Affirmed and Majority and Dissenting Opinions filed October 15, 2013.




                                      In The

                    Fourteenth Court of Appeals

                              NO. 14-12-00642-CR

                      KENNETH LEE DOUDS, Appellant
                                        V.

                       THE STATE OF TEXAS, Appellee

      On Appeal from the County Court at Law No. 1 & Probate Court
                         Brazoria County, Texas
                      Trial Court Cause No. 180270

                      MAJORITY OPINION
      Appellant Kenneth Lee Douds was charged with driving while intoxicated;
after the trial court denied his motion to suppress evidence, he pleaded guilty to a
reduced charge as part of a plea agreement. In this appeal, he challenges the trial
court‟s order denying his motion to suppress and argues that a section of the Texas
Transportation Code is unconstitutional. We affirm.
                                 BACKGROUND

      At about 2:34 a.m. on May 16, 2010, Officer Andre Tran of the Pasadena
Police Department responded to a call regarding an automobile accident. Two
vehicles were involved in the accident; the occupants of both vehicles were friends
who recently had left the same party. The appellant and his wife were in one
vehicle, and the appellant was driving when he struck the other vehicle. The
appellant appeared to be highly intoxicated.

      Pearland EMS was called to address injuries at the scene. The appellant‟s
wife complained of chest and rib pain, and she said that she could not move her
right arm. The appellant‟s wife refused to be taken to the hospital by Pearland
EMS; according to testimony, the driver of the other vehicle told Officer Tran that
she would take the appellant‟s wife in for medical treatment.

      After the appellant‟s wife left with her friends, the appellant was arrested
and taken to the Pearland Police Department.          Video from the police car‟s
dashboard camera indicates that Officer Tran arrived at the accident scene at 2:36
a.m., and that he helped appellant get out of a police car at the Pearland Police
Department at 3:33 a.m. Once at the police department, Officer Tran read a
statutory warning to appellant regarding his ability to refuse to voluntarily supply a
breath sample.    When Officer Tran requested a breath sample, the appellant
refused to consent. At that point, Officer Tran took the appellant to a local medical
center for a mandatory blood draw.

      The appellant filed a motion to suppress the blood specimen taken during the
mandatory blood draw. At a hearing on that motion, Officer Tran testified that he
ordered the mandatory blood draw “based on the [totality] of the circumstances
and based on my belief that [the appellant‟s] wife was hurt and that [sic] need
medical attention.” Also during that hearing, video clips taken from the dashboard
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camera recording of the incident were played. In response to questions from the
appellant‟s counsel, Officer Tran testified that the appellant‟s wife had not
promised to go to a hospital but stated that he still believed she would seek medical
attention that night.

      The trial court denied the appellant‟s motion to suppress, and the appellant
pleaded guilty to a reduced charge as part of a plea agreement. In this appeal, the
appellant challenges the trial court‟s denial of his motion to suppress and alleges
that section 724.012(b)(1)(C) of the Texas Transportation Code is unconstitutional.

                                    ANALYSIS

I.    Motion to Suppress

      The appellant argues that the trial court should have granted his motion to
suppress because the evidence “[does] not allow for any support for the possible
assertion that anyone had „been transported to a hospital or a medical facility for
medical treatment.‟”

      We review a trial court‟s ruling on a motion to suppress under a bifurcated
standard. Vasquez v. State, 324 S.W.3d 912, 918 (Tex. App.—Houston [14th
Dist.] 2010, pet. ref‟d) (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim.
App. 1997)). The trial court is the sole finder of fact and is free to believe or
disbelieve any or all of the evidence presented at a suppression hearing. Wiede v.
State, 214 S.W.3d 17, 24-25 (Tex. Crim. App. 2007). We give almost total
deference to the trial court‟s determination of historical facts, but we review de
novo the court‟s application of the law to the facts. Id. at 25. When the trial court
fails to file findings of fact, we view the evidence in the light most favorable to the
trial court‟s ruling and assume the trial court made implicit findings of fact that
support its ruling as long as those findings are supported by the record. State v.


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Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000).

      Officer Tran ordered the mandatory blood draw under the authority of
section 724.012 of the Texas Transportation Code. In relevant part, that section
provides:

      (b) A peace officer shall require the taking of a specimen of the
      person‟s breath or blood under any of the following circumstances if
      the officer arrests the person for [driving while intoxicated] and the
      person refuses the officer‟s request to submit to the taking of a
      specimen voluntarily:

      (1) the person was the operator of a motor vehicle or watercraft
      involved in an accident that the officer reasonably believes occurred
      as a result of the offense and, at the time of the arrest, the officer
      reasonably believes that as a direct result of the accident:

                      *                  *                   *

      (C) an individual other than the person has suffered bodily injury and
      has been transported to a hospital or other medical facility for medical
      treatment.

Tex. Transp. Code Ann. § 724.012(b) (Vernon 2011).

      The appellant‟s argument misstates statutory requirements for a mandatory
blood draw. The Transportation Code does not require that someone actually be
transported to a hospital or medical facility for medical treatment; rather, it
requires that the police officer ordering the mandatory blood draw reasonably
believe that someone was transported to a hospital or medical facility for medical
treatment. See id.; see also Mitchell v. State, 821 S.W.2d 420, 424-25 (Tex.
App.—Austin 1991, pet. ref‟d) (concluding, based on a predecessor of section
724.012, that a police officer was justified in obtaining an involuntary blood
sample when the officer could reasonably believe that a person injured in the
accident “was likely to die,” even though the injured person actually survived).
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      Therefore, the critical issue is whether Tran reasonably believed that the
appellant‟s wife had suffered an injury and had been transported to a medical
facility for treatment. An officer‟s reasonable beliefs are issues of fact. See e.g.,
Holmes v. State, 248 S.W.3d 194, 200 (Tex. Crim. App. 2008) (noting that
contested fact issues included “that Officer Frank did not reasonably believe that
the defendant was holding a garden hoe; that Officer Frank did not reasonably
believe that the defendant might have been involved in a „disturbance‟ with Alice
Manning; [and] that Officer Frank did not reasonably believe that the defendant
was attempting to evade detention by trotting or running away”).

      Because the trial court denied the appellant‟s motion to suppress, we assume
that the trial court implicitly determined that Officer Tran possessed the reasonable
belief required to justify the mandatory blood draw as long as that determination is
supported by the record. See Ross, 32 S.W.3d at 855. Officer Tran‟s testimony
and the video taken at the scene of the accident both support the determination that
Officer Tran reasonably believed the appellant‟s wife had suffered an injury and
had been transported to a medical facility by the time he ordered the appellant‟s
mandatory blood draw. We give almost total deference to that determination. See
Wiede, 214 S.W.3d at 25; Ross, 32 S.W.3d at 855.

      Accordingly, we overrule the appellant‟s first issue.

II.   Constitutional Challenge

      In his second issue, the appellant argues that section 724.012(b)(1)(C) is
“unconstitutional when employed to require a blood draw in an arrest for the
misdemeanor offense of driving while intoxicated.”

      The constitutionality of a statute is a question of law we review de novo.
Lawrence v. State, 240 S.W.3d 912, 915 (Tex. Crim. App. 2007); McMillian v.


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State, 388 S.W.3d 866, 870 (Tex. App.—Houston [14th Dist.] 2012, no pet.). We
begin with the presumption that the statute is valid and that the legislature did not
act arbitrarily and unreasonably in enacting it. Rodriguez v. State, 93 S.W.3d 60,
69 (Tex. Crim. App. 2002); McMillian, 388 S.W.3d at 871. If a statute can be
construed in two different ways, one of which sustains its validity, we apply the
interpretation that sustains its validity. McMillian, 388 S.W.3d at 871. The burden
rests upon the person who challenges a statute to establish its unconstitutionality.
Id. We must uphold a statute if we can determine a reasonable construction which
will render it constitutional. Ely v. State, 582 S.W.2d 416, 419 (Tex. Crim. App.
[Panel Op.] 1979); McMillian, 388 S.W.3d at 871.

      The withdrawal of a blood specimen from a person is considered a search
and seizure under the Fourth Amendment. Schmerber v. California, 384 U.S. 757,
767 (1966). The Fourth Amendment to the United States Constitution, and Article
I, Section 9 of the Texas Constitution, protect against unreasonable searches and
seizures. U.S. Const. Amend. IV; Tex. Const. art. I, § 9. A search or seizure
conducted without a warrant is per se unreasonable absent a recognized exception
to the warrant requirement. Katz v. United States, 389 U.S. 347, 357 (1967);
Walter v. State, 28 S.W.3d 538, 541 (Tex. Crim. App. 2000).

      Chapter 724 of the Texas Transportation Code, which governs this case,
mandates the taking of blood samples from persons suspected of driving while
intoxicated in certain circumstances. See Beeman v. State, 86 S.W.3d 613, 616
(Tex. Crim. App. 2002); Aviles v. State, 385 S.W.3d 110, 115 (Tex. App.—San
Antonio 2012, pet. ref‟d). Chapter 724 “gives officers an additional weapon in
their investigative arsenal, enabling them to draw blood in certain limited
circumstances even without a search warrant.” Beeman, 86 S.W.3d at 616.



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      A person who has been arrested for the offense of operating a motor vehicle
while intoxicated and in a public place is deemed to have consented to the taking
of one or more specimens of blood or breath to analyze the alcohol concentration
amount or presence of a controlled substance. Tex. Transp. Code Ann. § 724.011
(Vernon 2011); Aviles, 385 S.W.3d at 115. The person retains the right, subject to
automatic suspension of his license, to refuse to give a specimen. Tex. Transp.
Code Ann. 724.013 (Vernon 2011); Aviles, 385 S.W.3d at 115-16. However, if the
person refuses to provide a specimen voluntarily and the arresting officer
reasonably believes an individual other than the person has suffered bodily injury
and has been transported to a hospital or other medical facility for medical
treatment, then the officer “shall require the taking of a specimen of the person‟s
breath or blood.” Tex. Transp. Code Ann. § 724.012(b)(1)(C).

      The appellant contends that section 724.012(b)(1)(C) is unconstitutional in
this context because it is objectively unreasonable to order a mandatory blood draw
in non-felony cases. The entirety of appellant‟s argument reads as follows:

      In Schmerber, the Court‟s analysis that allowed for the warrantless
      seizure of a blood specimen hinged specifically on the officer‟s belief
      that he was confronted with an emergency in which a delay to obtain a
      warrant may have allowed for the destruction of evidence. Obviously,
      it is not 1966. Obviously, the expedited availability of blood seizure
      warrants is common knowledge amongst Texas law enforcement.
      More importantly, Officer Tran testified that this was never an
      intoxication assault investigation. No emergency. No felony. Not
      constitutionally cognizable.

We construe this contention liberally as an argument that the State failed to
discharge its burden to establish an exception to the warrant requirement. We
reject this argument.




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      The Supreme Court recently addressed “whether the natural metabolization
of alcohol in the bloodstream presents a per se exigency that justifies an exception
to the Fourth Amendment‟s warrant requirement for nonconsensual blood testing
in all drunk-driving cases.” Missouri v. McNeely, 133 S. Ct. 1552, 1556 (2013).
McNeely involved a driver who refused to give a breath sample when he was
stopped for erratic driving; police drove him directly to a hospital and obtained a
warrantless blood draw less than 30 minutes after the initial stop. Id. at 1556-57.
The Court held that the fact of alcohol dissipation over time, standing alone, did
not support a per se rule authorizing warrantless blood draws.          Id. at 1568.
“Because this case was argued on the broad proposition that drunk-driving cases
present a per se exigency, the arguments and the record do not provide the Court
with an adequate analytic framework for a detailed discussion of all the relevant
factors that can be taken into account in determining the reasonableness of acting
without a warrant.” Id. “[W]e hold, consistent with general Fourth Amendment
principles, that exigency in this context must be determined case by case based on
the totality of the circumstances.” Id. at 1556.

      In so holding, the Supreme Court in McNeely discussed its earlier decision in
Schmerber. The petitioner in Schmerber was arrested at a hospital while receiving
treatment for injuries suffered in an accident involving the car he had been driving.
Schmerber, 384 U.S. at 758. The arrest occurred within two hours of the accident.
Id. at 769. At the hospital, a police officer ordered a physician to take a blood
sample from the driver without obtaining a warrant.        Id. at 758, 768. After
acknowledging that “[t]he importance of informed, detached and deliberate
determinations of the issue whether or not to invade another‟s body in search of
evidence of guilt is indisputable and great,” the Court found the blood draw to be
constitutionally valid:


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        The officer in the present case, however, might reasonably have
        believed that he was confronted with an emergency, in which the
        delay necessary to obtain a warrant, under the circumstances,
        threatened „the destruction of evidence.‟ Preston v. United States,
        376 U.S. 364, 367 (1964). 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.

Schmerber, 384 U.S. at 770-71.

        McNeely states that “our analysis in Schmerber fits comfortably within our
case law applying the exigent circumstances exception.” McNeely, 133 S. Ct. at
1560.     “In finding the warrantless blood test reasonable in Schmerber, we
considered all of the facts and circumstances of the particular case and carefully
based our holding on those specific facts.” Id. “[B]ecause 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.” Id. at 1561. “This fact
was essential to our holding in Schmerber, as we recognized that, under the
circumstances, further delay in order to secure a warrant after the time spent
investigating the scene of the accident and transporting the injured suspect to the
hospital to receive treatment would have threatened the destruction of evidence.”
Id. (citing Schmerber, 384 U.S. at 770).

        Applying the teaching of McNeely and Schmerber, we reject appellant‟s
constitutional challenge to section 724.012(b)(1)(C) and its operation under the
circumstances presented in this case.


                                           9
      Nothing in McNeely or Schmerber suggests that the characterization of the
offense at issue as a misdemeanor or a felony affects the constitutional analysis.
The statute does not purport to authorize a warrantless blood draw based solely on
the natural metabolization of alcohol in the bloodstream; instead, it sets forth
multiple, specific circumstances in which a blood draw is required.                The
circumstances here do not involve solely the natural metabolization of alcohol in
the bloodstream.

      The specific circumstances at issue here involved the officer‟s reasonable
belief that an individual suffered bodily injury that warranted transportation to a
hospital or another medical facility for treatment. As in Schmerber, time had to be
taken to investigate the scene of the accident and determine the need for medical
treatment.   Video from the dashboard camera shows that at least 57 minutes
elapsed from the time Officer Tran arrived on the accident scene until he and the
appellant arrived at the Pearland Police Department.          Officer Tran read the
statutory warnings after their arrival, and the appellant refused to voluntarily give a
breath sample; the blood was drawn thereafter. These facts parallel Schmerber,
and they demonstrate that the warrantless blood draw in this case did not violate
appellant‟s constitutional rights. This holding, which is tied to the specific facts
presented on this record, comports with the Supreme Court‟s recognition that
“some circumstances will make obtaining a warrant impractical such that the
dissipation of alcohol from the bloodstream will support an exigency justifying a
properly conducted warrantless blood test.” McNeely, 133 S. Ct. at 1561.

      We overrule the appellant‟s second issue.




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                                 CONCLUSION

       Having overruled both of the appellant‟s issues, we affirm the judgment of
the trial court.


                                      /s/    William J. Boyce
                                             Justice


Panel consists of Justices Boyce, Jamison, and Busby. (Busby, J., dissenting).

Publish — Tex. R. App. P. 47.2(b).




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