                                 IN THE
                         TENTH COURT OF APPEALS

                                 No. 10-13-00109-CR

MICHAEL MCGRUDER,
                                                             Appellant
v.

THE STATE OF TEXAS,
                                                             Appellee



                          From the 85th District Court
                              Brazos County, Texas
                        Trial Court No. 11-05822-CRF-85


                             DISSENTING OPINION


      At least six of our sister courts, based on Missouri v. McNeely, 133 S.Ct. 1552, 1556,

185 L.Ed.2d 696 (2013) and the Supreme Court’s treatment of Aviles v. State, 385 S.W.3d

110 (Tex. App.—San Antonio 2012, pet. ref’d), vacated, 134 S.Ct. 902, 187 L.Ed.2d 767

(2014), op. on remand, --- S.W.3d ---, 2014 WL 3843757 (Tex. App.— San Antonio Aug. 6,

2014, no pet. h.), have held that a warrantless, nonconsensual blood draw under

Transportation Code section 724.012(b), absent exigent circumstances, violates the

Fourth Amendment. Forsyth v. State, --- S.W.3d ---, ---, 2014 WL 3865777, at *8 (Tex.
App.—Eastland July 31, 2014, no pet. h.); Weems v. State, --- S.W.3d ---, ---, 2014 WL

2532299, at *8 (Tex. App.—San Antonio May 14, 2014, pet. filed); Holidy v. State, No. 06-

13-00261-CR, 2014 WL 1722171, at *4 (Tex. App.—Texarkana Apr. 30, 2014, pet. filed)

(mem. op., not designated for publication); Reeder v. State, 428 S.W.3d 924, 930 (Tex.

App.—Texarkana 2014, pet. filed); Sutherland v. State, --- S.W.3d ---, ---, 2014 WL

1370118, at *10 (Tex. App.—Amarillo Apr. 7, 2014, pet. filed); State v. Villareal, --- S.W.3d

---, ---, 2014 WL 1257150, at *11 (Tex. App.—Corpus Christi Jan. 23, 2014, pet. granted);

see also Douds v. State, --- S.W.3d ---, 2014 WL 2619863 (Tex. App.—Houston [14th Dist.]

June 5, 2014, pet. filed). But see Perez v. State, --- S.W.3d ---, ---, 2014 WL 943126, at *7

(Tex. App.—Houston [1st Dist.] Mar. 11, 2014, no pet. h.) (mot. for reh’g and mot. for en

banc reh’g pending) (“We conclude that the warrantless taking of appellant’s blood

sample in compliance with Transportation Code section 724.012(b) did not violate his

Fourth Amendment rights by requiring him to submit to a warrantless blood test

without his consent.”); see id. (also holding that appellant failed to raise constitutionality

of statute in trial court).

        While it appears that no court has explicitly passed on the facial constitutionality

of section 724.012(b),1 some have criticized the statute from a Fourth-Amendment

perspective with language that I believe indicates a facial problem with the statute:


1
  The majority quotes two sentences in a footnote from Douds that appear to be dicta. See Douds, ---
S.W.3d at --- n.24, 2014 WL 2619863, at *15 n.24. In Sutherland, the appellant presented an apparent facial
challenge: “In the absence of exigent circumstances or consent[,] does Section 724.012(b)(3)(B) violate the
Texas and United States constitutional prohibitions against unreasonable searches and seizures where the
statute requires law enforcement officers to seize a specimen of a DWI arrestee’s blood without a search
warrant in all cases where the officer believes the arrestee has been previously convicted of DWI two or
more times.” Sutherland, --- S.W.3d at ---, 2014 WL 1370118, at *3. But the court did not make an explicit

McGruder v. State                                                                                   Page 2
       Forsyth, --- S.W.3d at ---, 2014 WL 3865777, at *7 (“we decline to hold that
        mandatory blood draws under the Texas Transportation Code are per se
        reasonable and further decline to hold that an officer is not required to obtain a
        warrant for the blood draw or show that the blood draw was conducted under a
        recognized exception to the warrant requirement.”).

       Holidy, 2014 WL 1722171, at *1 (“This appeal involves the sole question of the
        constitutionality of taking and testing blood under the implied consent
        provisions of Section 724.012(b)(3)(B)… . Because we are constrained by
        principles recently enunciated by the United States Supreme Court, we reverse
        the conviction herein based on the unconstitutionality of the statute and remand
        this case for a new trial.”).

       Sutherland, --- S.W.3d at ---, 2014 WL 1370118, at *10 (“To the extent that Section
        724.012(b)(3)(B) can be read to permit, nonetheless, a warrantless seizure of a
        suspect’s blood in the absence of such exigent circumstances or the suspect’s
        consent, it runs afoul of the Fourth Amendment’s warrant requirement.”).

        Section 724.012(b) does not explicitly require an officer to obtain a blood or

breath sample without a warrant, but it also does not instruct an officer to obtain a

warrant in the absence of exigent circumstances. And the common facts in our sister

courts’ opinions and in this case are that the officer did not obtain a warrant solely

because of section 724.012(b) and did compel or forcibly obtain a blood sample without

the defendant’s consent solely because of section 724.012(b):2



facial review of the statute. And in Forsyth, the appellant failed to assert a facial complaint in the trial
court. Forsyth, --- S.W.3d at --- n.1, 2014 WL 3865777, at *1 n.1.
2
  In Beeman, the court of criminal appeals did state: “This does not give officers the ability to forcibly
obtain blood samples from anyone arrested for DWI.” Beeman v. State, 86 S.W.3d 613, 616 (Tex. Crim.
App. 2002). But the context of that sentence is important:

                 The dissent implies that we have given carte blanche to officers to draw blood in
        every single DWI case. But we have given police officers nothing more than the
        Constitution already gives them—the ability to apply for a search warrant and, if the
        magistrate finds probable cause to issue that warrant, the ability to effectuate it. This does
        not give officers the ability to forcibly obtain blood samples from anyone arrested for DWI.
        Instead, it gives officers the ability to present an affidavit to a magistrate in every DWI
        case, just like every other criminal offense. Whether any search ultimately occurs rests,
        as always, in the hands of the neutral and detached magistrate.

McGruder v. State                                                                                        Page 3
       Forsyth, --- S.W.3d at ---, 2014 WL 3865777, at *2 (“A criminal history check and
        Appellant’s own admissions revealed that Appellant had two prior convictions
        for DWI. Appellant refused to submit to a breath or blood test. Relying on
        Section 724.012 of the Texas Transportation Code, Officer McDaniel transported
        Appellant to Brackenridge Hospital for a mandatory blood draw. … Officer
        McDaniel acknowledged that there were magistrates available to issue a search
        warrant twenty-four hours a day, but stated that he could not have secured a
        warrant because that ‘is not what you do according to law or policy.’”).

       Weems, --- S.W.3d at ---, 2014 WL 2532299, at *1, 3 (“No warrant was procured for
        the blood draw. … In this case, Officer Bustamante testified that the blood draw
        was administered because a person other than Weems suffered bodily injury and
        was transported to a hospital for medical attention. The State also points out that
        the THP–51 form, which was admitted in evidence, indicates that the blood draw
        was also ordered because Weems had two prior DWI convictions.”).

       Douds, --- S.W.3d at ---, 2014 WL 2619863, at *1, 3 (“Officer Tran took the
        appellant to a local medical center, Texas Emergency Care, for a mandatory
        blood draw. Officer Tran testified his decision to obtain a blood draw was based
        on his reasonable belief that section 724.012 of the Texas Transportation Code
        had been satisfied and allowed him to do so. … Nothing in the record suggests
        that any officer attempted to obtain a warrant authorizing the blood draw at any
        point. Indeed, the evidence does not mention a warrant at all. … Officer Tran
        testified that he ordered the mandatory blood draw under the authority of
        section 724.012 of the Texas Transportation Code.”).

       Holidy, 2014 WL 1722171, at *1 & n.2 (defendant, who had two prior DWI
        convictions, “was told by officers that he had no choice, so he ‘didn't argue’ with
        them about the blood draw”).

       Reeder, 428 S.W.3d at 926 (after defendant, who had two prior DWI convictions,
        “refused to give his consent to have his blood drawn and tested for alcohol, law
        enforcement officials took a blood specimen anyway and tested it under the
        authority of Section 724.012(b)(3)(B)”).


Id. (emphasis added). This statement is therefore inapplicable to the warrantless blood draw cases where
the officers have been forcibly obtaining blood samples without warrants under the alleged authority of
the statute. And because Beeman involved a warrant, its language about warrantless blood draws is dicta.
See Weems, --- S.W.3d at ---, 2014 WL 2532299, at *3-4. Moreover, as intimated by the San Antonio court in
Weems, the dicta in Beeman is likely not viable after McNeely. See id., --- S.W.3d at ---, 2014 WL 2532299, at
*4 (“[w]e relied on this dicta in Beeman in Aviles”); see also Forsyth, --- S.W.3d at ---, 2014 WL 3865777, at *4
(“court’s explanation of implied consent law in Beeman is dicta”); id. (“Furthermore, the implied consent
statute, at the time Beeman was issued, did not contain a provision directing officers to take the blood of a
DWI arrestee that had previously twice been arrested for DWI.”).

McGruder v. State                                                                                        Page 4
      Sutherland, --- S.W.3d at ---, 2014 WL 1370118, at *1 (“[Officer] Housmans testified
       that, as justification for the warrantless blood draw, he relied solely on the
       provision in the Texas Transportation Code that requires him to obtain a sample
       of a suspect’s blood whenever he learns that the individual has been convicted
       two or more times of driving while intoxicated.”).

      Id., --- S.W.3d at ---, 2014 WL 1370118, at *2 (“Housmans conceded, too, that he
       did not seek out a magistrate the night appellant was arrested; it was
       Housmans’s understanding of Section 724.012 that he was not required to do so.
       In fact, Housmans testified that he understood Section 724.012 as placing upon
       him a duty to take appellant for a mandatory blood draw under the
       circumstances presented to him the night appellant was arrested: ‘I have no
       discretion. The statute says I shall.’ To fail to do so, he testified, would mean
       that he “would be violating the law.”).

      Villareal, --- S.W.3d at ---, 2014 WL 1257150, at *11 (“The officer’s sole basis for not
       getting a warrant was that the repeat offender provision of the mandatory blood
       draw law required him to take a blood sample without appellee’s consent and
       without the necessity of obtaining a search warrant.”).

       Plainly, the statute’s silence on warrants explains the officers’ views that the

statute authorizes them to compel warrantless blood draws. See Forsyth, --- S.W.3d at ---

, 2014 WL 3865777, at *2 (“Officer McDaniel acknowledged that there were magistrates

available to issue a search warrant twenty-four hours a day, but stated that he could not

have secured a warrant because that ‘is not what you do according to law or policy.’”).

       Because of the statute’s silence on warrants and the indisputable practice of

warrantless blood draws based solely on the silent statute, and based on the Texas

progeny of McNeely that border on a finding of facial unconstitutionality, I cannot agree

with the majority that McGruder’s facial challenge to section 724.012(b) fails. See Holidy,

2014 WL 1722171, at *1 (“we reverse the conviction herein based on the

unconstitutionality of the statute”); see also State v. Baker, No. 12-12-00092-CR, 2013 WL


McGruder v. State                                                                       Page 5
5657649, at *4 (Tex. App.—Tyler June 5, 2013, pet. granted) (mem. op., not designated

for publication) (citing State v. Mosely, 348 S.W.3d 435, 442 (Tex. App.—Austin 2011, pet.

ref’d), for the proposition that “Chapter 724 does not authorize what the constitution

forbids and cannot authorize an involuntary draw when the constitution forbids it”).

       Accordingly, I respectfully dissent.



                                                REX D. DAVIS
                                                Justice

Dissenting opinion delivered and filed August 14, 2014
Publish




McGruder v. State                                                                   Page 6
