                                                                     ACCEPTED
                                                                03-14-00189-CR
                                                                       4744958
                                                      THIRD COURT OF APPEALS
                                                                 AUSTIN, TEXAS
                                                           4/2/2015 12:47:06 PM
                                                               JEFFREY D. KYLE
                                                                         CLERK
         No. 03-14-00189-CR

            IN THE                              FILED IN
                                         3rd COURT OF APPEALS
    THIRD COURT OF APPEALS                   AUSTIN, TEXAS
                                         4/2/2015 12:47:06 PM
                                           JEFFREY D. KYLE
                                                 Clerk

FRED ROBERT SCHNEIDER, Appellant

                   v.

  THE STATE OF TEXAS, Appellee


   Appeal from Williamson County


             * * * * *

    STATE’S RESPONSE BRIEF

             * * * * *


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

        JOHN R. MESSINGER
  Assistant State Prosecuting Attorney
         Bar I.D. No. 24053705

           P.O. Box 13046
        Austin, Texas 78711
      512/463-1660 (Telephone)
         512/463-5724 (Fax)


 ORAL ARGUMENT REQUESTED
                   SUPPLEMENTAL LIST OF PARTIES

*Counsel for the State before this Court is John R. Messinger, Assistant State
Prosecuting Attorney, P.O. Box 13046, Austin, Texas 78711.




                                      i
                                        TABLE OF CONTENTS

INDEX OF AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

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

SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

         Response to Issue 1:                Appellant’s blood alcohol content was
                                             admissible. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

         Response to Issue 2:                There was no disputed issue of fact for the
                                             jury to decide. . . . . . . . . . . . . . . . . . . . . . . . . . . 27

         Response to Issue 3:                The Ex Post Facto Clause does not apply to
                                             enhancement provisions like 49.09.. . . . . . . . . 30

PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34




                                                          ii
                                  INDEX OF AUTHORITIES
Cases
State v. Anderson, 445 S.W.3d 895 (Tex. App.–Beaumont 2014, no pet.) . . . . . . 20

Bailey v. State, 03-09-00276-CR, 2010 Tex. App. LEXIS 4584
      (Tex. App.–Austin June 18, 2010, pet. ref’d). . . . . . . . . . . . . . . . . . . . . 32, 33

Bartlett v. State, 270 S.W.3d 147 (Tex. Crim. App. 2008).. . . . . . . . . . . . . . . . . . 23

United States v. Biswell, 406 U.S. 311 (1972). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Bowman v. State, 05-13-01349-CR, 2015 Tex. App. LEXIS 1285
    (Tex. App.–Dallas Feb. 10, 2015).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

New York v. Burger, 482 U.S. 691 (1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Calder v. Bull, 3 U.S. 386, 390 (1798). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Carmell v. Texas, 529 U.S. 513 (2000).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Castillo v. State, 03-07-00546-CR, 2008 Tex. App. LEXIS 6225
       (Tex. App.–Austin Aug. 14, 2008, no pet.). . . . . . . . . . . . . . . . . . . . . . 32, 33

Cheek v. United States, 498 U.S. 192 (1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Clay v. State, 391 S.W.3d 94 (Tex. Crim. App. 2013). . . . . . . . . . . . . . . . . . . . . . 14

Clayton v. State, 235 S.W.3d 772 (Tex. Crim. App. 2007). . . . . . . . . . . . . . . . . . 23

Cobb v. State, 85 S.W.3d 258 (Tex. Crim. App. 2002). . . . . . . . . . . . . . . . . . . . . 31

Colburn v. State, 966 S.W.2d 511 (Tex. Crim. App. 1998). . . . . . . . . . . . . . . . . . . 6

Cole v. State, __S.W.3d__, 2014 Tex. App. LEXIS 13498
      (Tex. App.–Texarkana Dec. 18, 2014, pet. filed). . . . . . . . . . . . . . . . . . 6, 7, 8

Conelly v. State, 451 S.W.3d 471 (Tex. App.–Houston [1st Dist.] 2014, no pet.). 32


                                                    iii
Derichsweiler v. State, 348 S.W.3d 906 (Tex. Crim. App. 2011). . . . . . . . . . . . . 15

Douds v. State, 434 S.W.3d 842 (Tex. App.–Houston [14th Dist.] 2014)
     (en banc) (pet. granted, argued March 18, 2015). . . . . . . . . . . . . . . . 7, 21, 28

Evans v. State, 14-13-00642-CR, 2015 Tex. App. LEXIS 1237 (Tex.
     App.–Houston [14th Dist.] Feb. 10, 2015) (motion for rehearing filed).. . . 20

Forsyth v. State, 438 S.W.3d 216 (Tex. App.–Eastland 2014, pet. ref’d) .. . . . . . 20

Gallups v. State, 151 S.W.3d 196 (Tex. Crim. App. 2004). . . . . . . . . . . . . . . . . . 17

Gore v. State, 451 S.W.3d 182, 2014 Tex. App. LEXIS 12326
      (Tex. App.–Houston [1st Dist.] 2014, pet. filed) . . . . . . . . . . . . . . . . . 8, 9, 10

Griffin v. Wisconsin, 483 U.S. 868 (1987) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Grimes v. State, 807 S.W.2d 582 (Tex. Crim. App. 1991). . . . . . . . . . . . . . . . . . . 31

State v. Johnston, 336 S.W.3d 649 (Tex. Crim. App. 2011) . . . . . . . . . . . . . . . . . . 5

Kentucky v. King, 131 S. Ct. 1849 (2011).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 7

Maryland v. King, 133 S. Ct. 1958 (2013) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5

United States v. Knights, 534 U.S. 112 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Leal v. State, 452 S.W.3d 14 (Tex. App.–Houston [14th Dist.] 2014, pet. filed,
      remanded). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Madden v. State, 242 S.W.3d 504 (Tex. Crim. App. 2007). . . . . . . . . . . . 27, 28, 30

McDonald v. Massachusetts, 180 U.S. 311 (1901).. . . . . . . . . . . . . . . . . . . . . . . . 32

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

Mills v. State, 296 S.W.3d 843 (Tex. App.–Austin 2009, pet. ref’d). . . . . . . . . . . 28


                                                          iv
Ornelas v. United States, 517 U.S. 690 (1996).. . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Riley v. California, 134 S. Ct. 2473 (2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 4

Roaden v. Kentucky, 413 U.S. 496 (1973). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Robinson v. State, 377 S.W.3d 712 (Tex. Crim. App. 2012). . . . . . . . . . . . . . . . . 28

Samson v. California, 547 U.S. 843 (2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Saucedo v. State, 03-06-00305-CR, 2007 Tex. App. LEXIS 4292
     (Tex. App.–Austin May 30, 2007, no pet.).. . . . . . . . . . . . . . . . . . . . . . 32, 33

Schmerber v. California, 384 U.S. 757 (1966). . . . . . . . . . . . . . . . . . . . . . . . 6, 9-10

Scott v. State, 55 S.W.3d 593 (Tex. Crim. App. 2001).. . . . . . . . . . . . . . . 31, 32, 33

Shaw v. State, 529 S.W.2d 75 (Tex. Crim. App. 1975). . . . . . . . . . . . . . . . . . . . . 32

Mich. Dep’t of State Police v. Sitz, 496 U.S. 444 (1990) . . . . . . . . . . . . . . . . . . . . 4

Snowden v. State, 353 S.W.3d 815 (Tex. Crim. App. 2011). . . . . . . . . . . . . . . . . 22

Sutherland v. State, 436 S.W.3d 28 (Tex. App.–Amarillo 2014, pet. filed) . . . . . 21

Townsend v. State, 03-05-00766-CR, 2007 Tex. App. LEXIS 5940
     (Tex. App.–Austin July 26, 2007, pet. ref’d). . . . . . . . . . . . . . . . . . . . . . . . 32

State v. Villarreal, 2014 Tex. Crim. App. LEXIS 1898
       (Tex. Crim. App. Nov. 26, 2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Wesbrook v. State, 29 S.W.3d 103 (Tex. Crim. App. 2000).. . . . . . . . . . . . . . . . . 22

White v. State, 201 S.W.3d 233 (Tex. App.–Fort Worth 2006, pet. ref’d) . . . . . . 30

Statutes, Codes and Rules
TEX. CODE CRIM. PROC. art 14.03(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17


                                                    v
TEX. CODE CRIM. PROC. art. 18.01(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

TEX. CODE CRIM. PROC. art. 36.13. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

TEX. CODE CRIM. PROC. art. 38.23(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

TEX. PENAL CODE § 49.04(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

TEX. PENAL CODE § 49.09. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

TEX. R. APP. P. 44.2(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

TEX. TRANSP. CODE § 724.012(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2




                                                         vi
                                    No. 03-14-00189-CR

                                      IN THE
                              THIRD COURT OF APPEALS


FRED ROBERT SCHNEIDER,                                                      Appellant

v.

THE STATE OF TEXAS,                                                          Appellee

                                     * * * * *
                              STATE’S RESPONSE BRIEF
                                     * * * * *

TO THE HONORABLE THIRD COURT OF APPEALS:

         Comes now the State of Texas, by and through its State Prosecuting Attorney,

and respectfully presents to this Court its brief in the named cause.

                 STATEMENT REGARDING ORAL ARGUMENT

         The State requests oral argument on the first issue. Respectfully, many of the

courts of appeals that have considered exigent circumstances post-McNeely1 have

missed the point. Oral argument will assist the Court to better guide practitioners and

judges in its jurisdiction.




     1
         Missouri v. McNeely, 133 S. Ct. 1552 (2013).

                                                1
                        SUMMARY OF THE ARGUMENT

       First, regardless of the resolution of Villarreal in the Court of Criminal

Appeals, the delay caused by appellant’s flight from the scene and escalation of the

situation, combined with the two hours it would take to secure a warrant once the

arrest was effectuated, made a warrantless blood draw reasonable. Second, appellant

was not entitled to his proposed article 38.23 instruction because it posed no question

of disputed fact; there was no evidence a warrant was obtained, and whether there

were exigent circumstances is a question of law. Third, the use of prior convictions

in an enhancement provision does not present any ex post facto issue because it does

nothing to make the present offense worse than it was at the time it was committed.

                                     ARGUMENT

Response to Issue 1:        Appellant’s blood alcohol content was admissible

       The Court of Criminal Appeals held in State v. Villarreal that reliance on the

blood draw statute to secure blood without a warrant is unconstitutional, but the

propriety of that holding is presently being considered.2 Regardless of the outcome

of that case, this case presents exigent circumstances that made the warrantless blood

draw reasonable. Alternatively, overwhelming evidence of impairment and a defense


  2
        State v. Villarreal, 2014 Tex. Crim. App. LEXIS 1898 (Tex. Crim. App. Nov. 26, 2014)
(State’s motion for rehearing granted, submitted Mar. 18, 2015). See TEX . TRANSP . CODE §
724.012(b).

                                             2
strategy of calling the BAC “meaningless” shows that any error in admitting that

evidence was harmless.

Villarreal

        Appellant relies primarily on the Court of Criminal Appeals’ opinion in

Villarreal, which was recently resubmitted on the State’s motion for rehearing. This

Court has chosen to hold its cases dealing with the statute. A decision in Villarreal

will hopefully issue soon, and if the Court of Criminal Appeals holds that a

warrantless blood draw is reasonable under the circumstances then this issue is

resolved in the State’s favor. This Court is undoubtedly familiar with the arguments,

but the State will briefly summarize its position.

        The ultimate touchstone of the Fourth Amendment is “reasonableness,” which

generally requires that law enforcement officials who search for evidence of criminal

wrongdoing obtain a warrant.3 While it cannot be argued that the circumstances set

out by the Legislature fit neatly within one of the currently recognized exceptions to

the warrant requirement, it has elements of each that, in aggregate, compel a finding

of reasonableness under the totality of the circumstances:

•       The blood draw statute is part of a complex administrative scheme of licensing
        and suspension that is not criminal in nature despite its overlap with DWI



    3
        Riley v. California, 134 S. Ct. 2473, 2482 (2014).

                                                3
        prosecutions.4

•       Legitimate expectations of privacy are diminished by the fact of valid arrest
        based on probable cause.5

•       The discretion of officers is limited; an officer is required to obtain blood
        under enumerated circumstances that include arrest based on probable cause,
        and cannot otherwise do so without consent or a warrant.

•       Those circumstances are reasonable for administrative purposes, i.e., tracking
        repeat offenders and identifying the cause of accidents resulting in injury on
        public roadways.

•       For repeat offenders like appellant, a blood draw is further justified because his
        familiarity with the process stemming from at least two other arrest and
        prosecutions augments the established presumption that citizens are familiar
        with the laws that govern them.6

    4
       See TEX . TRANSP . CODE §§ 724.032-042. Compare with New York v. Burger, 482 U.S. 691,
713-14 (1987) (junkyard regulatory warrantless inspection scheme, which may be conducted by
police, promotes the same goal as criminal laws by deterring auto theft); Mich. Dep’t of State Police
v. Sitz, 496 U.S. 444, 449-50, 453-55 (1990) (upholding checkpoint to discover drunk-drivers as
reasonable and noting that dispensing with individualized suspicion does not always require a non-
criminal law-enforcement purpose).
    5
       See Riley, 134 S. Ct. at 2485 (reduced privacy expectations by virtue of arrest); Maryland v.
King, 133 S. Ct. 1958, 1979 (2013) (“A brief intrusion of an arrestee’s person is subject to the Fourth
Amendment, but a swab of this nature does not increase the indignity already attendant to normal
incidents of arrest.”).
    6
        Cheek v. United States, 498 U.S. 192, 199 (1991) (“Based on the notion that the law is
definite and knowable, the common law presumed that every person knew the law. This
common-law rule has been applied by the Court in numerous cases construing criminal statutes.”);
see also United States v. Biswell, 406 U.S. 311, 315-16 (1972) (administrative search of firearms
business reasonable because owner was aware of statutory authorization and time, place, scope
limitations). Cf. Griffin v. Wisconsin, 483 U.S. 868, 873-80 (1987) (regulation authorizing
warrantless search of probationer’s home based on “reasonable grounds” that there is contraband);
United States v. Knights, 534 U.S. 112, 119-22 (2001) (search of probationer reasonable based on
a known and accepted cart blanche probation search condition and reasonable suspicion of
wrongdoing); Samson v. California, 547 U.S. 843, 852-56 (2006) (suspicionless search of parolee’s
                                                                                    (continued...)

                                                  4
•        The reasonableness of the method is well-established,7 and the proposed
         use—a search limited to intoxicants—is more limited than in other cases
         upheld by the Supreme Court.8

•        And, of course, while the dissipation of blood alcohol evidence is not an
         exigency per se, it is an important factor in determining the lawfulness of a
         warrantless search.9

         Viewed as a whole, the circumstances required to satisfy the statute make a

warrantless blood draw reasonable.

Exigent circumstances

         The preference for a warrant is excused when “the exigencies of the situation”

make the needs of law enforcement so compelling that a warrantless search is

objectively reasonable.10 One such exigency is the need to prevent the imminent

destruction of evidence.11 To determine whether a law enforcement officer faced an

emergency that justified acting without a warrant, courts look to the totality of




    6
    (...continued)
person reasonable based on a known and accepted cart blanche parole search condition).
    7
       See State v. Johnston, 336 S.W.3d 649, 659 (Tex. Crim. App. 2011) (holding that blood
draws are reasonable and noting that a small sample is taken).
    8
       Compare with King, 133 S. Ct. at 1967 (DNA swab taken at book-in used for identification
and unsolved crime comparison).
    9
         McNeely, 133 S. Ct. at 1568.
    10
         Kentucky v. King, 131 S. Ct. 1849, 1856 (2011) (citations omitted).
    11
         Id. (citations omitted).

                                                 5
circumstances.12 As it pertains to blood draws, “The relevant inquiry is whether,

given the facts and circumstances known to police at the time, it would be objectively

reasonable for an officer to conclude that taking the time necessary to obtain a

warrant before drawing a blood sample would significantly undermine the efficacy

of a blood-alcohol test.”13

McNeely

        Nearly two years ago, the Supreme Court rejected the argument that “the

natural dissipation of alcohol in the bloodstream establishes a per se exigency that

suffices on its own to justify an exception to the warrant requirement for

nonconsensual blood testing in drunk-driving investigations.”14 Although McNeely

represents nothing more than the reaffirmation that, “Whether a warrantless blood test

of a drunk-driving suspect is reasonable must be determined case by case based on

the totality of the circumstances,”15 it has created much confusion in the courts of

appeals.


   12
        McNeely, 133 S. Ct. at 1559.
 13
        Cole v. State, __S.W.3d__, 2014 Tex. App. LEXIS 13498 at *14 (Tex. App.–Texarkana Dec.
18, 2014, pet. filed) (citing McNeely, 133 S.Ct. at 1561; Schmerber v. California, 384 U.S. 757, 770
(1966)); see also Colburn v. State, 966 S.W.2d 511, 519 (Tex. Crim. App. 1998) (“We apply an
objective standard of reasonableness in determining whether a warrantless search is justified, taking
into account the facts and circumstances known to the police at the time of the search.”).
   14
        McNeely, 133 S.Ct. at 1558.
   15
        Id. at 1563.

                                                 6
        For example, at least two courts require that police face a “now or never”

situation, i.e., there is a substantial risk that the evidence will become permanently

unavailable if they do not act immediately in the absence of a warrant.16 This is the

scenario presented in the typical exigent circumstances case: if police do not

intervene, the evidence will be lost forever.17 McNeely acknowledged the “now or

never” language relied upon in Douds and Cole but cautioned that “[t]he context of

blood testing is different in critical respects from other destruction of evidence

cases.”18 On one hand, there is no mere “risk” that evidence will be lost. “[I]n every

case the law must be concerned that evidence is being destroyed”19 because “‘the

percentage of alcohol in the blood begins to diminish shortly after drinking stops, as




  16
        Douds v. State, 434 S.W.3d 842, 850 (Tex. App.–Houston [14th Dist.] 2014) (en banc) (pet.
granted, argued March 18, 2015) (“a search ‘without prior judicial evaluation’ is reasonable ‘[w]here
there are exigent circumstances in which police action literally must be now or never to preserve the
evidence of the crime.’”) (quoting Roaden v. Kentucky, 413 U.S. 496, 505 (1973)); see also Cole,
2014 Tex. App. LEXIS 13498 at *28 (“Assuming the same forty-minute delay in drawing his blood,
Cole’s blood could have been drawn pursuant to a warrant before 2:00 a.m., only an hour and forty
minutes after it was actually drawn. Therefore, this fails to reach the ‘now or never’ level
contemplated by exigent circumstances precedent.”).
  17
        See King, 131 S. Ct. at 1857 (“Destruction of evidence issues probably occur most frequently
in drug cases because drugs may be easily destroyed by flushing them down a toilet or rinsing them
down a drain.”).
   18
        McNeely, 133 S. Ct. at 1561.
   19
        Id. at 1568.

                                                 7
the body functions to eliminate it from the system.’”20 On the other hand, “BAC

evidence is lost gradually and relatively predictably,” making technological advances

that make getting a warrant easier more relevant than in the typical exigency case.21

This is why metabolization, on its own, is not “a sufficient basis for a warrantless

search everywhere and always.”22

        But it has not become a non-issue, as the “important countervailing concerns”23

caused by delay have not disappeared post-McNeely. Again, some courts of appeals

have used McNeely’s “gradual and predictable” language in isolation to dismiss

delays of up to three hours based on the availability of retrograde extrapolation.24

The First Court did so despite accepting that a three hour delay would cause an


   20
        Id. at 1560 (quoting Schmerber, 384 U.S. at 770).
   21
        Id. at 1562-63 & n.6.
   22
        Id. at 1563 n.6.
   23
        Id. at 1563.
   24
        The First Court, for example, held:
   Nothing else in the record explains why Officer McIntyre did not have time to get a warrant
   before the evidence was destroyed, especially, when, as noted by the McNeely court, ‘BAC
   evidence from a drunk-driving suspect naturally dissipates over time in a gradual and
   relatively predictable manner.’ Even if McIntyre had to wait the maximum estimated three
   hours for a warrant, it is likely that the BAC evidence would have nonetheless been available
   in light of its ‘predictable manner’ of dissipation.
Gore v. State, 451 S.W.3d 182, 197 (Tex. App.–Houston [1st Dist.] 2014, pet. filed) (quoting
McNeely, 133 S. Ct. at 1561) (emphasis added in Gore); see also Cole, 2014 Tex. App. LEXIS
13498 at *28 (“the ‘now or never’ level contemplated by exigent circumstances precedent” was not
reached because the suspect’s blood could have been drawn pursuant to a warrant “only an hour and
forty minutes after it was actually drawn.”).

                                                8
average drop in BAC of .06.25 That is a loss of three fourth’s of the evidence required

for a conviction. This conflicts with the plain language of McNeely: “While experts

can work backwards from the BAC at the time the sample was taken to determine the

BAC at the time of the alleged offense, longer intervals may raise questions about the

accuracy of the calculation.”26 And, “Regardless of the exact elimination rate, it is

sufficient for our purposes to note that because an individual’s alcohol level gradually

declines soon after he stops drinking, a significant delay in testing will negatively

affect the probative value of the results.”27

       These post-McNeely holdings also conflict with the facts of Schmerber.

Schmerber was driving a car that struck a tree.28 The officer noticed signs of

intoxication at the scene and again at the hospital within two hours of the accident.29

He then arrested Schmerber and directed a doctor to take a blood sample.30 The

Supreme Court’s entire analysis is four sentences:

  The officer in the present case, however, might reasonably have believed that


  25
       Gore, 451 S.W.3d at 198 n.6.
  26
       McNeely, 133 S. Ct. at 1563.
  27
       Id. at 1560-61.
  28
       Schmerber, 384 U.S. at 758 n.2.
  29
       Id. at 768-69.
  30
       Id. at 769, 758.

                                           9
  he was confronted with an emergency, in which the delay necessary to obtain a
  warrant, under the circumstances, threatened “the destruction of evidence.” We
  are told that the percentage of alcohol in the blood begins to diminish shortly
  after drinking stops, as the body functions to eliminate it from the system.
  Particularly in a case such as this, where time had to be taken to bring the
  accused to a hospital and to investigate the scene of the accident, there was no
  time to seek out a magistrate and secure a warrant. Given these special facts, we
  conclude that the attempt to secure evidence of blood-alcohol content in this
  case was an appropriate incident to petitioner’s arrest.31

Of course, it was not literally true that there was “no time to . . . secure a warrant.”

The Supreme Court merely recognized that any additional delay would reasonably

result in a constitutionally significant “destruction of evidence.” Any claim that a two

or three hour delay does not “negatively affect the probative value of the results” is

insupportable.

       Perhaps in anticipation of this argument, the First Court held, “To accept

[assistant district attorney] Reed’s testimony that it usually takes two to three hours

to get a warrant as sufficient evidence of exigency in every DWI case would be to

create a per se exigency rule, which McNeely expressly prohibits.”32 This is an abuse

of McNeely’s “per se” language. McNeely does not say that no fact can, in

combination with the fact of dissipation, create an exigency. It says only that the fact

of dissipation on its own does not create an exigency. As Schmerber demonstrates,


  31
       Id. at 770-71 (citation omitted).
  32
       Gore, 451 S.W.3d at 197.

                                           10
dissipation plus significant time equals exigency. What McNeely does remind us is

that the significance of delays diminishes as available technology progresses.33 But,

absent evidence of access to—and statutory authority to use34—technology that

makes obtaining warrants easier, or access to a magistrate at the jail 24/7, it is simply

incorrect to say that proof that a warrant would delay obtaining a blood sample an

additional two to three hours does not make a warrantless blood draw reasonable.

       Nor is it proper to reject exigent circumstances based simply on the lack of a

record on every conceivable piece of relevant information. In response to the

McNeely dissent’s complaint “that officers in the field will be unable to apply the

traditional totality of the circumstances test in this context because they will not know

all of the relevant facts at the time of an arrest,” the majority responded:

  But because “[t]he police are presumably familiar with the mechanics and time
  involved in the warrant process in their particular jurisdiction,” we expect that
  officers can make reasonable judgments about whether the warrant process
  would produce unacceptable delay under the circumstances. Reviewing courts
  in turn should assess those judgments “‘from the perspective of a reasonable
  officer on the scene, rather than with the 20/20 vision of hindsight.’”35

       Thus, as with Schmerber, the analysis is not that complex. Was it reasonable,

based on the facts known to the officer, to believe that the time it would take to obtain


  33
       McNeely, 133 S. Ct. at 1561-63.
  34
       See argument, p. 14.
  35
       McNeely, 133 S. Ct. at 1564 n.7 (citations omitted).

                                               11
a warrant would result in “the destruction of evidence”? Although elimination is not

the only fact to be considered, it appears clear that any significant delay due to the

unavailability of a magistrate—taking into account available technology—will result

in a loss of evidence and make a warrantless blood draw reasonable. This delay

should be considered in light of the time that has already elapsed between the

apparent consumption of alcohol and the point at which an intoxication-based arrest

was made.

       It is also why exigency is still the rule in most jurisdictions rather than the

exception. Yes, “some delay between the time of the arrest or accident and the time

of the test is inevitable regardless of whether police officers are required to obtain a

warrant[,]” and this reality undermines the argument for “a categorical exception to

the warrant requirement because BAC evidence ‘is actively being destroyed with

every minute that passes.’”36 And, of course, there might be “situation[s] in which the

warrant process will not significantly increase the delay before the blood test is

conducted.”37 But “exigent circumstances justifying a warrantless blood sample may

arise in the regular course of law enforcement due to delays from the warrant




  36
       Id. at 1561.
  37
       Id. (emphasis added).

                                          12
application process.”38 “[T]he fact that a particular drunk-driving stop is ‘routine’ in

the sense that it does not involve ‘special facts,’ such as the need for the police to

attend to a car accident, does not mean a warrant is required.”39 “Other factors

present in an ordinary traffic stop, such as the procedures in place for obtaining a

warrant or the availability of a magistrate judge, may affect whether the police can

obtain a warrant in an expeditious way and therefore may establish an exigency that

permits a warrantless search.”40

Application

        Appellant relies on the same “gradual and predictable” and “now or never”

language that the Supreme Court warned was not the sum of the analysis.41 Again,

the question is not whether, in hindsight, it might not have taken any longer to obtain

a warrant than it took for a warrantless search or seizure. Nor is it whether a warrant

could have been obtained; obtaining a warrant is rarely an impossibility and is often

done “easily.”42 Rather, the question is whether a reasonable officer would have



   38
        Id. at 1563 (emphasis added).
   39
        Id. at 1568 (citations omitted).
  40
        Id. (citations omitted). Again, it is the “anticipated delays in obtaining a warrant” that justify
the officer’s belief, not the actual delays in hindsight. Id. (emphasis added).
   41
        App. Br. at 21-22.
   42
        App. Br. at 23.

                                                   13
believed that the warrant process, easy or not, would produce an unacceptable delay

under the circumstances. The undisputed, basic circumstances surrounding blood

warrants in Williamson County satisfy this test under Schmerber and McNeely.

        As McNeely acknowledged, “improvements in communications technology do

not guarantee that a magistrate judge will be available when an officer needs a

warrant after making a late-night arrest.”43 That is the case here, as there was no

magistrate at the jail that night44 and no technological developments like video

conferencing in this jurisdiction.45 As a result, it takes at least two hours to get a

warrant signed after hours in Williamson County.46 This is the same delay deemed

reasonable in Schmerber. The result should be the same in this case.

        Even if it would have been reasonable to commit to a two hour delay had this




   43
        133 S. Ct. at 1562.
   44
        5 RR 53.
   45
        McNeely, 133 S. Ct. at 1562. Even the technological tools for obtaining a warrant the old-
fashioned way are somewhat lacking. For example, there is a patrol room near the booking desk
with computers containing forms that one can prepare for a judge, but “some of the computers are
fairly old” and printers may not be set up for them. 5 RR 89. “[I]t’s a headache.” 5 RR 89.
Additionally, until the Legislature amends or supplements TEX . CODE CRIM . PROC. article 18.01(b)
to specifically and comprehensively regulate the process of obtaining search warrants by telephonic
or other electronic means, “the question of whether the circumstances of an individual telephonic
warrant application will suffice to satisfy the solemnizing function of the oath requirement under
Article 18.01(b) will have to be resolved on a case-by-case basis.” Clay v. State, 391 S.W.3d 94,
103-04 (Tex. Crim. App. 2013).
   46
        5 RR 56; 7 RR 67 (2 to 3 hours in an emergency).

                                                14
been a typical 15-20 minute DWI traffic stop,47 this was far from the typical case.

The facts available to Detective Waldon leading up to contact with appellant were as

follows:

        •      The 911 call put the hit-and-run at around 9:30 or 9:45 p.m.48

        •      Waldon arrived at the scene at 10:05, having no reason to suspect DWI
               and following protocol for a hit-and-run.49

        •      Investigation led to appellant’s house, where Waldon arrived at 10:14
               still believing this was a traffic matter.50

        •      When Ferrell, appellant’s girlfriend, answered the door, she appeared
               upset and said appellant had a gun.51

        The mention of a firearm immediately changed the nature of the situation.52

The situation was defused quickly and appellant came from the back of the house,

albeit without a firearm.53 Deputy Hammett proceeded to “clear” the residence of

firearms and people “[t]he second Detective Waldon placed the subject in



   47
        7 RR 88-89, 94.
  48
        6 RR 176; State’s 1 (CAD report); 5 RR 67. See Derichsweiler v. State, 348 S.W.3d 906,
914 (Tex. Crim. App. 2011) (information known to dispatcher is imputed to officer on the scene).
   49
        5 RR 20-21; 6 RR 175, 178.
   50
        6 RR 206, 244.
   51
        5 RR 23; 6 RR 146, 185.
   52
        5 RR 72.
   53
        5 RR 27; 6 RR 190-91.

                                              15
handcuffs[,]”54 which was by 10:16.55 Waldon remained inside with appellant, who

had a cut across his nose.56 At some point, appellant told Waldon to just take him to

jail, but Waldon told him he did not know what he would be going for yet.57 After

Ferrell came back in, she and appellant began “a little bit of back and forth” after she

said appellant fell and he said she hit him.58 That, combined with the weapon and the

cut across appellant’s nose, led Waldon to take appellant outside to separate them on

suspicion of a “family violence situation.”59

       Meanwhile, Hammett grew concerned when the first sweep of the house did

not reveal any weapons, so Ferrell guided him to them.60 After securing the weapons,

the investigation “had gotten so broad that [Hammett] didn’t have a clear

understanding of what [they] were investigating.”61 It was “dramatically different”




  54
       7 RR 82.
  55
       5 RR 29; 6 RR 246.
  56
       6 RR 192-93, 195.
  57
       6 RR 205.
  58
       5 RR 41; 6 RR 195, 203.
  59
       6 RR 195-96, 203.
  60
       7 RR 82-83.
  61
       7 RR 83.

                                          16
from the way a DWI usually investigation unfolds.62

        Once Waldon was able to speak with appellant, he believed appellant appeared

intoxicated.63 Appellant admitted he “hit that truck.”64 Waldon Mirandized him

because “it seemed more than likely that [appellant] would be arrested at that point.”65

Waldon could not release appellant’s hands to perform SFSTs at the scene due to

officer safety.66 Appellant was placed in a patrol car at 10:26 because it was secure,

allowing Waldon to finish sorting out the scene.67 Waldon was unsure of the offenses

for which he could arrest appellant without a warrant,68 but DWI and family violence

were two options.69 He spoke with Ferrell for 10 to 15 minutes and took pictures of




   62
        7 RR 83-84.
   63
        5 RR 33; 6 RR 202.
   64
        6 RR 204.
   65
        6 RR 204, 206.
   66
        6 RR 216-17; 7 RR 35, 95-96.
   67
        6 RR 205, 249.
   68
        7 RR 20-21.
  69
        In this case, he could have arrested appellant without a warrant for driving while intoxicated
under TEX . CODE CRIM . PROC. art 14.03(a)(1) because it is a breach of the peace and appellant’s
home would be a suspicious place under the circumstances. Gallups v. State, 151 S.W.3d 196, 201-
02 (Tex. Crim. App. 2004). Appellant also could have been arrested without a warrant on probable
cause of family violence. TEX . CODE CRIM . PROC. art 14.03(a)(4). Both offenses were raised by the
rapidly unfolding circumstance.

                                                 17
appellant’s truck.70 By 10:58, appellant was en route to the jail.71

        If the two hours it would have taken to obtain a warrant that night once a DWI

arrest was made did not present an exigency, the additional time attributable entirely

to appellant did. Assume the accident took place at 9:45. If appellant remains at the

scene, the 911 call is made almost immediately and Waldon gets there within minutes

to make an uneventful DWI arrest. If appellant never grabs a gun, Waldon makes an

uneventful DWI arrest at his house 30 minutes after the accident. Instead, Waldon

could not even perform SFSTs because of the danger posed by an unrestrained,

intoxicated man with possible access to firearms. Appellant’s allegation that Ferrell

hit him further extended the investigation into domestic violence. All told, there is

an additional hour delay created entirely by appellant’s actions. Any reasonable

officer would conclude that a three-hour delay between the intoxicated driving and

a blood draw would risk the destruction of too much reliable, probative evidence.72

        Appellant’s arguments look at the circumstances in piecemeal fashion instead


   70
        7 RR 22-23.
   71
        6 RR 215.
   72
       Waldon agreed that defendants are sobering up the entire time a warrant is being sought, 7
RR 63, and the DPS analyst explained the diminished utility of retrograde extrapolation. 5 RR 168-
70. A reasonable officer would also assume that the drinking took place before the driving while
intoxicated, adding an unknown amount of time to the dissipation of alcohol. In this case, the receipt
from the restaurant found during processing shows the tab was closed at 8:11. 5 RR 95; 6 RR 219;
7 RR 39; State’s Ex. 8 (admitted 6 RR 40).

                                                 18
of collectively. It is true that accident investigation, without more, does not create

exigent circumstances.73 The key phrase is “without more.” It cannot be overstated

that this was not even close to a typical accident investigation. The “more” in this

case is flight from the scene, the threat of a firearm, and reasonable suspicion of

domestic violence. Appellant also argues that there was “clearly” no exigency caused

by the threat of a firearm because that particular threat was ended in 12 minutes.74

But this 12-minute delay did not occur in a vacuum. The fact that precipitated the

protective sweep—an upset woman telling police someone inside had a gun—cast a

shadow over everything that took place afterwards.

       Appellant also states that the number of available officers cuts against exigency

because any one of them could have obtained a warrant, especially after 11:00 p.m.75

But the circumstances created by appellant made Waldon the only officer with the

knowledge to get a warrant. Because of the gun, Waldon was the only officer to

speak with appellant at his house. Waldon observed appellant’s appearance and

heard his admission to hitting the truck. Moreover, no other officer could arrest

appellant for DWI without investigating to establish the house was a suspicious



  73
       App. Br. at 23 (citing Douds, 434 S.W.3d at 854).
  74
       App. Br. at 23.
  75
       App. Br. at 23.

                                              19
place.76 So the number of officers who could have driven away with appellant for

DWI was irrelevant. A warrantless arrest could have been made for family violence,

but that required further investigation. Again, Waldon was in the best position to

continue that investigation: Ferrell made her alarming statement to him, and he was

the witness to their “back and forth.” Although the presence of a third officer allowed

Waldon to leave appellant in another officer’s vehicle to briefly interview Ferrell

once the house was cleared, that officer could do nothing until that investigation was

complete. The number of other officers in the county, or even on the scene, is

irrelevant under these facts.

        There are post-McNeely cases in which the record did not show an exigency,

but they are all distinguishable.77 None come close to the unique facts presented in

   76
        Appellant made this an issue at trial through his questioning of Waldon and his request for
a jury instruction. 7 RR 20-21, 8 RR 9, 17-18; 1 CR 117.
   77
        See Leal v. State, 452 S.W.3d 14, 19, 24 (Tex. App.–Houston [14th Dist.] 2014, pet. filed,
remanded Mar. 25, 2015, for consideration of preservation of Fourth Amendment argument) (near
collision between suspect and officer immediately resulted in a DWI investigation and there was “no
evidence regarding what [the officer] knew about the time needed to obtain a warrant”); Evans v.
State, 14-13-00642-CR, 2015 Tex. App. LEXIS 1237 at *17 (Tex. App.–Houston [14th Dist.] Feb.
10, 2015) (motion for rehearing filed Feb. 24, 2015) (not designated for publication) (“the record
reflects that Trooper Robinson believed he had time to secure a warrant”); Bowman v. State,
05-13-01349-CR, 2015 Tex. App. LEXIS 1285 at *35 (Tex. App.–Dallas Feb. 10, 2015) (motion
for rehearing filed Feb.25, 2015) (not designated for publication) (“The record shows Hoya had
access to technology that enabled him to prepare a warrant application remotely using a form
document.”); State v. Anderson, 445 S.W.3d 895, 911 (Tex. App.–Beaumont 2014, no pet.) (“Indeed,
the evidence at the suppression hearing indicates that there was a judge available and on stand-by,
that there were other law enforcement officers and two assistant district attorneys on the scene, as
well as attorneys and staff at the courthouse who were available.”); Forsyth v. State, 438 S.W.3d
                                                                                      (continued...)

                                                20
this case.

The overwhelming evidence and appellant’s trial strategy rendered any error harmless

        Should the Court of Criminal Appeals affirm its opinion in Villarreal and this

Court find that exigent circumstances did not exist, the error in admitting the BAC

was harmless beyond a reasonable doubt.78 Viable considerations in determining

harm under Rule 44.2(a) include “the nature of the error (e.g., erroneous admission

or exclusion of evidence, objectionable jury argument, etc.), whether it was

emphasized by the State, the probable implications of the error, and the weight the

jury would likely have assigned to it in the course of its deliberations.”79 “But they

are not exclusive considerations in any particular case; many other considerations

may logically serve to inform a proper harm analysis in a given case.”80 “While the

most significant concern must be the error and its effects, the presence of

   77
     (...continued)
216, 219 (Tex. App.–Eastland 2014, pet. ref’d) (“the trial court found that Officer McDaniel did not
make an attempt to obtain a warrant even though the officer was aware that there were magistrates
available twenty-four hours a day at the central booking facility located about the same distance
away from the stop as the hospital.”); Sutherland v. State, 436 S.W.3d 28, 40-41 (Tex.
App.–Amarillo 2014, pet. filed) (“A magistrate is available twenty-four hours a day, every day. . .
. Likewise, a phlebotomist is always available, either mere feet down the hall from the magistrate
on at least five days of the week or on call at any other time.”); Douds, 434 S.W.3d at 855 (there was
“nothing whatsoever in the record regarding what Officer Tran knew about the time needed to obtain
a warrant”).
   78
        See TEX . R. APP . P. 44.2(a).
   79
        Snowden v. State, 353 S.W.3d 815, 822 (Tex. Crim. App. 2011).
   80
        Id.

                                                 21
overwhelming evidence supporting the finding in question can be a factor in the

evaluation of harmless error.”81 “Stated in an interrogatory context, a reviewing court

asks if there was a reasonable possibility that the error, either alone or in context,

moved the jury from a state of nonpersuasion to one of persuasion as to the issue in

question.”82

       In this case, there is no reasonable probability that the erroneous admission of

BAC evidence “moved the jury from a state of nonpersuasion to one of persuasion.”

The jury was charged with both theories of intoxication,83 and there was

overwhelming evidence of appellant’s drunkenness. Appellant drank approximately

seven 22 oz. beers between 5:00 or 5:3084 and when the waitress noticed he was

falling asleep, yanked his beer, and started serving him rolls and water.85 She was

concerned about him and asked his friend, whom she knew, to text her when

appellant got home.86 She was right to be worried; appellant hit a parked truck going



  81
       Wesbrook v. State, 29 S.W.3d 103, 119 (Tex. Crim. App. 2000) (citations omitted).
  82
       Id. (citations omitted).
  83
        1 CR 96-97. Unlike prosecution under TEX . PENAL CODE § 49.04(d), the actual BAC was
not an element of the offense.
  84
       6 RR 53-54, 70, 73.
  85
       6 RR 55-56.
  86
       6 RR 59, 75.

                                             22
less than 10 miles per hour87 on his own street. He fled, which is evidence of

consciousness of guilt.88 When he got home, he was argumentative with his wife, told

her he did not want to go to jail, and grabbed a gun.89 Appellant fell and cut his nose

because he could not keep his balance.90 Detective Waldon described his slow,

slurred speech, his glassy eyes, the odor of alcohol, and his unsteady and lethargic

nature.91 Appellant eventually refused SFSTs, which is also evidence of guilt.92

        Although the State mentioned the BAC in its closing arguments,93 it spent the

vast majority of its time on appellant’s obvious impairment. Its rebuttal was

especially forceful. The prosecutor recounted the ways in which appellant’s actions

evinced loss of mental faculties: the math mistake on the restaurant bill, the poor

judgment exercised in driving despite having a ride available, his apparent suicidal

thoughts, being argumentative with his wife, his lack of responsiveness to police


   87
        6 RR 86.
   88
        Clayton v. State, 235 S.W.3d 772, 781 (Tex. Crim. App. 2007).
   89
        6 RR 140-41.
   90
        6 RR 195, 202.
   91
        6 RR 202.
   92
        See Bartlett v. State, 270 S.W.3d 147, 153 (Tex. Crim. App. 2008) (“Evidence of the
appellant’s refusal to submit to a breath test is relevant for precisely the reason that the trial court
identified in the contested jury instruction, namely, that it tends to show a consciousness of guilt on
his part.”).
   93
        8 RR 51-52, 57, 82-83.

                                                  23
commands, and his inability to answer questions consistently.94 “And really, we

could stop here, and I could ask you to find him guilty beyond a reasonable doubt

because I don’t have to show that he lost his physical faculties or that he was .08 or

more.”95

        But she showed them anyway: appellant was slumped over at the restaurant,

he drove into a parked vehicle, he fell over and cut his nose, he had trouble standing,

he had slurred speech and glassy eyes, and he was lethargic.96 She briefly mentioned

the BAC and defended its results,97 but then went back to how “[e]veryone that (sic)

came in contact with the defendant that night said he was intoxicated[,]” including

his friend, a waitress with no interest in the outcome of the case, and his girlfriend.98

She recounted the sheer volume of alcohol he drank, and reminded the jury that his

words and actions after the accident show a cover up.99 Finally, she established the

time line to show that he was intoxicated at the time of the accident.100


  94
        8 RR 78-80.
  95
        8 RR 80.
  96
        8 RR 81-82.
  97
        8 RR 82-83.
  98
        8 RR 83-84.
  99
        8 RR 84-85.
  100
        8 RR 85-86.

                                           24
        Not only did defense counsel not contest appellant’s intoxication, they argued

that BAC was irrelevant. “[T]he key this case,” the defense argued, was the “wide

open” “window” between the time appellant closed out his tab and when 911 was

called.101 “The reason that’s so important, and something y’all should focus on when

you’re talking in the back, is because that is the opportunity that [appellant] had to

go home and drink.”102 He then described the absence of direct evidence on what he

called “this extended period of time when [appellant] is home drinking beer.”103 “And

. . . the reason that that’s so terribly important in this case, is it means that the blood

evidence . . . is meaningless.”104 He argued that the lack of evidence establishing the

timing of appellant’s drinking made Waldon’s observations irrelevant, as well.105

Defense counsel questioned the value of the testimony of appellant’s friend and the

waitress, and cast vague aspersions at the quality of investigation and DPS’s

procedures,106 but never strayed far from his argument that “the blood is really not a

portion of the evidence . . . that you should really consider because it happened after


  101
        8 RR 59.
  102
        8 RR 59.
  103
        8 RR 60-62.
  104
        8 RR 62.
  105
        8 RR 63.
  106
        8 RR 64-69.

                                            25
he drank [at home].”107 “[A]gain, to reiterate the focus that we ask you to have in this

case, is focus on that window. Focus on that period of time when [appellant] was

drinking at home.”108

        Defense co-counsel continued that line of argument.109 “You don’t even know

the time he was driving; how could you know whether he was intoxicated at the time

of driving?”110 He then explained at length how reasonable it was for someone in

appellant’s position, and with his history, to get home and then get drunk.111

Conclusion

        Regardless of whether section 724.012(b) constitutionally authorized the

warrantless blood draw, the facts of this case present an exigency that made it

reasonable. And, as it turns out, the BAC was unnecessary because the evidence of

appellant’s intoxication was not only overwhelming but undisputed, as his strategy

was to attack its timing instead. This point of error should be overruled.




  107
        8 RR 67.
  108
        8 RR 69.
  109
        8 RR 71-72.
  110
        8 RR 72.
  111
        8 RR 73-75.

                                          26
Response to Issue 2: There was no disputed issue of fact for the jury to decide

         Article 38.23 requires a trial court to instruct the jury that it shall disregard any

evidence obtained in violation of the law. But this requirement arises only when

there is a disputed issue of material fact, and appellant did not present one.112

Law

         In any case where the legal evidence raises an issue as to whether evidence was

obtained in violation of the law, the jury shall be instructed that if it believes, or has

a reasonable doubt, that the evidence was so obtained it shall disregard it.113 There

are three requirements.

         First, the issue raised must be one of fact.114 This requirement is based both on

law and practicality. “The jury decides facts; the judge decides the application of the

law to those facts.”115 Moreover, the standards used to determine Fourth Amendment

questions are “fluid concepts that take their substantive content from the particular




   112
         As a threshold matter, the existence of a warrant or exigent circumstances is material only
if the statutory blood draw was unconstitutional and the exclusionary remedy applies.
   113
         TEX . CODE CRIM . PROC. art. 38.23(a).
   114
         Madden v. State, 242 S.W.3d 504, 510 (Tex. Crim. App. 2007).
   115
       Id. at 511 (citing TEX . CODE CRIM . PROC. art. 36.13 (“Unless otherwise provided in this
Code, the jury is the exclusive judge of the facts, but it is bound to receive the law from the court and
be governed thereby.”)).

                                                   27
contexts in which the standards are being assessed.”116 “The jury, however, is not an

expert on legal terms of art or the vagaries of the Fourth Amendment[,]” and asking

them to determine probable cause or exigent circumstances “would require a lengthy

course on Fourth Amendment law.”117

         Second, the evidence on that fact must be affirmatively contested. Where the

issue raised by the evidence at trial does not involve controverted historical facts, but

only the proper application of the law to undisputed facts, that issue is properly left

to the determination of the trial court as a question of law.118 Such is the case with

Fourth Amendment rulings on undisputed facts.119

         Third, the disputed fact must be “material,” i.e., “an essential one in deciding

the lawfulness of the challenged conduct.”120 “[I]f other facts, not in dispute, are

sufficient to support the lawfulness of the challenged conduct, then the disputed fact

issue is not submitted to the jury because it is not material to the ultimate

   116
         Ornelas v. United States, 517 U.S. 690, 696 (1996).
   117
         Madden, 242 S.W.3d at 511.
   118
         Robinson v. State, 377 S.W.3d 712, 719 (Tex. Crim. App. 2012); Madden, 242 S.W.3d at
510.
  119
        See, e.g., Mills v. State, 296 S.W.3d 843, 845 (Tex. App.–Austin 2009, pet. ref’d) (“Whether
reasonable suspicion is present is a question of law for the trial court when there is no dispute
concerning the existence of the underlying historical facts from which that determination is made.”);
Douds, 434 S.W.3d at 855 (“Whether those facts meet the legal standard of exigent circumstances
is a legal question that we review de novo.”).
   120
         Madden, 242 S.W.3d at 510-11.

                                                28
admissibility of the evidence.”121

Application

        Appellant asked the trial court to submit the following instruction:

  If you believe, or have a reasonable doubt thereof, that the Defendant’s blood
  was drawn without a warrant or exigent circumstances then you shall disregard
  any evidence obtained as a result of that blood draw.122

This question presents no disputed issues of fact for the jury to consider. “It is

undisputed that Appellant refused consent to the blood draw and that a warrant was

not obtained in this case.”123 Likewise, appellant makes no argument that any other

facts are in dispute. Rather, his argument that there were no exigent circumstances

is based entirely on the facts as told by the officers involved and the testimony of

present and former prosecutors, which was consistent.124            The chronology,

explanation for any delays, reasons for the officers’ actions, and the time it would

have taken to obtain a warrant are virtually undisputed. The requested instruction is

what it appears to be—a request for the jury to make a legal determination based on




  121
        Id. at 510.
  122
        1 CR 117 (Instruction (4)).
  123
        App. Br. at 14.
  124
        App. Br. at 22-26.

                                          29
undisputed facts.125 This is not permitted.

Conclusion

         Appellant was not entitled to his requested question because he did not seek

the resolution of a disputed factual issue. The trial court was correct, and this point

of error should be overruled.

Response to Issue 3:          The Ex Post Facto Clause does not apply to
                              enhancement provisions like 49.09

         In his final point of error, appellant argues that the use of his prior DWI

convictions to increase his punishment was impermissible because of the version of

section 49.09 in effect at the time of those convictions.126 Section 49.09 is not, nor

has it ever been, a substantive offense or a promise that any convictions would not

be used for any purpose in the future. As such, the Ex Post Facto Clause is

inapplicable.

         The Ex Post Facto Clause prohibits four types of laws:

   1st. Every law that makes an action done before the passing of the law, and
   which was innocent when done, criminal; and punishes such action. 2d. Every
   law that aggravates a crime, or makes it greater than it was, when committed.


  125
        Cf. Madden, 242 S.W.3d at 512 (“What appellant wanted was a jury instruction on whether
the totality of facts that Officer Lily listed constituted ‘reasonable suspicion’ under the Fourth
Amendment.”); White v. State, 201 S.W.3d 233, 248-49 (Tex. App.–Fort Worth 2006, pet. ref’d)
(“There was no dispute, however, as to the facts upon which the exigent circumstances were
determined.”).
   126
         TEX . PENAL CODE § 49.09.

                                               30
   3d. Every law that changes the punishment, and inflicts a greater punishment,
   than the law annexed to the crime, when committed. 4th. Every law that alters
   the legal rules of evidence, and receives less, or different, testimony, than the
   law required at the time of the commission of the offence, in order to convict the
   offender.127

“[T]he plain and obvious meaning and intention of the prohibition is this; that the

Legislatures of the several states, shall not pass laws, after a fact done by a subject,

or citizen, which shall have relation to such fact, and shall punish him for having

done it.”128

Application

         Appellant is apparently relying on the fourth prohibition.129 Regardless of the

prohibition upon which he relies, a subsequent change in applicable enhancement

provisions is not an ex post facto violation. “Both the United States Supreme Court

and [the Court of Criminal Appeals] have addressed the issue of prior crimes used to



   127
        Carmell v. Texas, 529 U.S. 513, 522 (2000) (quoting Calder v. Bull, 3 U.S. 386, 390, 1 L.
Ed. 648 (1798)). Appellant’s complaint is based on the Texas Constitution. The Court of Criminal
Appeals has adopted the Supreme Court’s definition of “ex post facto” in interpreting the same term
found in Article I, Section 16 of the Texas Constitution, Grimes v. State, 807 S.W.2d 582, 586 (Tex.
Crim. App. 1991), but has more recently only assumed both clauses are coextensive. Scott v. State,
55 S.W.3d 593, 595 n.2 (Tex. Crim. App. 2001). Because appellant “points to nothing unique in
Texas history, law, or jurisprudence which would require, or even suggest a basis for, Texas courts
to deviate from Supreme Court precedent on this issue[,]” Cobb v. State, 85 S.W.3d 258, 267 (Tex.
Crim. App. 2002), they will be treated interchangeably.
   128
         Calder, 3 U.S. at 390.
   129
       App. Br. at 30 (citing only the fourth), 32 (“There is certainly a difference in the proof
required between the first statute and the second.”).

                                                31
enhance punishment and have declined to find an ex post facto violation.”130 “The

allegation of previous convictions is not a distinct charge of crimes, but . . . goes to

the punishment only. The statute, imposing a punishment on none but future crimes,

is not ex post facto.”131

         Not only has this broad issue been decided against appellant, numerous courts

of appeals have rejected an identical claim.132 In fact, this Court has four times held

that changes to the DWI enhancement provision that affect the availability of prior

convictions for enhancement purposes in the future do not violate the constitutional

prohibition on ex post facto laws.133 And, although appellant does not cite Scott or

analogize the version of 49.09 in effect at the time of his convictions to “the existence

in the prior statute of an explicit limitation on the collateral consequences of deferred




  130
        Scott, 55 S.W.3d at 597 (citing McDonald v. Massachusetts, 180 U.S. 311 (1901), and Shaw
v. State, 529 S.W.2d 75, 76 (Tex. Crim. App. 1975)).
   131
         McDonald, 180 U.S. at 313.
   132
        Conelly v. State, 451 S.W.3d 471, 478 (Tex. App.–Houston [1st Dist.] 2014, no pet.)
(collecting cases from seven other courts).
   133
        Bailey v. State, 03-09-00276-CR, 2010 Tex. App. LEXIS 4584 at *18 (Tex. App.–Austin
June 18, 2010, pet. ref’d) (not designated for publication); see also Castillo v. State,
03-07-00546-CR, 2008 Tex. App. LEXIS 6225 at *2 (Tex. App.–Austin Aug. 14, 2008, no pet.) (not
designated for publication); Townsend v. State, 03-05-00766-CR, 2007 Tex. App. LEXIS 5940 at
*1-2 (Tex. App.–Austin July 26, 2007, pet. ref’d) (not designated for publication); Saucedo v. State,
03-06-00305-CR, 2007 Tex. App. LEXIS 4292 at *10 (Tex. App.–Austin May 30, 2007, no pet.)
(not designated for publication).

                                                 32
adjudication[,]”134 this Court has made it clear that the ten-year time limitation on the

use of prior DWI convictions in the previous version of section 49.09 was not an

explicit guarantee that those convictions could not be used in the future, but only a

restriction on what prior convictions could be used to enhance a DWI offense at that

time.135

Conclusion

        As this Court has already held, nothing about the use of an enhancement

scheme in place at the time of the commission of a new offense makes the use of prior

convictions an ex post facto violation. This point of error should be overruled.

                                 PRAYER FOR RELIEF

        The State of Texas prays that appellant’s conviction be affirmed.

                                          Respectfully submitted,

                                             /s/ John R. Messinger
                                          JOHN R. MESSINGER
                                          Assistant State Prosecuting Attorney
                                          Bar I.D. No. 24053705
                                          P.O. Box 13046
                                          Austin, Texas 78711
                                          information@spa.texas.gov
                                          512/463-1660 (Telephone)
                                          512/463-5724 (Fax)

  134
        See Scott, 55 S.W.3d at 597.
  135
      Bailey, 2010 Tex. App. LEXIS 4584 at *18; Castillo, 2008 Tex. App. LEXIS 6225 at *2;
Saucedo, 2007 Tex. App. LEXIS 4292 at *10.

                                           33
                      CERTIFICATE OF COMPLIANCE

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

document contains 9,242 words.



                                         /s/ John R. Messinger
                                        JOHN R. MESSINGER
                                        Assistant State Prosecuting Attorney


                          CERTIFICATE OF SERVICE

      The undersigned hereby certifies that on this 2nd day of April, 2015, the State’s

Supplemental Brief on the Merits has been e-filed with the Court and served

electronically to the following:

Lauren McLeod
Assistant District Attorney
Williamson County District Attorney’s Office
405 M.L.K. Street, Suite 265
Georgetown, Texas 78626
lmcleod@wilco.org

Kristen Jernigan
Attorney at Law
207 S. Austin Ave.
Georgetown, Texas 78626
Kristen@txcrimapp.com

                                          /s/ John R. Messinger
                                        JOHN R. MESSINGER
                                        Assistant State Prosecuting Attorney


                                          34
