                                                                             PD-0410-15
                        PD-0410-15                         COURT OF CRIMINAL APPEALS
                                                                            AUSTIN, TEXAS
                                                           Transmitted 5/13/2015 6:10:58 PM
                                                            Accepted 5/15/2015 11:22:21 AM
                                                                             ABEL ACOSTA
                        IN THE COURT                                                 CLERK
                OF CRIMINAL APPEALS OF TEXAS

ROBERT OTHELLA LEWIS             §
a/k/a ROBERT LEWIS,              §
      APPELLANT                  §
V.                               §     NO.     PD-0410-15
                                 §
THE STATE OF TEXAS,              §
    APPELLEE                     §

                               §§§

       STATE'S PETITION FOR DISCRETIONARY REVIEW

                               §§§


                              SHAREN WILSON
                              Criminal District Attorney
                              Tarrant County, Texas

                              DEBRA WINDSOR, Assistant
                              Criminal District Attorney
                              Chief, Post-Conviction
     May 15, 2015
                              DANIELLE A. KENNEDY, Assistant
                              Criminal District Attorney
                              Tim Curry Criminal Justice Center
                              401 W. Belknap
                              Fort Worth, Texas 76196-0201
                              (817) 884-1687 FAX (817) 884-1672
                              State Bar No. 02760900
                              CCAappellatealerts@tarrantcountytx.gov

                              LISA C. MCMINN
                              State Prosecuting Attorney


                    ORAL ARGUMENT IS REQUESTED
                    IDENTITY OF THE JUDGE, PARTIES,
                             AND COUNSEL

      The Hon. Sharen Wilson, Tarrant County Criminal District Attorney,

represents the State of Texas in this appeal. Additionally, representing the State on

appeal is the Hon. Danielle A. Kennedy, Assistant Criminal District Attorney and

Hon. Debra Windsor, Post-Conviction Chief. At trial, the Hon. Samuel Williams

and Hon. Graham Norris represented the prosecution.          The State’s attorneys’

address is Office of the Criminal District Attorney of Tarrant County, Tim Curry

Criminal Justice Center, 401 W. Belknap, Fort Worth, Texas 76196-0201.

      The Hon. Lisa C. McMinn is the State’s Prosecuting Attorney. Mail for the

Office of the State Prosecuting Attorney, located in the Price Daniel Sr. Building,

may be sent to P.O. Box 13046, Austin, Texas, 78711.      Appellant,      Defendant

below, is Robert Othella James Lewis. Hon. Abe Factor and Hon. Kimberly

Knapp represented Appellant at the trial court and Hon. Abe Factor continues now

to represent Appellant on appeal. Mr. Factor offices at 5719 Airport Freeway, Fort

Worth, Texas 76117.

      The State tried Appellant’s case in the Criminal District Court No. 1 of

Tarrant County, Texas, also located in the Tim Curry Criminal Justice Center. The

Hon. Jerry Woodlock presided over the case.




                                         ii
                                            SUBJECT INDEX

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

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

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

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

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

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

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

QUESTIONS PRESENTED FOR REVIEW ............................................................5

FIRST QUESTION FOR REVIEW
     Does a warrantless, nonconsensual blood draw conducted
     pursuant to TEX. TRANSP. CODE § 724.012(b) violate
     the Fourth Amendment? RR. II Supp. 107-08.

SECOND QUESTION FOR REVIEW
    Do exclusionary rule principles mandate suppression of
    blood evidence seized via a warrantless, nonconsensual,
    valid-at-the-time mandatory blood draw? TEX. CODE
    CRIM. PROC. art. 38.23(b). RR. II Supp. 107-08.

THIRD QUESTION FOR REVIEW
    Did the Fort Worth Court correctly apply the proper
    standard of review in a case where the error is of
    constitutional dimension? See TEX. R. APP. P. 44.2(a).
    Lewis, 2015 WL 1119966 at *3. RR. III 38-97.

ARGUMENT AND AUTHORITIES ........................................................................6

         FIRST QUESTION FOR REVIEW ................................................................ 8



                                                         iii
          Codification of Fourth Amendment principles ............................................ 8

          Texas' special needs framework adds to the
          reasonableness calculation .........................................................................10

           Erroneous consideration of the "Less Intrusive Means" test .....................11

           Implied-consent draws are reasonable.......................................................13

        SECOND QUESTION FOR REVIEW .........................................................14

        THIRD QUESTION FOR REVIEW.............................................................17

CONCLUSION AND PRAYER .............................................................................20

CERTIFICATE OF COMPLIANCE .......................................................................21

CERTIFICATE OF SERVICE ................................................................................22

COURT OF CRIMINAL APPEALS’ OPINION ................................ APPENDIX A




                                                      iv
                                     INDEX OF AUTHORITIES

Cases

Beeman v. State,
86 S.W.3d 613 (Tex. Crim. App. 2002) ................................................................15n

Breithaupt v. Abram,
352 U.S. 432 (1957) .................................................................................................14

Burks v. State,
454 S.W.3d 705 (Tex. App. – Fort Worth, pet. filed) ...............................................4

Clay v. State,
240 S.W.3d 895 (Tex. Crim. App. 2007) ................................................................20

Cole v. State,
454 S.W.3d 89 (Tex. App.—Texarkana 2014, pet. granted) .....................................7

Davis v. United States,
___ U.S. ___, 131 S. Ct. 2419 (2011) ......................................................................15

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

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

Holidy v. State,
No. 06-13-00261-CR, 2014 WL 1722171
(Tex. App.—Texarkana Apr. 30, 2014, pet. granted)
(mem. op., not designated for publication) ................................................................7

Hulit v. State,
982 S.W.2d 431 (Tex. Crim. App. 1998) ................................................................13

Illinois v. Krull,
480 U.S. 342 (1987) ........................................................................................ 15, 16n


                                                          v
Jones v. State,
119 S.W.3d 766 (Tex. Crim. App. 2003) ................................................................18

Karev v. State,
281 S.W.3d 428 (Tex. Crim. App 2009) ...............................................................15n

Lewis v. State,
No. 02-13-00416-CR, ___ S.W.3d ___, 2015 WL 1119966
(Tex. App.—Fort Worth March 12, 2015, pet. pending) ................................ passim

Mapp v. Ohio,
367 U.S. 643 (1961) ...............................................................................................16n

Maryland v. King,
569 U.S. ___, 133 S. Ct. 1958 (2013) ......................................................................13

McGee v. State,
105 S.W.3d 609 (Tex. Crim. App. 2003) ................................................................13

McGruder v. State,
No. 10-13-00109-CR, ___ S.W.3d ___, 2014 WL 3973089 .....................................7

McQuarters v. State,
58 S.W.3d 250 (Tex. App. – Fort Worth 2001, pet. ref’d) ......................................19

Michigan Dept. of State Police v. Sitz,
496 U.S. 444 (1990) .................................................................................................13

Michigan v. DeFillippo,
443 U.S. 31 (1979) ...................................................................................................16

Miles v. State,
241 S.W.3d 28 (Tex. Crim. App. 2007) ....................................................................9

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

Motilla v. State,
78 S.W.3d 352 (Tex. Crim. App. 2002) ..................................................................19

                                                          vi
Reeder v. State,
428 S.W.3d 930 (Tex. App.—Texarkana 2014, pet. granted) ...................................7

Segundo v. State,
270 S.W.3d 79 (Tex. Crim. App. 2008),
cert. denied, 558 U.S. 828 (2009) ............................................................................13

Skinner v. Railway Labor Executives' Ass'n,
489 U.S. 602 (1989) .................................................................................... 10, 11, 12

Smith v. State,
No. 13-11-00694-CR, ___ S.W.3d ___, 2014 WL 5901759
(Tex. App.—Corpus Christi 2014, pet. granted) .......................................................7

Snowden v. State,
353 S.W.3d 815 (Tex. Crim. App. 2011) ......................................................... 17, 18

State v. Reese,
353 Wis.2d 266, 844 N.W.2d 396 (Wis. App. 2014) ............................................16n

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

Tharp v. State,
935 S.W.2d 157 (Tex. Crim. App. 1996) ................................................................11

Thornton v. State,
145 S.W.3d 228 (Tex. Crim. App. 2004) ..............................................................16n

United States v. Peltier,
422 U.S. 531 (1975) ...............................................................................................16n

United States v. Polanco,
93 F.3d 555 (9th Cir. 1996) .....................................................................................18

Vernonia School Dist. 47J v. Acton,
515 U.S. 646 (1995) .................................................................................................12



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

Welsh v. Wisconsin,
466 U.S. 740 (1984) ...................................................................................................9


Statutes, Rules, Constitutions

TEX. CODE CRIM. PROC. art. 14.04 ...........................................................................10

TEX. CODE CRIM. PROC. art. 18.16 .............................................................................9

TEX. CODE CRIM. PROC. art. 38.23 ................................................................ 6, 14, 15

TEX. PENAL CODE § 1.07 ..........................................................................................15

TEX. PENAL CODE § 49.045........................................................................................8

TEX. TRANS. CODE § 524.012 ................................................................................. 10

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

TEX. R. APP. P. 9.4 ...................................................................................................18

TEX. R. APP. P. 44.2(a) .........................................................................................6, 17

TEX. R. APP. P. 66.3 ...................................................................................................8

U.S. CONST. amend. IV .................................................................................... passim




                                                          viii
                            IN THE COURT
                    OF CRIMINAL APPEALS OF TEXAS

ROBERT OTHELLA LEWIS                      §
a/k/a ROBERT LEWIS,                       §
      APPELLANT                           §
V.                                        §      NO.     PD-0410-15
                                          §
THE STATE OF TEXAS,                       §
    APPELLEE                              §


          STATE'S PETITION FOR DISCRETIONARY REVIEW

    TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL
APPEALS:

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

District Attorney, and respectfully urges this Court to grant discretionary review of

this cause in accordance with the rules of appellate procedure.



              STATEMENT REGARDING ORAL ARGUMENT

      Argument should be granted based on the importance of this issue to the

jurisprudence of the State. There are literally hundreds of cases winding their way

through the Texas criminal justice system in the wake of the Supreme Court’s

decision in Missouri v. McNeely, 569 U.S. ___, 133 S.Ct. 1552 (2013). More are

waiting in appellate limbo for this Court’s opinion on rehearing in State v.

Villarreal, ___ S.W.3d ___, 2014 WL 6734178 (Tex. Crim. App. 2014)

(resubmitted on reh’g     March 18, 2015).        Very few cases, however, have
                                         1
addressed the issue raised in this petition: Has the Fort Worth Court of Appeals

properly applied the correct standard of review for harmless error in this case?



                         STATEMENT OF THE CASE


      Appellant sought suppression of his blood draw results based on the

Supreme Court’s decision in McNeely, 133 S.Ct. 1552. (Tr. I 13-15). The trial

judge rejected the defense argument attacking the validity of blood seized pursuant

to the Texas implied-consent statute. (RR. II Supp. 107-08). She specifically

found that McNeely did not render the Texas implied consent laws

unconstitutional, and that the officer was permitted to rely on the statutes in

existence at the time of the arrest. Id. Subsequently, a jury convicted Appellant of

felony driving while intoxicated. RR. IV 59. He was then sentenced by that jury

to five years’ incarceration. RR. IV 134.




     STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE

      The Fort Worth Court of Appeals reversed the trial court in a published

opinion authored by Justice Lee Gabriel. Lewis v. State, No. 02-13-00416-CR, ___

S.W.3d ___, 2015 WL 1119966 (Tex. App.—Fort Worth March 12, 2015, pet.



                                            2
pending)1. Rehearing was not sought. The State files this petition, due on May 13,

2015, following one extension.



                                    STATEMENT OF FACTS

         In July of 2012, Appellant was stopped by a Bedford police officer for

erratic driving. RR. III 38-40. Appellant refused to give his name or produce an

ID, and the officer saw that Appellant had red, watery eyes, slurred speech, and

smelled of alcohol. RR. III 52-55. Appellant refused to exit his vehicle upon

request. RR. III 57. The officer pointed his Tazer at Appellant, but did not “taze”

him at this time, as Appellant finally got out of his vehicle. RR. III 60. When

asked to perform field sobriety tests, Appellant flat refused, saying he “didn’t have

to.” RR. III 60. When told he was under arrest, Appellant had to be asked five

times to turn around and put his hands behind his back before the officers warned

him that further refusal would result in him being tasered. RR. III 64. He

continued to refuse, and was tasered as a result. RR. III 64-65. Appellant fell and

hit his head on the ground when tasered. RR. III 65-66. Out of concern for his

health, the officer called for an ambulance. RR. III 66-67. EMS arrived and

removed the Tazer probes from Appellant. RR. III 76.




1
    Attached hereto as Exhibit A.
                                            3
       The police called for a tow truck to impound Appellant’s vehicle, and, after

Appellant refused ambulance transport, the officers learned that Appellant had two

prior DWI convictions.      The police then drove him to HEB hospital for the

mandatory blood draw. RR. III 78-80. Upon arrival, Appellant refused to get out

of the police car. RR. III 80.   Appellant told the officers that he had a right not to

go to the hospital. RR. III 81-82. Appellant made himself (at 6’4” and about 240

pounds) dead weight, and it took two officers to push and pull him out of the police

car. RR. III 82-84. Once inside the emergency room, Appellant began cursing. As

a result, the officers asked if they could be quickly moved to the room where the

blood would be taken. RR. III 86. Appellant refused to sign any paperwork at the

hospital. RR. III 87. When Appellant was being read his rights, he began cursing

very loudly. RR. III 90-91. He threatened the hospital staff that he would kick

them in the face if they attempted to draw his blood. It took two officers and

several hospital staff to hold him down. RR. III 92. He would not even let the

nurse check the scrape on his head. RR. III 97. The blood sample later showed that

he had 0.027 parts alcohol in his blood – more than triple the legal limit. RR. III

199.

       On appeal, the Fort Worth Court rejected the trial court’s ruling. Lewis,

2015 WL 1119966 at *2-3. The court relied on this Court’s original decision in

Villarreal, Villarreal 2014 WL 6734178, and on its own opinion in Burks v. State,

                                          4
454 S.W.3d 705, 707-08 (Tex. App. – Fort Worth, pet. filed) that the Texas

exclusionary rule did not apply to a warrantless seizure. Lewis, 2015 WL 1119966

at *3.

         In discussing the State’s harm argument, the Court focused on the testimony

of the forensic toxicologists and the fact that the State argued his blood alcohol

content in addition to arguing that he had lost the normal use of his faculties.

Lewis, 2015 WL 1119966 at *3. Specifically, the Court held:


                Although there was other evidence of Lewis’s intoxication –
         bloodshot eyes, slurred speech, and his refusal to perform field
         sobriety tests – we cannot conclude beyond a reasonable doubt that
         the blood alcohol evidence did not contribute to the jury’s verdict.
         The evidence that Lewis’s blood-alcohol content was three times the
         legal limit had a probable impact on the verdict even in light of other
         evidence indicating intoxication, and there is a reasonable possibility
         that the error might have contributed to Lewis’s conviction or
         punishment.


Id.

                            QUESTIONS FOR REVIEW



                         FIRST QUESTION FOR REVIEW

         Does a warrantless, nonconsensual blood draw conducted pursuant to TEX.

TRANSP. CODE § 724.012(b) violate the Fourth Amendment? RR. II Supp. 107-08.




                                           5
                     SECOND QUESTION FOR REVIEW

      Do exclusionary rule principles mandate suppression of blood evidence

seized via a warrantless, nonconsensual, valid-at-the-time mandatory blood draw?

See TEX. CODE CRIM. PROC. art. 38.23(b). RR. II Supp. 107-08.

                      THIRD QUESTION FOR REVIEW

      Did the Fort Worth Court correctly apply the proper standard of review in a

case where the error is of constitutional dimension? See TEX. R. APP. P. 44.2(a).

Lewis, 2015 WL 1119966 at *3. RR. III 38-97.


                     ARGUMENTS AND AUTHORITIES

      The law at the time of trial was – and still is – in flux regarding Texas’

mandatory blood draw provisions. Texas courts of appeals have grappled with the

import of Missouri v. McNeely, 133 S.Ct. 98 (2013). Indeed, this Court is in the

midst of deciding some of the issues presented herein. Whilst a November 2014

decision addressed the merits of the Fourth Amendment, the case is in flux since

this Court recently granted rehearing. Villarreal, 2014 WL 6734178. Additionally,

this Court has under submission six other McNeely-related cases, with yet another

case granted and waiting for submission. Douds v. State, 434 S.W.3d 842 (Tex.

App.—Houston [14th Dist.] June 5, 2014, pet. granted) (submitted on arguments

Mar. 13, 2015, PD-0857-14); Weems v. State, 434 S.W.3d 655 (Tex. App.—San

Antonio 2014, pet. granted) (submitted on arguments Nov. 19, 2014, PD-0635-
                                         6
14); Reeder v. State, 428 S.W.3d 930 (Tex. App.—Texarkana 2014, pet. granted)

(submitted on arguments Jan. 14, 2015, PD-0601-14); Smith v. State, No. 13-11-

00694-CR, ___ S.W.3d ___, 2014 WL 5901759 (Tex. App.—Corpus Christi 2014,

pet. granted) (submitted Apr. 29, 2015, PD-1615-CR); McGruder v. State, No. 10-

13-00109-CR, ___ S.W.3d ___, 2014 WL 3973089 (Tex. App.—Waco 2014, pet.

granted) (submitted Apr. 15, 2015, PD-1263-14); Holidy v. State, No. 06-13-

00261-CR, 2014 WL 1722171 (Tex. App.—Texarkana Apr. 30, 2014, pet. granted)

(mem. op., not designated for publication) (submitted on arguments Jan. 14, 2015,

PD-0622-14); see also Cole v. State, 454 S.W.3d 89 (Tex. App.—Texarkana 2014,

pet. granted) (briefing in progress).

         In sum, the import of McNeely on Texas's mandatory-blood-draw and

implied-consent statutes was unsettled at the time of Appellant’s trial and remains

unsettled today. Perhaps with this uncertainty in mind, the trial court had the

presence of mind to charge the jury that they could find Appellant guilty of DWI if

they found either that his blood alcohol content was above 0.08 or that he lost the

normal use of his mental or physical faculties by reason of the introduction of

alcohol into his body. Tr. I 98. The jury returned a general verdict of guilty. RR.

IV 59.

         Review should be granted in this case as well because this case involves

important questions of law that have not been finally addressed by this Court. In

                                         7
addition, this case presents questions that need resolution from this Court in light

of the conflicts in the interim appellate courts. TEX. R. APP. P. 66.3(a)(b)(c)(d)(f).

                       FIRST QUESTION FOR REVIEW

      Does a warrantless, nonconsensual blood draw conducted pursuant to TEX.

TRANSP. CODE § 724.012(b) violate the Fourth Amendment? RR. II Supp. 107-08.

      There is nothing new in this first question for review: the State merely re-

iterates the position of prosecutors from other counties across Texas whose cases

are already under consideration by this Court on a McNeely-related issue. Hence,

the State respectfully asks this Court to dispose of the instant case in a manner

consistent with the petitions in Villarreal, Douds, Weems, Reeder, Smith,

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

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

seizure occurred when the officer—at the time of the offense—possessed probable

cause that Appellant’s impaired and intoxicated conduct constituted felony DWI.

TEX. PENAL CODE § 49.045; TEX. TRANSP. CODE § 724.012(b)(2).



      Codification of Fourth Amendment principles

      The State contends that this Court’s original opinion in Villarreal failed to

consider that the implied-consent statute codified Fourth Amendment principles.




                                           8
       For instance, this Court has previously recognized a statutory codification of

the exigency exception. See Miles v. State, 241 S.W.3d 28, 39–40 n.54 (Tex.

Crim. App. 2007) (citing TEX. CODE CRIM. PROC. art. 18.16). McNeely recognized

that every case involving the dissipation of alcohol included some exigency.

McNeely, 133 S. Ct. at 1561, 1568. This ever-present exigency must be considered

when assessing the reasonableness of statutory draws.

       Combine the static alcohol-evaporation-exigency consideration with the

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

implied-consent statute extinguished a defendant’s right to refuse where an officer

possesses probable cause to believe that certain enumerated, egregious

circumstances exist. TEX. TRANSP. CODE § 724.012(b). Defendants only lose their

refusal right under carefully circumscribed scenarios involving felonious

intoxication-related offenses and/or resultant injuries necessitating hospitalization.

Id.   The statute only applies to the most serious categories of DWI offenders. This

statutory limitation amounts to a codification of an additional recognized exigency

unrelated to blood-alcohol dissipation. Welsh v. Wisconsin held that the Fourth

Amendment authorizes common-sense consideration of the underlying offense’s

gravity when weighing the existence of an exigency. Welsh v. Wisconsin, 466 U.S.

740, 751–52 (1984) (exigency calculations include consideration of a crime’s

severity). Consideration of a crime’s gravity is the essence of reasonableness

                                          9
because the State’s interest is greater in a more serious case. Cf. TEX. CODE CRIM.

PROC. art. 14.04 (authorizing warrantless arrests for felonies where an officer did

not observe the offense).

      Texas’ implied-consent legislation codified Fourth Amendment probable

cause requirements. U.S. CONST. amend. IV. Elements of the implied consent

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

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

requirement and the factual exigencies of felonious conduct and the dissipation of

alcohol together create a neutral, non-arbitrary framework authorizing a seizure

from an already-in-custody arrestee. These refinements in the implied-consent

statutes structure embrace the essence of Fourth Amendment “reasonableness.”



      Texas’ special needs framework adds to the reasonableness calculation

      The now-withdrawn Villarreal decision rejected application of the Supreme

Court’s special needs doctrine to the mandatory blood draw framework.

Villarreal, 2014 WL 6734178 at *14–15; see Skinner v. Railway Labor Executives’

Ass’n, 489 U.S. 602, 619 (1989). However, this Court did not consider that blood

drawn pursuant to Chapter 724’s mandate also implicates administrative license

revocation [ALR] procedures, a separate regulatory process that focuses on

protecting the traveling public by removing offenders from the road. See TEX.


                                        10
TRANSP. CODE § 524.012(b)(1) (mandating license suspension based upon BAC).

“The primary purpose of the administrative license suspension statute is not to

deter the licensee or to seek retribution, but to protect the public from the carnage

on the public roads of Texas caused by drunk drivers.” Tharp v. State, 935 S.W.2d

157, 159 (Tex. Crim. App. 1996). Such regulation focuses on the government’s

strong interest in removing intoxicated drivers from the road, just as railroad

regulation in Skinner sought to increase railway safety by detecting intoxicated

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

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

detached vehicle for protecting citizens from impaired drivers and defendants from

unfettered discretion. The special-needs exception constitutes another factor to

consider in analyzing Texas’ compelled-draw framework.



      Erroneous consideration of the “Less Intrusive Means” test

      The original Villarreal decision considered the ready availability of warrants

when rejecting the validity of Texas’ mandatory draw statute. Villarreal, 2014 WL

6734178, at *18 (finding no compelling need to uphold warrantless, nonconsensual

blood searches where warrants are “often readily available”). However, factors

such as electronic warrants and the availability of a magistrate shift the focus away

from an officer’s conduct and, instead, weigh considerations of alternative means.

                                         11
But see McNeely, 133 S. Ct. at 1560–64 (Part IIB’s alternative means analysis

applied when determining whether per se exigency existed). The Supreme Court

resoundingly rejected applying less-intrusive-alternative-practices arguments to

Fourth Amendment cases not resolved under the exigency exception. Vernonia

School Dist. 47J v. Acton, 515 U.S. 646, 663–64 n.3 (1995) (upholding

warrantless, random urine screening of athletes after considering diminished

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

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

suspicionless drug screening of railway employees under special needs exception

and discarding less-drastic-and-equally-effective-means arguments). One footnote

in Skinner flatly debunks the propriety of considering less-drastic alternatives in

scenarios that include warrantless and even suspicionless seizures for toxicological

testing, similar to Appellant’s facts. Id.

      The State maintains that the “less-restrictive-alternatives” paradigm only

logically applies when a seizure’s validity rests solely on the temporal factors

presenting an exigency. However, less-drastic, post-hoc what-ifs do not apply to

reasonableness calculations factoring in other warrantless exceptions. Hence, the

State contends Villarreal’s analysis mistakenly applied this construct.




                                             12
      Implied-consent draws are reasonable

      Reasonableness has always been the linchpin of the Fourth Amendment,

venerated in the provision’s plain language. U.S. CONST.       AMEND.   IV; Hulit v.

State, 982 S.W.2d 431, 435–36, 438 (Tex. Crim. App. 1998). Discernment of what

is “reasonable” requires courts to consider the balance between an individual’s

privacy and legitimate governmental interests, especially when public safety is of

utmost concern. See Maryland v. King, 569 U.S. ___, 133 S. Ct. 1958, 1979

(2013); Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 455 (1990); Segundo

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

Villarreal viewed the choice between applying a Fourth Amendment exception and

consideration of a reasonableness balancing approach as mutually exclusive

analytical constructs. The State respectfully believes that this black-white

consideration of these two concepts is mistaken, especially in light of the fact that

this Court has relied upon the balancing approach to assay reasonableness on

similar issues. See Segundo, 270 S.W.3d at 96–99; McGee v. State, 105 S.W.3d

609 (Tex. Crim. App. 2003); Hulit, 982 S.W.2d at 434 n.1, 436.

      Years ago, the Supreme Court recognized that a framework requiring a

driver’s consent was anything but nonsensical. The Breithaupt court pointed to

recently adopted implied-consent provisions and wrote:

            It might be a fair assumption that a driver on the highways in
      obedience to a policy of the State, would consent to have a blood test
                                         13
      made as part of a sensible and civilized system protecting himself as
      well as other citizens not only from the hazards of the road due to
      drunken driving, but also from some use of dubious lay testimony.


      Breithaupt v. Abram, 352 U.S. 432, 435 n.2 (1957). The State contends that

compelled draws under implied-consent provisions are inherently reasonable when

weighing the needs of all involved. Indeed, Fourth Amendment reasonableness

underpins the statute. The well-known exceptions—as argued in the myriad cases

already before this Court—considered individually and in concert with each other,

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

of Texas’ implied-consent framework.



                     SECOND QUESTION FOR REVIEW

      Do exclusionary rule principles mandate suppression of blood evidence

seized via a warrantless, nonconsensual, valid-at-the-time mandatory blood draw?

See TEX. CODE CRIM. PROC. art. 38.23(b). RR. III 38-97.

      Simply put: the rules requiring the exclusion of evidence should not apply to

mandatory blood-draw scenarios that occurred under the auspices of TEX. TRANSP.

CODE § 724.012(b)(2) and which were performed prior to the Supreme Court’s

April 2013 pronouncement.

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

rule applies when law enforcement, at the time of the search, acted objectively
                                         14
reasonably by relying on (1) a statute, later declared unconstitutional, or (2)

binding judicial precedent, subsequently overruled. Illinois v. Krull, 480 U.S. 342,

349-57 (1987) (statutes); Davis v. United States, ___ U.S. ___, 131 S. Ct. 2419,

2428-34 (2011) (caselaw).

      Under state law, the Texas exclusionary rule is not invoked because—at the

time of the offense—no violation occurred. The State recognizes that article

38.23(b)—Texas’ limited good faith exception—requires a warrant. TEX. CODE

CRIM. APP. PROC. art. 38.23(b). Notwithstanding, invocation of exclusionary rule

principles relies on article 38.23(a). That subsection’s plain language requires a

violation for exclusion to be triggered. When Appellant’s blood was drawn, no

one credibly questioned the validity of the officer’s statutory authority. 2 Both the

trial court and the Fort Worth Court made it clear in their rulings that the officer

was following the law as it existed at the time of the blood draw herein. RR. II

Supp. II 107-08. See Lewis, 2015 WL 1119966 at *2-3. In other words, at the

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

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

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

opinions of a court of record); see also Davis, 131 S.Ct. at 2427-28 (“obtained”


2
  See Beeman v. State, 86 S.W.3d 613, 615 (Tex. Crim. App. 2002); TEX. TRANSP. CODE
§724.012(b); see also Karev v. State, 281 S.W.3d 428, 434 (Tex. Crim. App 2009) (statutes
presumed constitutional until held otherwise).
                                           15
applies to unlawfulness at the time of the seizure; exclusion not triggered in an

absence of police culpability). Simply put, these circumstances should not require

exclusion. 3

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

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

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

investigatory stop where the officer misunderstood the traffic code provision he

relied on to support the stop. See Heien v. North Carolina, 135 S.Ct. 530, 534-36

(2014). The Supreme Court considered the reasonableness of the officer’s mistake

that lead to the stop and arrest when considering remedies. In so doing, the Court

pointed    out    the     myriad    decisions     finding    exclusionary-rule      invocation

inappropriate where the officer’s conduct—valid at the time—was later declared

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

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

in Michigan v. DeFillippo, 443 U.S. 31, 33, 37-38 (1979) (suggesting that

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


3
  See also United States v. Peltier, 422 U.S. 531, 541-42 (1975) (upholding suspicionless,
warrantless seizure of person by roving border patrol agents based upon constitutional-at-time
statute); Krull, 480 U.S. at 349–50 (exclusionary rule inapplicable when police rely on statute
later found unconstitutional); Mapp v. Ohio, 367 U.S. 643, 656 (1961) (exclusionary rule seeks
to deter officers from violating law to obtain evidence); Thornton v. State, 145 S.W.3d 228, 233-
34 (Tex. Crim. App. 2004) (exclusion not justified where marginal or nonexistent deterrent
benefits); accord State v. Reese, 353 Wis.2d 266, 844 N.W.2d 396, 402 (Wis. App. 2014) (no
exclusion in McNeely case since no time-of-seizure misconduct).
                                              16
flagrantly unconstitutional”) (citation omitted). Although the Heien discussion is

merely dicta, it reiterates the importance of focusing on the fact that the instant

officer’s conduct fully complied with mandatory, settled law at the time of

Appellant’s arrest. McNeely and subsequent caselaw questioning implied-consent

blood draws came later. Since no violation occurred at the time of the Appellant’s

2012 blood draw, article 38.23’s exclusionary provision does not apply. Thus, this

Court should reverse and remand this case to the Fort Worth Court for application

of the correct standards of review.



                      THIRD QUESTION FOR REVIEW

      Did the Fort Worth Court correctly apply the proper standard of review in a

case where the error is of constitutional dimension? See TEX. R. APP. P. 44.2(a).

Lewis, 2015 WL 1119966 at *3. RR. III 38-97.

      It is well settled that there is no set formula for conducting a harm analysis

that necessarily applies across the board, to every case and every type of

constitutional error. Snowden v. State, 353 S.W.3d 815, 822 (Tex. Crim. App.

2011). However, this Court has prescribed several nonexclusive factors to be

considered when conducting a harm analysis under Rule 44.2(a), including: (1) the

nature of the error, (2) the extent the error was emphasized by the State, (3) the

weight a juror would probably place on the error, and (4) the error's probable

                                        17
collateral consequences. Snowden, 353 S.W.3d at 822 n. 31. When conducting a

harm analysis in the context of a constitutional violation, appellate courts are to

“‘judge the magnitude of the error in light of the evidence as a whole to determine

the degree of prejudice to the defendant resulting from that error.’” Jones v. State,

119 S.W.3d 766, 777 (Tex. Crim. App. 2003) (quoting United States v. Polanco,

93 F.3d 555, 562–63 (9th Cir. 1996)).

      If the foregoing test had been applied properly, one would see the error in

the Fort Worth Court’s holding. First, the State was clear during voir dire about all

three ways the defendant could have been found guilty: loss of normal use of

physical faculties, loss of normal use of mental faculties, and blood alcohol content

greater than .08.   RR. II 46-53. At trial, there was ample evidence of each. See

generally State’s petition at 3-4.   Again, if the State’s argument was considered in

its entirety, this Court would see that the State referenced each definition of

intoxication and how it applied to Lewis in approximately equal proportion. RR.

IV 40; 53-54; 57-58. Both prosecutors made frequent reference to the videotape of

the stop and arrest and his appearance and behavior on the tape. RR. IV 41-42; 53-

54; 58. Defense counsels’ argument, on the other hand was limited to suggesting

the arresting officer was racist (“rogue racist policeman”) and that there was an

unspecified impropriety in the taking and testing of the blood. RR. IV 43; 44-46.




                                          18
It is also telling that the jury took less than 30 minutes to return with their guilty

verdict. RR. IV 58-59.

      In regard to the third factor, appellate courts are to consider whether the

other evidence showed culpability overwhelmingly as well as the character of the

error and how the evidence gleaned from the search might be considered in

connection with other evidence in the case. Motilla v. State, 78 S.W.3d 352, 359

(Tex. Crim. App. 2002). There was overwhelming evidence aside from the blood

test that Lewis was driving while intoxicated, including bloodshot eyes, slurred

speech, heavy smell of alcohol on his person, extreme belligerence, refusal to

comply with police requests, use of obscenities, and threats of violence toward

police and medical personnel. RR. III 38-92.

      Indeed, taken to its logical conclusion, the Fort Worth Court’s opinion

would eviscerate the constitutional harmless error argument. This DWI is not the

factual equivalent of a drug case, wherein without the introduction of the drugs,

there is no evidence to convict. See McQuarters v. State, 58 S.W.3d 250, 258

(Tex. App. – Fort Worth 2001, pet. ref’d). Instead, there was overwhelming

evidence of Lewis’s guilt without the blood draw: bloodshot eyes, slurred speech,

extreme belligerence, refusal to comply with police requests, use of obscenities and

threats of violence toward medical personnel. RR. III 38-92. There was the

arresting officer’s in car recording which corroborated much of the behavior

                                         19
indicative of the loss of normal use of Lewis’s faculties. See State’s Ex. 3. The

State contends that the Fort Worth Court’s opinion does not give appropriate

weight to this evidence in their harmless error analysis. Instead, the opinion seems

to hold that any tainted evidence of a blood draw is so overwhelming that no

amount of other incriminating evidence can overcome the error. This is simply not

the law in Texas. Clay v. State, 240 S.W.3d 895, 904 (Tex. Crim. App. 2007).

      In summary, the State believes that Villareal was wrongly decided for a

number of reasons. Instead, the State urges this Court to conclude that the Texas

statutes are sufficiently protective of defendants’ Fourth Amendment rights to pass

constitutional muster.   Also, the State contends that a proper harmless error

analysis in the case at hand, on these facts, would lead to the conclusion that any

error is harmless.



                         CONCLUSION AND PRAYER

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

be reversed. The State prays that Appellant’s felony DWI conviction should be

upheld.

                                             Respectfully submitted,

                                             SHAREN WILSON
                                             Criminal District Attorney
                                             Tarrant County, Texas


                                        20
                                             DEBRA WINDSOR, Assistant
                                             Criminal District Attorney
                                             Chief, Post-Conviction

                                             /s/ Danielle A. Kennedy
                                             DANIELLE A. KENNEDY
                                             Assistant Criminal District Attorney
                                             Tim Curry Criminal Justice Center
                                             401 W. Belknap
                                             Fort Worth, Texas 76196-0201
                                             (817) 884-1687
                                             FAX (817) 884-1672
                                             State Bar No. 12166650
                                             CCAappellatealerts@tarrantcountytx.gov



                         CERTIFICATE OF COMPLIANCE

      This document complies with the typeface requirements of Tex. R. App. P.

9.4(e) because it has been prepared in a conventional typeface no smaller than 14-

point for text and 12-point for footnotes. This document also complies with the

word-count limitations of Tex. R. App. P. 9.4 (i) because it contains less than 3400

words, excluding any parts exempted by Tex. R. App. P. 9.4(i)(1), as computed by

Microsoft Word 10, the computer software used to prepare the document.


                                             /s/ Danielle A. Kennedy
                                             DANIELLE A. KENNEDY




                                        21
                            CERTIFICATE OF SERVICE

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

to opposing counsel, Hon. Abe Factor, lawfactor@yahoo.com, 5719 Airport

Freeway,   Fort   Worth,    Texas    76117,     and   to   Hon.    Lisa   McMinn,

information@spa.texas.gov, State’s Prosecuting Attorney’s Office, P. O. Box

13046, Austin, Texas 78711, on this, the 13th day of May 2015.


                                              /s/ Danielle A. Kennedy
                                              DANIELLE A. KENNEDY




                                        22
APPENDIX




   A
                                                                                                         Page 1
Not Reported in S.W.3d, 2015 WL 1119966 (Tex.App.-Fort Worth)
(Cite as: 2015 WL 1119966 (Tex.App.-Fort Worth))




                                                          ated (DWI) and from his five-year sentence. We re-
Only the Westlaw citation is currently available.         verse the trial court's order denying Lewis's pretrial
                                                          motion to suppress and judgment and remand the
SEE TX R RAP RULE 47.2 FOR DESIGNATION
                                                          case to the trial court for further proceedings.
AND SIGNING OF OPINIONS.
                                                                           I. BACKGROUND
MEMORANDUM OPINIONDO NOT PUBLISH
                                                               Late at night on July 17, 2012, Officer Jose
TEX.R.APP. P. 47.2(B)
                                                          Lopez saw a car speeding, and then it failed to stop
          Court of Appeals of Texas,                      at a stop sign. Lopez began following the car and
                   Fort Worth.                            saw the car “fail to maintain a single lane of travel
 Robert Othella James Lewis a/k/a Robert Lewis,           ... straddl[ing] some of the lines.” Lopez pulled
                    Appellant                             over the car. Lewis was the driver and sole occu-
                        v.                                pant of the car and informed Lopez that he did not
           The State of Texas, State                      have any identification. Lewis was uncooperative
                                                          and exhibited slurred speech and “watery, red
            NO. 02–13–00416–CR                            eyes.” Lopez smelled a “strong smell of an alcohol-
          DELIVERED: March 12, 2015                       ic beverage” on Lewis's breath. After initially re-
                                                          fusing to get out of his car, Lewis eventually got
FROM THE CRIMINAL DISTRICT COURT NO.                      out after Lopez pointed his Taser at him. Lewis also
1 OF TARRANT COUNTY, TRIAL COURT NO.                      refused to perform any field-sobriety tests.
1299359D, HON. SHAREN WILSON, TRIAL
COURT JUDGE                                                    Lopez then arrested Lewis, but Lewis would
ABE FACTOR, DANIEL COLLINS FACTOR,                        not put his hands behind his back as requested.
CAMPBELL & COLLINS FORT WORTH,                            Lewis refused five times to put his hands behind his
TEXAS, ATTORNEY FOR APPELLANT                             back, and Lopez eventually fired his Taser at Lewis
                                                          after warning him that he would do so if Lewis
SHAREN WILSON, CRIMINAL DISTRICT AT-                      would not comply. After being hit by the Taser,
TORNEY; DEBRA WINSOR, CHIEF OF POST                       Lewis fell and hit his head on the ground. Lopez
CONVICTIONS; DANIELLE A. KENNEDY,                         called for an ambulance, but Lewis refused medical
SAMUEL WILLIAMS AND GRAHAM NORRIS,                        attention at the scene. Lopez handcuffed Lewis. At
ASSISTANT CRIMINAL DISTRICT ATTOR-                        this point, Lopez found Lewis's identification in his
NEY(S) FOR TARRANT COUNTY FORT                            wallet and subsequently discovered that Lewis had
WORTH, TEXAS, ATTORNEY FOR STATE                          two prior DWI convictions. As statutorily author-
                                                          ized, Lopez then took Lewis to the hospital for a
PANEL: MEIER, GABRIEL, and SUDDERTH, JJ.                  mandatory blood draw without first obtaining a
                                                          warrant. See Tex. Transp. Code Ann. §
                                                          724.012(b)(3) (West 2011). At the hospital, Lewis
                                        FN1
        MEMORANDUM OPINION                                began cursing very loudly, threatened to kick hos-
                                                          pital staff members in the face if they drew his
        FN1. See Tex. R. App. P. 47.4.
                                                          blood, and had to be held down by two officers and
LEE GABRIEL JUSTICE                                       several hospital staff members. The blood test re-
    *1 Appellant Robert Othella James Lewis ap-           vealed that Lewis had a blood-alcohol content of
peals from his conviction for driving while intoxic-      .27, which is more than three times above the legal
                                                          limit. See Tex. Penal Code Ann. § 49.01(2)(B)




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Not Reported in S.W.3d, 2015 WL 1119966 (Tex.App.-Fort Worth)
(Cite as: 2015 WL 1119966 (Tex.App.-Fort Worth))




(West 2011).                                             v.      State,    273      S.W.3d       681,       684
                                                         (Tex.Crim.App.2008). Therefore, we view the facts
     A grand jury indicted Lewis for DWI and in-         in the light most favorable to the trial court's de-
cluded a felony-repetition paragraph alleging that       cision, giving almost total deference to the trial
Lewis had twice previously been convicted of DWI.        court's express or implied determination of historic-
See id. §§ 49.04(a), 49.09(b) (West Supp. 2014).         al facts, and review de novo the court's application
Before trial, Lewis filed a motion to suppress the       of the law of search and seizure to those facts. Id.
blood-alcohol results because there were no exigent
circumstances or any other exception to the consti-           Lopez did nothing wrong at the time he had
tutional warrant requirement; thus, Lewis argued         Lewis's blood drawn without a warrant based on the
that the blood-alcohol results, which were obtained      authority of section 724.012. Similarly, the trial
without a warrant, were inadmissible. See generally      court understandably held that the statute specific-
McGee v. State, 105 S.W.3d 609, 615                      ally authorized the blood draw and was, in effect,
(Tex.Crim.App.) (delineating three exceptions to         an exception to the warrant requirement. However,
search-warrant requirement), cert. denied, 540 U.S.      the court of criminal appeals recently held that the
1004 (2003).                                             provisions in the transportation code allowing war-
                                                         rantless blood or breath samples to be taken without
     The trial court held an evidentiary hearing on      consent, including section 724.012, are alone not “a
the motion at which Lopez testified that he did not      constitutionally valid alternative to the Fourth
consider obtaining a warrant to draw Lewis's blood,      Amendment warrant requirement.” State v. Villar-
although he knew how to do so, and that he had           real, No PD–0306–14, 2014 WL 6734178, at *20
Lewis's blood drawn under the authority of section       (Tex.Crim.App. Nov. 26, 2014) (5–4 opinion),
724.012. The trial court concluded that no exigent       reh'g granted, No. PD–0306–14 (Feb. 25, 2015).
circumstances justified the warrantless blood draw       Here, the State did not argue any exception to the
but that the blood draw nevertheless was authorized      warrant requirement justified the warrantless search
by section 724.012; thus, the trial court held the       and relied solely on section 724.012. Indeed, the
blood-alcohol results admissible even in the ab-         trial court recognized there were no exigent circum-
                                           FN2
sence of a warrant and denied the motion.       The      stances dispensing with the warrant requirement.
blood-alcohol results were admitted at trial, and a      See Missouri v. McNeely, 133 S.Ct. 1552, 1563,
jury found Lewis guilty of DWI. After a punish-          1568 (2013) (holding natural metabolization of al-
ment hearing, the jury assessed his punishment at        cohol in the bloodstream does not present a per se
five years' confinement.                                 exigency justifying exception to warrant require-
                                                         ment for nonconsensual blood testing in DWI
        FN2. Although the trial court stated at the
                                                         cases). Further, Lopez's good-faith belief that the
        hearing that it would be entering findings
                                                         statute authorized the warrantless search does not
        of fact and conclusions of law, the clerk's
                                                         overcome the exclusionary rule. See Burks v. State,
        record does not include findings or conclu-
                                                         No. 02–13–00560–CR, 2015 WL 115964, at *3
        sions. In recounting the trial court's rul-
                                                         (Tex.App.–Fort Worth Jan. 8, 2015, no pet.). Based
        ings, we are relying on the trial court's
                                                         on Villarreal, the trial court erred in its application
        statements in the reporter's record from the
                                                         of the law to the facts and, thus, by denying Lewis's
        motion-to-suppress hearing.
                                                         motion to suppress.
                II. DISCUSSION
                                                                       B. HARM ANALYSIS
          A. ABUSE OF DISCRETION
                                                             We review the harm resulting from a trial
    *2 We review the denial of a motion to sup-
                                                         court's erroneous denial of a motion to suppress and
press evidence for an abuse of discretion. Shepherd




                         © 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
                                                                                                             Page 3
Not Reported in S.W.3d, 2015 WL 1119966 (Tex.App.-Fort Worth)
(Cite as: 2015 WL 1119966 (Tex.App.-Fort Worth))




subsequent admission of evidence obtained in viol-           content of over .08 percent. Well, in this case he
ation of the Fourth Amendment under the constitu-            had a blood-alcohol content of .27 percent....
tional harmless-error standard. Tex. R. App. P.
44.2(a); see Hernandez v. State, 60 S.W.3d 106,                ....
108 (Tex.Crim.App.2001) (mandating application
                                                              That's three times the legal limit. Three times.
of rule 44.2(a) to harm analysis of trial court's erro-
                                                             We know he was intoxicated.
neous denial of motion to suppress under the Fourth
Amendment). This standard requires us to reverse                Although there was other evidence of Lewis's
the trial court's judgment of conviction unless we         intoxication—bloodshot eyes, an odor of alcohol,
“determine beyond a reasonable doubt that the error        slurred speech, and his refusal to perform field-
did not contribute to the conviction or punishment.”       sobriety tests—we cannot conclude beyond a reas-
Tex. R. App. P. 44.2(a). Our primary question is           onable doubt that the blood-alcohol evidence did
whether there is a reasonable possibility that the er-     not contribute to the jury's verdict. The evidence
ror might have contributed to the conviction or pun-       that Lewis's blood-alcohol content was three times
ishment. Mosley v. State, 983 S.W.2d 249, 259              the legal limit had a probable impact on the verdict
(Tex.Crim. App.1998), cert. denied, 526 U.S. 1070          even in light of the other evidence indicating intox-
(1999). In other words, we calculate the probable          ication, and there is a reasonable possibility that the
impact the evidence had on the verdict in light of         error might have contributed to Lewis's conviction
the other evidence. McCarthy v. State, 65 S.W.3d           or punishment. See, e.g., Cole v. State, No.
47, 55 (Tex.Crim.App.2001, cert. denied, 536 U.S.          06–13–00179–CR, 2014 WL 7183859, at *10
972 (2002).                                                (Tex.App.–Texarkana Dec. 18, 2014, pet. filed); cf.
                                                           Gentry v. State, No. 12–13–00168–CR, 2014 WL
    Here, the blood-alcohol results were introduced
                                                           4215544, at *4 (Tex.App.–Tyler Aug. 27, 2014,
through the testimony of a forensic toxicologist,
           FN3                                             pet. filed) (mem. op., not designated for publica-
Joyce Ho.       She testified that Lewis's blood-al-
                                                           tion) (holding admission of blood-alcohol evidence
cohol content was .27. The chief toxicologist,
                                                           harmed defendant because court could not conclude
Robert Johnson, testified that .27 was over the legal
                                                           erroneous denial of motion to suppress did not in-
limit of .08 and that such a blood-alcohol level
                                                           fluence defendant's decision to plead guilty). In-
could result in unconsciousness or abnormal
                                                           deed, the State stressed that Lewis's blood-alcohol
“walking and talking.” Johnson also stated that it
                                                           content was the “clearest” indicator that Lewis was
was possible Lewis's blood-alcohol content was
                                                           legally intoxicated. We sustain Lewis's first issue.
higher than .27 at the time Lopez stopped him              FN4
based on retrograde extrapolation. During closing
jury arguments, the State recognized that Lewis's                     FN3. The State does not argue that Lewis's
demeanor and odor of alcohol were “signs that he                      failure to object to the admission of the
was intoxicated.” But the State continued that the                    blood-alcohol results on the basis of the
“clearest” sign of intoxication was his blood-alco-                   Fourth Amendment at trial resulted in a
hol content:                                                          waiver of his motion-to-suppress argu-
                                                                      ments, and we do not construe it to be so in
  *3 [Lewis's impaired physical and mental condi-
                                                                      the context of this case. See Thomas v.
  tion is] not the clearest reason why we know
                                                                      State,    408    S.W.3d    877,     885–86
  [Lewis was legally intoxicated]. Because remem-
                                                                      (Tex.Crim.App.2013).
  ber there's three ways in which you can find that
  the defendant was intoxicated that night.... And                    FN4. Because our conclusion regarding
  the third way is that he had ... a blood alcohol                    Lewis's first issue results in reversal of the




                           © 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
                                                                                       Page 4
Not Reported in S.W.3d, 2015 WL 1119966 (Tex.App.-Fort Worth)
(Cite as: 2015 WL 1119966 (Tex.App.-Fort Worth))




         trial court's judgment, we need not address
         Lewis's second issue raising jury-selection
         error. See Tex. R. App. P. 44.2(a), 47.1.

                III. CONCLUSION
     Because we hold that the trial court erred by
denying Lewis's motion to suppress and that there
is a reasonable possibility that this constitutional er-
ror might have contributed to Lewis's conviction or
punishment, we reverse the trial court's order deny-
ing Lewis's motion to suppress and the trial court's
judgment and remand this case to the trial court for
further proceedings consistent with this opinion.
See Tex. R. App. P. 43.2(d).


Tex.App.-Fort Worth, 2015
Lewis v. State
Not Reported in S.W.3d, 2015 WL 1119966
(Tex.App.-Fort Worth)

END OF DOCUMENT




                            © 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
