 384 U.S. 757, 767, 86 S. Ct.
Amendment.                                         1826, 1834, 16 L. Ed. 2d 908 (1966); State
                                                   v. Villarreal, No. PD-0306-14, 2014 Tex.
A. Standard of Review and Applicable               Crim. App. LEXIS 1898, 2014 WL 6734178,
Law                                                at *9 (Tex. Crim. App. Nov. 26, 2014) (reh'g
    We review a trial court's denial of a          granted). A warrantless search of a person is
                                                   unreasonable unless it falls within a
motion to suppress evidence under a
                                                   recognized exception to the warrant
bifurcated standard of review. Turrubiate v.
                                                   requirement. Villarreal, 2014 Tex. Crim.
State, 399 S.W.3d 147, 150 (Tex. Crim. App.
                                                   App. LEXIS 1898, 2014 WL 6734178, at *8
2013). We give almost total deference to a
                                                   (citing Missouri v. McNeely, 133 S. Ct.
trial court's determination of historical facts,
                                                   1552, 1558, 185 L. Ed. 2d 696 (2013)); see
especially if those determinations turn on
                                                   also Katz v. United States, 389 U.S. 347,
witness credibility or demeanor, and we
                                                   357, 88 S. Ct. 507, 514, 19 L. Ed. 2d 576
review de novo the trial court's application
                                                   (1967) (holding that warrantless search or
of the law to facts not based on an
                                                   seizure is per se unreasonable unless it falls
evaluation of credibility and demeanor.
                                                   under recognized exception to warrant
Gonzales v. State, 369 S.W.3d 851, 854
                                                   requirement). Voluntary consent to search
(Tex. Crim. App. 2012). At a suppression
                                                   and the existence of exigent circumstances
hearing, the trial court is the sole and
                                                   are two of the recognized exceptions. See
exclusive trier of fact and judge of the
McNeely, 133 S. Ct. at 1558; Villarreal,        Tex. App. LEXIS 2492, 2015 WL 1245469,
2014 Tex. Crim. App. LEXIS 1898, 2014           at *8 (Tex. App.--Houston [1st Dist.] Mar.
WL 6734178, at *8.                              17, 2015, pet. filed). The Court of Appeals
                                                also rejected the argument that the implied
B. Mandatory Blood           Draw/Implied       consent statute (§ 724.011(a)) constitutes an
Consent Statutes                                exception to the warrant requirement and
                                                held that "in the context [*8]          of a
    The State argues that the trial court did
                                                nonconsensual, warrantless bodily search of
not abuse its discretion in admitting the
                                                a person suspected of criminal activity, a
blood analysis results because the
                                                statute providing for irrevocable implied
warrantless blood draw was mandated by
                                                consent cannot supply the type of voluntary
Transportation           Code section
                                                consent necessary to establish an exception
724.012(b)(3)(B), and alternatively, [*7]
                                                to the Fourth Amendment warrant
that Howard is deemed to have consented to
                                                requirement." Villarreal, 2014 Tex. Crim.
the blood draw pursuant to Transportation
                                                App. LEXIS 1898, 2014 WL 6734178, at
Code section 724.011(a). See T EX. T RANSP.
                                                *14. The court concluded that "implied
C ODE A NN. § 724.011(a) (West 2011)
                                                consent that has been withdrawn or revoked
(providing that person arrested for DWI "is
                                                by a suspect cannot serve as a substitute for
deemed to have consented, subject to this
                                                the free and voluntary consent that the
chapter, to submit to the taking of one or
                                                Fourth Amendment requires." 2014 Tex.
more specimens of the person's breath or
                                                Crim. App. LEXIS 1898, [WL] at *11. In
blood for analysis to determine the alcohol
                                                this case, the State conceded at the
concentration"); id. § 724.012(b)(3)(B)
                                                suppression hearing that Howard revoked
(providing for mandatory-blood-specimen
                                                his consent to the blood draw at the
collection for person twice before convicted
                                                hospital.
of DWI). We construe these arguments as
asserting that the mandatory blood draw
                                                C. Exclusionary Rule
statute and the implied consent statute each
constitute an exception to the Fourth               The State further contends that even if
Amendment's warrant requirement.                the blood draw violated Howard's Fourth
                                                Amendment rights, the trial court was
    While this case has been pending on
                                                nevertheless correct in admitting the
appeal, the Court of Criminal Appeals
                                                evidence because the state and federal
considered the question of whether a
                                                exclusionary rules are inapplicable.
warrantless search of a DWI suspect's blood
                                                Specifically, the State argues that there are
conducted pursuant to section 724.012(b)
                                                applicable good-faith exceptions to the
complied with the Fourth Amendment. See
                                                federal exclusionary rule and the Texas
Villarreal, 2014 Tex. Crim. App. LEXIS
                                                exclusionary rule does not apply because
1898, 2014 WL 6734178, at *6-8. In doing
                                                the police did not obtain the evidence in
so, the court rejected both arguments
                                                violation of the law, as the law existed at
advanced by the State. Specifically, the
                                                the time of the blood draw.
court held that the mandatory blood draw
statute (§ 724.012(b)) does not constitute a        The State argues that the federal
recognized exception to the warrant             exclusionary rule does not bar admission of
requirement. See 2014 Tex. Crim. App.           the evidence in this case because the officer
LEXIS 1898, [WL] at *8, 17-18; see also         relied [*9] in good faith on the mandatory
Perez v. State, No. 01-12-01001-CR, 2015        blood draw statute and on binding judicial
precedent. See Davis v. United States, 131        (declining to apply another federal good-
S. Ct. 2419, 2423-24, 2434, 180 L. Ed. 2d         faith exception to Texas exclusionary rule
285 (2011) (stating that officer's good-faith     because federal exception was "inconsistent
reliance on binding case law is exception to      with the text of article 38.23"); see also
federal exclusionary rule); Illinois v. Krull,    Weems v. State, 434 S.W.3d 655, 666 (Tex.
480 U.S. 340, 360, 107 S. Ct. 1160, 1172,         App.--San Antonio 2014, pet. granted)
94 L. Ed. 2d 364 (1987) (stating that             (rejecting argument that officer's good-faith
officer's good-faith reliance on statute is       reliance on mandatory blood draw and
exception to federal exclusionary rule).          implied consent statutes constituted good-
                                                  faith exception to article 38.23).
    The Texas exclusionary rule provides
that "[n]o evidence obtained . . . in violation       The State also argues that the Texas
of any provisions of the Constitution or          exclusionary rule is inapplicable because
laws of the State of Texas, or of the             "[a]t the time of the blood draw, Texas case
Constitution or laws of the United States of      law clearly held that alcohol dissipation
America, shall be admitted in evidence            alone constituted exigent circumstances in
against the accused on the trial of any           DWI cases." According to the State,
criminal case." T EX. C ODE C RIM. P ROC. art.    "McNeely changed the law when it rejected
38.23 (West 2005). The Court of Criminal          a per se exigency in DWl cases, but
A p p eals has previously held that               McNeely was issued after the search in this
"exceptions to the federal exclusionary rule      case." This court recently addressed a
only apply to the Texas statutory                 similar argument and concluded that
exclusionary rule if they are consistent with     M cN eely did not set out a new
the plain language of the statute." Douds v.      constitutional rule, but rather clarified
State, 434 S.W.3d 842, 861 (Tex. App.--           Schmerber and reaffirmed the Supreme
Houston [14th Dist.] 2014, pet. granted).         Court's prior rulings regarding the
Unlike the federal rule, the plain language       admissibility [*11]      of blood evidence
of Texas's statutory exclusionary rule only       acquired without a warrant. See Tercero,
expressly recognizes one good-faith               2015 Tex. App. LEXIS 3284, 2015 WL
exception and that is for "a law enforcement      1544519, at *7.
officer acting in objective good faith
reliance upon a warrant issued by a neutral       D. Harm Analysis
magistrate based on probable cause." T EX.            We review the harm resulting from a
C ODE C RIM. P ROC. art. 38.23(b) (emphasis       trial court's erroneous denial of a motion to
added). Accordingly, we decline [*10] to          suppress and subsequent admission of
apply the federal good-faith exceptions           evidence obtained in violation of the Fourth
urged by the State to the Texas exclusionary      Amendment under the constitutional
rule set forth in Article 38.23 because the       harmless-error standard. T EX. R. A PP. P.
federal exceptions are not "consistent with       44.2(a); see Hernandez v. State, 60 S.W.3d
the plain language of the [Texas] statute,"       106, 108 (Tex. Crim. App. 2001)
which only recognizes one exception based         (mandating application of rule 44.2(a) to
on an officer's good-faith reliance upon a        harm analysis of trial court's erroneous
warrant. See State v. Tercero, No. 01-14-         denial of motion to suppress under Fourth
00120-CR, 2015 Tex. App. LEXIS 3284,              Amendment). This standard requires us to
2015 WL 1544519, at *7 (Tex. App.--               reverse the trial court's judgment of
Houston [1st Dist.] Apr. 2, 2015, pet. filed)
conviction unless we determine "beyond a        cannot determine beyond a reasonable
reasonable doubt that the error did not         doubt that the error did not contribute to
contribute to the conviction or punishment."    Howard's conviction. See Perez, 2015 Tex.
T EX. R. A PP. P. 44.2(a).                      App. LEXIS 2492, 2015 WL 1245469, at *9-
                                                10; Weems, 434 S.W.3d at 667.
    Here, the jury charge instructed the
jurors that "[a] person is deemed to be             We conclude that the warrantless taking
intoxicated within the meaning of the law       of Howard's blood sample in this case
when he does not have the normal use of his     violated his Fourth Amendment rights by
mental or physical faculties by reason of the   requiring him to submit to a blood test
introduction of alcohol in his body, or         without a warrant or a recognized exception
having an alcohol concentration of 0.08 or      to the warrant requirement and that this
more." The State presented the testimony of     error was harmful.
Officers Miller and Anderson regarding              We sustain Howard's complaint that the
Howard's conduct leading up to and              trial court erred in denying his motion to
following his arrest as evidence of             suppress evidence relating to th e
intoxication. The State also presented the      warrantless blood draw.
testimony of the medical technologist who
took Howard's blood sample on the night he      Conclusion
was arrested. [*12]       Finally, the State
presented the testimony of a forensic               We reverse the trial court's judgment
scientist who testified that Howard's blood     and remand for a new trial consistent with
sample contained 0.198 grams of ethanol         this opinion.
per 100 milliliters and that this amount of        Russell Lloyd
alcohol was over twice the legal limit in
Texas.                                             Justice

    Given the testimony regarding the              Panel consists of Chief Justice Radack
taking of Howard's blood sample and his         and Justices Brown and Lloyd.
toxicology results and the jury's instruction      Do not publish. T EX. R. A PP. P. 47.2(b).
that intoxication means, in part, "having an
alcohol concentration of 0.08 or more," we
