                        PD-1228-15                                            PD-1228-15
                                                             COURT OF CRIMINAL APPEALS
                                                                             AUSTIN, TEXAS
                                                           Transmitted 10/21/2015 5:30:21 PM
                                                             Accepted 10/22/2015 1:14:51 PM
                                                                              ABEL ACOSTA
                           IN THE COURT                                               CLERK
                   OF CRIMINAL APPEALS OF TEXAS

LAURA DENISE MOORE,             §
    APPELLANT                   §
                                §
V.                              §               PD-1228-15
                                §
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

                              TANYA S. DOHONEY
                              Assistant Criminal District Attorney
                              Tim Curry Criminal Justice Center
                              401 W. Belknap
     October 22, 2015
                              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 PARTIES AND COUNSEL

     The State of Texas, represented by the Hon. Sharen Wilson, Tarrant

County Criminal District Attorney, prosecutes this appeal.      Additionally,

representing the State on appeal is the Hon. Tanya S. Dohoney, Assistant

Criminal District Attorney and Hon. Debra Windsor, Assistant Criminal

District Attorney and Post-Conviction Chief. At trial, the Hon. Caroline Kim,

Assistant Criminal District Attorney, 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.

     Appellant, Defendant below, is Laura Denise Moore.          Hon. Mimi

Coffey and Hon. Joan Cochrane, 4700 Airport Freeway, Fort Worth, Texas,

76102, and represented Appellee at trial. Hon. Richard A. Henderson, 100

Throckmorton Street, Suite 540, Fort Worth, Texas 76102, represents

Appellant on appeal.

     The Hon. Scott Wisch, judge of the 372nd Judicial District Court of

Tarrant County, Texas, presided over Appellant’s case. The Second Court

of Appeals transferred this cause to the docket of the Court of Appeals for

the Eleventh District of Texas.     On August 21, 2015, an unpublished

                                      ii
opinion reversing Appellant’s conviction issued. Moore v. State, No. 11-13-

00347-CR, 2015 WL 5192175 (Tex. App.—Eastland Aug. 21, 2015). The

panel deciding the case consisted of Chief Justice Wright, Justice Willson,

and Justice Bailey.




                                    iii
                                       SUBJECT INDEX


IDENTITY OF THE PARTIES AND COUNSEL ............................................ i

SUBJECT INDEX ...................................................................................... iv

INDEX OF AUTHORITIES ......................................................................... vi

STATEMENT REGARDING ORAL ARGUMENT ........................................ 9

STATEMENT OF THE CASE ................................................................... 10

STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE ........... 10

STATEMENT OF FACTS ......................................................................... 10

QUESTIONS PRESENTED FOR REVIEW............................................... 12

FIRST QUESTION FOR REVIEW ............................................................ 12

       Does a warrantless, nonconsensual blood draw conducted
       pursuant to TEX. TRANSP. CODE § 724.012(b) violate the Fourth
       Amendment?

SECOND QUESTION FOR REVIEW ....................................................... 12

       Are Fourth Amendment warrant-preference exceptions the sole
       measure of Fourth Amendment reasonableness in warrantless
       scenarios?

THIRD QUESTION FOR REVIEW ............................................................ 12

       Do exclusionary rule principles mandate suppression of blood
       evidence seized via a warrantless, nonconsensual, valid-at-the-
       time mandatory blood draw?

ARGUMENT AND AUTHORITIES ............................................................ 13
                                                  iv
CONCLUSION AND PRAYER .................................................................. 26

CERTIFICATE OF COMPLIANCE ............................................................ 27

CERTIFICATE OF SERVICE .................................................................... 27

APPENDIX .................................................................................................A




                                                    v
                                 INDEX OF AUTHORITIES




CASES

Breithaupt v. Abram,
      352 U.S. 432 (1957) ........................................................................ 22

Cole v. State,
     454 S.W.3d 89
     (Tex. App.—Texarkana 2014, pet. granted) ..................................... 15

Davis v. United States,
     ___ U.S. ___, 131 S. Ct. 2419 (2011) ........................................ 23–24

Garcia v. State,
     829 S.W.2d 796 (Tex. Crim. App. 1992) .......................................... 25

Holidy v. State,
      No. 06-13-00261-CR, 2014 WL 1722171
      (Tex. App.—Texarkana Apr. 30, 2014, pet. granted ........................ 14

Hulit v. State,
       982 S.W.2d 431 (Tex. Crim. App. 1998) .................................... 21–22

Illinois v. Krull,
        480 U.S. 342 (1987) ........................................................................ 23

Maryland v. King,
     569 U.S. ___, 133 S. Ct. 1958 (2013) .............................................. 21

McGee v. State,
    105 S.W.3d 609 (Tex. Crim. App. 2003) .......................................... 22




                                                  vi
McGruder v. State,
    No. 10-13-00109-CR, ___ S.W.3d ___, 2014 WL 3973089
    (Tex. App.—Waco 2014, pet. granted) ............................................ 14

Michigan Dept. of State Police v. Sitz,
     496 U.S. 444 (1990) ........................................................................ 21

Miles v. State,
      241 S.W.3d 28 (Tex. Crim. App. 2007) ............................................ 16

Moore v. State,
     No. 11-13-00347-CR, 2015 WL 5192175
     (Tex. App.—Fort Worth Aug. 21, 2015)............................................ 11

Reeder v. State,
    428 S.W.3d (Tex. App.—Texarkana 2014, pet. granted) ................ 14

Segundo v. State,
    270 S.W.3d 79 (Tex. Crim. App. 2008),
    cert. denied, 558 U.S. 828 (2009) .............................................. 21–22

Skinner v. Railway Labor Executives’ Ass’n,
     489 U.S. 602 (1989) .................................................................. 18–21

Smith v. State,
     No. 13-11-00694-CR, ___ S.W.3d ___, 2014 WL 5901759
     (Tex. App.—Corpus Christi 2014, pet. granted) ............................... 14

State v. Daugherty,
      931 S.W.2d 268 (Tex. Crim. App. 1996) .......................................... 25

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) .......................................... 19


                                                vii
Vernonia School Dist. 47J v. Acton,
     515 U.S. 646 (1995) ........................................................................ 20

Weems v. State,
    434 S.W.3d 655
    (Tex. App.—San Antonio 2014, pet. granted) ........................... 14–15

STATUTES

TEX. CODE CRIM. PROC. art. 14.04.............................................................. 18

TEX. CODE CRIM. PROC. art. 18.16.............................................................. 16

TEX. CODE CRIM. PROC. art. 38.23........................................................ 24, 26

TEX. PENAL CODE § 1.07(a)(30).................................................................. 24

TEX. PENAL CODE § 49.04(a)................................................................ 11, 16

TEX. PENAL CODE § 49.09(b)(2) ........................................................... 11, 16

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

TEX. TRANSP. CODE § 724.012(b)(3)........................................................... 16

TEX. TRANSP. CODE § 524.012(b)(1) .......................................................... 19

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

RULES

TEX. R. APP. P. 66.3 .................................................................................. 15

TEX. R. APP. P. 9.4 .................................................................................... 28




                                                   viii
                          IN THE COURT
                  OF CRIMINAL APPEALS OF TEXAS


LAURA DENISE MOORE,                   §
    APPELLANT                         §
                                      §
V.                                    §             PD-1228-15
                                      §
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

     While the reasonableness of statutory mandatory blood draws merits

argument, this Court has already heard oral argument on the instant issues

in other cases currently before the Court. Therefore, the State does not

request oral argument in this case.



                                      9
                           STATEMENT OF THE CASE

       A jury convicted Appellant of felony driving while intoxicated. TEX.

PENAL CODE §§ 49.04(a), 49.09(b)(2).1                (CR1:6, 142,149-50; RR4:29;

RR6:18-19).       Subsequently, the trial court sentenced Appellant to ten

years’ incarceration, probated for five years; the judge also assessed a

$1500 fine. (CR1:149-50; RR7:137-41).



       STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE

       The Eastland Court of Appeals reversed the trial court in an

unpublished opinion authored by Chief Justice Willson. Moore v. State, No.

11-13-00347-CR, 2015 WL 5192175 (Tex. App.—Fort Worth Aug. 21,

2015). Rehearing was not sought. The State files this petition, due on

October 21, 2015, following one extension.


                              STATEMENT OF FACTS

       In this felony driving while intoxicated prosecution, officers seized

Appellant’s blood pursuant to the mandatory blood draw provision

contained in Texas’ implied-consent law. TEX. TRANSP. CODE §724.012(b).

   1
       Statutory references cited throughout refer to the current version unless noted.

                                            10
At the trial court level, the judge denied Appellant’s motion to suppress the

blood evidence. (CR1:138-40; RR3:13-14). On appeal, Appellant’s first

point of error relied on the McNeely decision. Missouri v. McNeely, 569

U.S. ___, 133 S. Ct. 1552 (2013). Appellant also raised two additional jury

instruction contentions; they remain unaddressed due to the appellate

disposition of the McNeely claim. Moore, 2014 WL 5192175, at *1.

      The Eastland Court of Appeals reversed on the blood draw issue; the

appellate court rejected the State’s various arguments regarding the

propriety of the trial judge’s suppression ruling. Id. at *1-5. The trial court

had denied suppression, entering express findings that:

      1) probable cause supported the DWI arrest;
      2) the officer possessed reliable information revealing
         Appellant’s two prior DWIs;
      3) Appellant refused to provide a breath specimen;
      4) Texas’ implied consent framework existed for decades and
         had been enacted due to public policy concerns;
      5) the instant officer relied on the blood draw statute instead of
         seeking a warrant; and
      6) under these circumstances, the compelled sample was
         constitutionally reasonable.

(RR2:24-26,36,43; RR3:8-14). In addition to the ruling on the merits of the

McNeely point, the interim appellate court rejected the State’s argument

regarding the inapplicability of the exclusionary rule in this case. Moore,

2014 WL 5192175, at *4-5.
                                      11
        QUESTIONS PRESENTED 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?


          SECOND QUESTION FOR REVIEW

 Are Fourth Amendment warrant-preference exceptions
the sole measure of Fourth Amendment reasonableness
              in warrantless scenarios?


            THIRD QUESTION FOR REVIEW

Do exclusionary rule principles mandate suppression of
blood evidence seized via a warrantless, nonconsensual,
        valid-at-the-time mandatory blood draw?




                          12
                    ARGUMENT AND AUTHORITIES

     This Court is in the midst of grappling with the issues presented

herein.   Whilst a November 2014 decision addressed the merits of the

Fourth Amendment issue in one of the several McNeely-related cases then

pending, what appeared decided remains in flux since the Court granted

rehearing last February. State v. Villarreal, PD-0306-14, ___ S.W.3d ___,

2014 WL 6734178 (Tex. Crim. App. 2014) (reh’g granted, re-submitted

Mar. 18, 2015).    Additionally, the appellate milieu includes six other

submitted McNeely-inspired cases. Weems v. State, 434 S.W.3d 655 (Tex.

App.—San Antonio 2014, pet. granted) (submitted on arguments Nov. 19,

2014, PD-0635-14); 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.

                                   13
14, 2015, PD-0622-14); Cole v. State, 454 S.W.3d 89 (Tex. App.—

Texarkana 2014, pet. granted Apr. 22, 2015) (submitted on arguments Sep.

16, 2015, PD-0077-15).

      The State’s instant petition focuses on two aspects of any McNeely-

related consequences: the validity of a statutorily-compelled draw and the

invalidity of the exclusionary rule’s application. Villarreal only resolved the

merits of the mandatory-draw issue, not addressing the applicability of the

exclusionary rule.    Villarreal, 2014 WL 6734178.         Nevertheless, the

exclusionary rule issue is already before this Court. See Cole, 454 S.W.3d

at 89 (fourth ground granted); see also Weems, 434 S.W.3d at 666

(applying exclusionary rule). In other words, this Court has already granted

review on both issues presented herein.

      Review should be granted in this case because it involves important

questions of law that are have not yet been finally addressed by this Court,

matters in conflict in the interim appellate courts, and a misapplication of a

Supreme Court decision that has been interpreted as undermining the

validity of the Texas implied-consent statute. TEX. R. APP. P. 66.3(a)-(d),(f).




                                      14
I.   Valid, compelled statutory blood draw

     The State’s appellate stance is in lockstep with that of prosecutors

from other counties across the State who have already had cases granted

for review 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, Weems, Reeder, Smith, McGruder, Holidy, and Cole.

Here, the officer reasonably relied on an existing, ubiquitous narrowly-

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

occurred because the officer possessed probable cause that Appellant’s

impaired conduct constituted felony DWI. TEX. PENAL CODE §§ 49.04(a),

49.09(b)(2); TEX. TRANSP. CODE § 724.012(b)(3).

     In addition, the State differs with Villarreal’s original-submission

decision and further asserts that several important arguments should be

considered on the merits.

     A.    Codification of Fourth Amendment principles

     Villarreal failed to consider that the implied-consent statute codified

Fourth Amendment principles.     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
                                    15
dissipation of alcohol included some exigency. McNeely, 133 S. Ct. at

1561, 1568.      This ever-present exigency must be considered when

assaying the reasonableness of statutory draws.

      Combine this 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


                                      16
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).

      Of course, it almost goes without saying that Texas’ implied-consent

legislation codified Fourth Amendment probable cause requirements. U.S.

CONST. amend. IV. Predicate elements of the implied consent statute

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

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

requirement—in      tandem   with   the    codified       gravity-of-the-crime   and

dissipation-of-alcohol   exigencies—creates           a     neutral,   non-arbitrary

framework authorizing a narrowly-defined seizure from an already-in-

custody arrestee.     These refinements in the implied-consent statute’s

structure embrace the essence of Fourth Amendment reasonableness.

      B.     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, the

Court did not consider that blood drawn pursuant to Chapter 724’s mandate

                                      17
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. 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 a non-dualistic analysis that

renders Texas’ compelled-draw framework reasonable.




                                     18
     C.     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. 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

                                       19
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 less-restrictive-alternatives logically apply

when a seizure’s validity rests solely on the temporal factors presenting an

exigency; less-drastic, post-hoc what-ifs do not apply, however, to

reasonableness calculations factoring in other warrantless exceptions.

Villarreal’s analysis mistakenly applied this eschewed construct.

II.   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).


                                     20
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.

     Again, the statute is reasonable.     Years ago, the Supreme Court

recognized that a framework requiring a driver’s consent was anything but

nonsensical.   The Breithaupt court pointed to then 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 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
                                     21
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.

III.   Exclusionary rule inapplicable and not invoked

       Statutory mandatory blood-draws are reasonable. But see Villarreal,

2014 WL 6734178 (opinion on original submission; under re-submission).

When the ink dries on Villarreal and future McNeely-related decisions and if

those cases are adverse to the State on the merits, the rules requiring

evidence exclusion should not apply to mandatory blood-draw scenarios

that occurred 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 with objectively reasonable reliance 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).

       Nor does the Texas exclusionary rule apply.       First, the officer’s

conduct at the time did not trigger exclusions under subsection (a).


                                    22
Second, the statutory good faith exception set out in article 38.23(b) is

inapplicable in this instance and has been previously misinterpreted. TEX.

CODE CRIM. APP. § 38.23(b).       Overall, invocation of exclusionary rule

principles should hinge on the intent of the statute as a whole, including its

history.

      As for subsection (a)’s language, a violation at the time of the seizure

is the exclusion trigger.   When Appellant’s blood was drawn, no one

credibly questioned the validity of the officer’s statutory authority. 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” applies to unlawfulness at the time of the seizure;

exclusion not triggered in an absence of police culpability). Simply put, the

instant circumstances do not invoke exclusion.

      Additionally, the State avers that Texas jurisprudence mistakenly

limits exclusionary rule application; legislators never intended that article

38.23(b)’s warrant provision be the sole exclusionary exception. Instead,

Texans were to be afforded the same exclusionary protection coextensive


                                     23
with federal law. See State v. Daugherty, 931 S.W.2d 268, 275 & n.1 (Tex.

Crim. App. 1996) (McCormick, P.J., concurring and dissenting, joined by

White and Keller, JJ.) (citations omitted); Garcia v. State, 829 S.W.2d 796,

803 n.1 (Tex. Crim. App. 1992) (Miller, J., concurring, joined by Campbell,

J.). Finally, rejecting exclusion where an officer acted with obeisance to

existing rules provides incentive for officers to follow the law, fulfilling the

overlying purpose of the exclusionary rule.

      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, ___ U.S.

___, 135 S. Ct. 530, 538–39 (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 that had been briefly considered in


                                      24
Michigan v. DeFillippo.    Heien, 135 S. Ct at 538–39; see generally

Michigan v. DeFillippo, 443 U.S. 31, 3–9 (1979) (suggesting that exclusion

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

unconstitutional”).

      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.

Heien, 135 S. Ct. at 538–39.         McNeely and subsequent caselaw

questioning implied-consent blood draws came later. Since, no violation

occurred at the time of the Appellant’s 2011 blood draw, Texas’

exclusionary provision does not apply.      TEX. CODE CRIM. PROC. art.

38.23(a). And since any legal error by the officer was reasonable, Fourth

Amendment cases do not mandate the remedy of exclusion. See Heien,

135 S. Ct. at 539.




                                    25
                      CONCLUSION AND PRAYER

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

should be reversed.    The cause should be remanded to the Court of

Appeals to address Appellant’s remaining jury-charge-related issues.

Ultimately, Appellant’s felony DWI with a child passenger conviction should

be upheld.

                                  Respectfully submitted,

                                  SHAREN WILSON
                                  Criminal District Attorney
                                  Tarrant County, Texas

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

                                  /s/ Tanya S. Dohoney
                                  TANYA S. DOHONEY
                                  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




                                    26
                                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 3900 words, excluding any parts exempted

by TEX. R. APP. P. 9.4(i)(1), as computed by Microsoft Word, the computer

software used to prepare the document.

                                                       /s/ Tanya S. Dohoney
                                                       TANYA S. DOHONEY


                                    CERTIFICATE OF SERVICE

         A true copy of the State's brief has been e-served to opposing

counsel, the Hon. Richard Henderson, 1999 Throckmorton Street, Suite

540, Fort worth, Texas 76102 at richard@rahenderson.com, on the 21st day

of October, 2014.

                                                       /s/ Tanya S. Dohoney
                                                       TANYA S. DOHONEY



U:\BRIEFS\PDRs & Merit Briefs\101215 moore mcneely pdr.docx




                                                         27
            APPENDIX



            Moore v. State,
No. 11-13-00347-CR, 2015 WL 5192175
 (Tex. App.—Eastland Aug. 21, 2015)




                A
Moore v. State, Not Reported in S.W.3d (2015)


                                                                 The grand jury returned an indictment alleging that Appellant
                                                                 operated a motor vehicle in a public place while intoxicated
                  2015 WL 5192175
                                                                 and that Appellant had twice before been convicted of the
    Only the Westlaw citation is currently available.
                                                                 offense of driving while intoxicated. A person commits the
          SEE TX R RAP RULE 47.2 FOR                             offense of driving while intoxicated, felony repetition, “if the
    DESIGNATION AND SIGNING OF OPINIONS.                         person is intoxicated while operating a motor vehicle in a
                                                                 public place” and it is shown that “the person has previously
    DO NOT PUBLISH. SEE TEX. R. APP. P. 47.2(B).                 been convicted ... two times of any other offense relating to
             Court of Appeals of Texas,                          the operating of a motor vehicle while intoxicated.” Penal §§
                     Eastland.                                   49.04(a), 49.09(b)(2).

             Laura Denise Moore, Appellant
                           v.
              The State of Texas, Appellee                                            II. Issues Presented

                                                                 Appellant argues, in her first issue, that the trial court erred
                 No. 11–13–00347–CR |
                                                                 when it denied her motion to suppress evidence from the
                Opinion filed August 21, 2015
                                                                 blood draw because her blood was drawn illegally. 3 In her
On Appeal from the 372nd District Court, Tarrant                 second and third issues, she argues that the trial court erred
County, Texas, Trial Court Cause No. 1311911D                    when it denied her requests for a jury instruction under
                                                                 Article 38.23 of the Texas Code of Criminal Procedure 4 on
Attorneys and Law Firms
                                                                 the validity of the traffic stop and the blood draw. In her
Charles M. Mallin, Tanya S. Dohoney, for State of Texas.         final issue, Appellant argues that the trial court erred when
                                                                 it denied her motion for mistrial after the State's witness
Richard A. Henderson, for Laura Denise Moore.                    improperly testified about an alleged extraneous offense.

Panel consists of: Wright, C.J., Willson, J., and Bailey, J.
                                                                 3      Appellant's case is a transfer case from the Second
                                                                        Court of Appeals in Fort Worth, and under Rule 41.3
                                                                        of the Texas Rules of Appellate Procedure, we apply its
               MEMORANDUM OPINION                                       precedent unless we determine that our sister court would
                                                                        decline to do so.
MIKE WILLSON, JUSTICE
                                                                 4      See TEX.CODE CRIM. PROC. ANN. art. 38.23(a)
 *1 The judgment of the trial court in this case reflects               (West 2005).
that the jury found Appellant, Laura Denise Moore, guilty
of “driving while intoxicated and felony repetition,” a third-
degree felony. 1 Appellant elected to have the trial court                           III. Evidence at Trial
assess punishment, and it assessed Appellant's punishment at
                                                                 Officer Mark Miller of the Bedford Police Department was
confinement for ten years and a $1,500 fine. 2 The trial court   on patrol at approximately 4:50 a.m. when he saw Appellant
suspended the confinement portion of the sentence and placed     come “very close to failing to yield” to other cars. Officer
Appellant on community supervision for a term of five years.     Miller then saw Appellant abruptly make an illegal left turn
We reverse and remand.                                           from the center lane. He turned on his emergency lights and
                                                                 stopped Appellant. Before he could speak to Appellant, she
1      TEX. PENAL CODE ANN. §§ 49.04, 49.09(b) (West             drove her vehicle out of the parking lot and onto the street.
       Supp.2014).                                               Officer Miller pursued her with both his emergency lights and
2                                                                siren activated, and Appellant abruptly pulled into the parking
       See PENAL § 12.34 (West 2011).
                                                                 lot of a shopping center.


                   I. The Charged Offense                        Appellant was seated in the driver's seat of her vehicle.
                                                                 Officer Miller approached Appellant. When he reached the


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                 1
Moore v. State, Not Reported in S.W.3d (2015)


window area where Appellant was seated, he smelled a                 record supports the findings. Guzman v. State, 955 S.W.2d
“moderate odor of alcoholic beverage” and also noticed               85, 87 (Tex.Crim.App.1997). Because the trial court is the
that Appellant's eyes were “extremely watery.” He asked              exclusive factfinder, the appellate court reviews evidence
Appellant where she was coming from and where she was                adduced at the suppression hearing in the light most favorable
going; Appellant answered “home” to each question. Officer           to the trial court's ruling. Carmouche, 10 S.W.3d at 327.
Miller described Appellant's speech as “very slurred.” Based         We also give deference to the trial court's rulings on mixed
on his observations, Officer Miller decided to conduct a             questions of law and fact when those rulings turn on an
standardized field sobriety test. The test is composed of three      evaluation of credibility and demeanor. Guzman, 955 S.W.2d
parts. Appellant failed two of the three parts, and based            at 87. Where such rulings do not turn on an evaluation of
on those results and Officer Miller's observations before he         credibility and demeanor, we review the trial court's actions
administered the sobriety test, he arrested her for driving          de novo. Id.
while intoxicated. Officer Miller transported Appellant to the
jail.
                                                                     B. Motion to Suppress
 *2 Officer Miller also learned from questioning Appellant           Appellant argued in her pretrial motion to suppress that the
and from a check of criminal history records, that she had           blood draw and the test results were inadmissible because
been convicted of driving while intoxicated on two previous          the blood specimen had been illegally drawn. The trial court
occasions. Officer Miller read Appellant the statutory               initially denied her motion. At trial, Appellant re-urged her
                                                                     objection, and the trial court carried the motion through trial
warnings on the DIC–24 form 5 and asked if she would
                                                                     and then denied it again. Appellant asserts that the taking of
provide him with a breath sample; she refused. Officer Miller
                                                                     her blood was in violation of her constitutional rights because
testified that, because Appellant had two prior convictions
                                                                     the blood draw was conducted without a warrant, consent, or
for driving while intoxicated, he was required 6 to obtain a         any other recognized exception to the warrant requirement.
sample of Appellant's blood or breath. Officer Miller secured
a blood draw kit, transported Appellant to a local hospital, and     The State asserts that the blood draw was constitutional
had a registered nurse draw a specimen of Appellant's blood.         because it was reasonable and that, regardless, the exceptions
Officer Miller noted that he could have obtained a warrant           of implied consent and search incident to arrest dispensed
but that he did not do so because he had arrested Appellant          with the warrant requirement. Further, the State asserts
for driving while intoxicated after she already had two prior        that, even if the search was not reasonable and no warrant
convictions for that same offense.                                   exception applies, the exclusionary rule does not operate to
                                                                     exclude the evidence. Absent a warrant, a search is presumed
5       A DIC–24 warning is a Department of Public Safety            unreasonable, and the State carries the burden to prove that an
        Form that provides the warnings outlined in Section          exception to the warrant requirement applies. See Gutierrez
        724.015 of the Texas Transportation Code. See TEX.           v. State, 221 S.W.3d 680, 685 (Tex.Crim.App.2007). The
        TRANSP. CODE ANN. § 724.015 (West 2011).                     State stipulated that Appellant's blood was drawn without
6                                                                    a warrant. Therefore, the State had the burden to prove an
        See TRANSP. § 724.012(b).
                                                                     exception to the warrant requirement.

                          IV. Analysis
                                                                     C. Implied Consent
We will only address Appellant's first issue. As we explain          The State first argues that Officer Miller had implied consent
below, the resolution of that issue obviates the need for us to      to draw Appellant's blood in accordance with Section 724.012
address her remaining issues.                                        of the Texas Transportation Code. See TRANSP. § 724.012.
                                                                     Section 724.012 provides that an officer “shall require the
                                                                     taking of a specimen of the person's breath or blood ...
A. Standard of Review                                                if the officer arrests the person for [DWI] and the person
We review a trial court's ruling on a motion to suppress             refuses the officer's request to submit to the taking of a
under a bifurcated standard of review. Carmouche v. State,           specimen voluntarily” and if one of three circumstances is
10 S.W.3d 323, 327 (Tex.Crim.App.2000). We give great                met. Id. § 724.012(b). The relevant circumstance is that,
deference to the trial court's findings of historical facts if the   “at the time of the arrest, the officer possesses or receives


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              2
Moore v. State, Not Reported in S.W.3d (2015)


reliable information from a credible source that the person”                Nov. 26, 2014). We also note that the Court of Criminal
has been convicted of driving while intoxicated on two prior                Appeals granted rehearing in State v. Villarreal on
occasions. Id. § 724.012(b)(3)(B). Section 724.011 provides                 February 25, 2015.
that, if such a person is arrested for driving while intoxicated,    Officer Miller testified that he relied on the implied consent
the person is deemed to have consented to the submission of          provision of the Texas Transportation Code as justification
a specimen of breath or blood for analysis to determine the          for the warrantless blood draw. He also agreed he could have
alcohol concentration in the person's body. Id. § 724.011.           obtained a warrant, but he chose to rely on the statute because
                                                                     Appellant's arrest for driving while intoxicated followed
 *3 Implied consent under the Texas Transportation Code              two prior convictions for the same offense. In that context,
is not a recognized exception to the warrant requirement,            and considering that mandatory blood draws are not per se
and the State cannot rely on it alone to justify a warrantless       reasonable, we cannot uphold the trial court's decision that the
blood draw. See Burks v. State, 454 S.W.3d 705, 708–09               warrantless blood draw was reasonable. Forsyth, 438 S.W.3d
(Tex.App.— Fort Worth 2015, pet. filed); Forsyth v. State,           at 224.
438 S.W.3d 216, 223 (Tex.App.—Eastland 2014, pet. ref'd);
Douds v. State, 434 S.W.3d 842, 861 (Tex.App.— Houston
[14th Dist.] 2014, pet. granted); Weems v. State, 434 S.W.3d         E. Search Incident to Arrest
655, 664 (Tex.App.—San Antonio 2014, pet. granted). We               The State's third argument is that the mandatory blood draw
note the reasoning and holdings in these cases, and we decline       constitutes a lawful search “incident to arrest.” The search-
to adopt the State's argument that it had implied consent to         incident-to-arrest exception to the warrant requirement
draw Appellant's blood without a warrant. We cannot uphold           applies only if the search is “substantially contemporaneous”
the trial court's ruling on such grounds.                            with the arrest and is also confined to the area within the
                                                                     immediate control of the suspect. State v. Granville, 423
                                                                     S.W.3d 399, 410 (Tex.Crim.App.2014) (quoting Vale v.
D. Fourth Amendment Reasonableness                                   Louisiana, 399 U.S. 30, 33 (1970)). The purpose of the search
The State next asserts that the mandatory blood draw was             is to protect the officer, prevent an escape, or protect the
a reasonable search under the Fourth Amendment and that              loss or destruction of evidence. Id. at 410. Therefore, when a
a warrant was not required. Under a Fourth Amendment                 search is not sufficiently close in time or place to the arrest,
balancing test, we balance the intrusion on the person's Fourth      then the search-incident-to-arrest exception is not normally
Amendment interests against the promotion of a legitimate            justified. Id. Furthermore, the exception is usually applied to
interest of the government. See Schenekl v. State, 30 S.W.3d         an “active attempt by a defendant or his associates to conceal
412, 413 (Tex.Crim.App.2000). The Supreme Court has                  or destroy evidence upon arrest.” Riley v. California, 134
described a blood draw as “a compelled physical intrusion            S.Ct. 2473, 2486 (2014).
beneath [the accused's] skin and into his veins to obtain
a sample of his blood for use as evidence in a criminal               *4 Appellant's blood was drawn at a hospital after Appellant
investigation.” Missouri v. McNeely, 133 S.Ct. 1552, 1558            had been arrested and transported to the jail and then to the
(2013). The Supreme Court continued, “Such an invasion of            hospital. Under these facts, we cannot say that officer safety
bodily integrity implicates an individual's ‘most personal and       or prevention of escape was implicated. As to the argument
deep-rooted expectations of privacy.’ ” Id. (quoting Winston         that the blood draw was necessary to protect the destruction of
v. Lee, 470 U.S. 753, 760 (1985)). 7 We have considered this         evidence, we cannot say that the natural dissipation of alcohol
issue before, and we have declined “to hold that mandatory           in the blood constitutes an “active attempt ... to conceal
blood draws under the Texas Transportation Code are per se           or destroy evidence.” Id. Based upon the rationale of the
reasonable.” Forsyth, 438 S.W.3d at 224.                             searchincident-to-arrest exception to the warrant requirement
                                                                     and upon the fact that the search was not close in time or place
7                                                                    to the arrest, we hold that such an exception is not applicable
        We note that the Court of Criminal Appeals recently
        addressed, under the Fourth Amendment to the United
                                                                     in this case to support the warrantless blood draw.
        States Constitution, the constitutionality of warrantless,
        nonconsensual blood draws under Section 724.012 of
                                                                     F. Exclusionary Rule
        the Texas Transportation Code. See State v. Villarreal,
        No. PD–0306–14, 2014 WL 6734178 (Tex.Crim.App.               The State's final argument is that, even if the blood draw
                                                                     was unlawful, the Texas exclusionary rule does not apply


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                   3
Moore v. State, Not Reported in S.W.3d (2015)


                                                                       made an illegal left turn from the center lane. Officer Miller
because Officer Miller followed an existing statute that
                                                                       stopped Appellant, but before he could speak to her, she drove
had not been held unconstitutional when he arranged for
                                                                       away. Officer Miller stopped her again when she pulled into a
the warrantless blood draw. We disagree with the State's
                                                                       parking lot at a shopping center. He spoke to her and noticed a
contention. Article 38.23 of the Texas Code of Criminal
                                                                       moderate odor of alcohol. Officer Miller said Appellant's eyes
Procedure, the Texas exclusionary rule, states, “No evidence
                                                                       were watery and her speech was very slurred. He conducted
obtained by an officer ... in violation of any provisions of the
                                                                       a field sobriety test in three parts. Appellant failed two parts,
Constitution or laws of [either Texas or the United States],
                                                                       and Officer Miller arrested her.
shall be admitted in evidence against the accused on the trial
of any criminal case.” CRIM. PROC. art. 38.23(a).
                                                                       At the jail, Appellant refused to take a breath test.
                                                                       Subsequently, her blood was taken by a nurse, who handed
The statute also provides an exception to the exclusionary
                                                                       the blood samples to Officer Miller. Officer Miller placed
rule, but “only when an officer relies in good faith upon a
                                                                       them in evidence envelopes and put them in a refrigerated
warrant issued by a neutral magistrate based on probable
                                                                       locker in a secure location at the jail. The samples were then
cause.” Weems, 434 S.W.3d at 666–67 (citing CRIM. PROC.
                                                                       taken to the Integrated Forensic Laboratories where forensic
art. 38.23(b)). There is no exception to the Texas exclusionary
                                                                       scientist Aubrey Norberg worked. Norberg tested the blood
rule for good faith reliance on a statute. Burks, 454 S.W.3d at
                                                                       samples from Appellant and testified that Appellant's blood
709; Forysth, 438 S.W.3d at 224; Douds, 434 S.W.3d at 861;
                                                                       alcohol concentration (BAC) was 0.16 grams of ethyl alcohol
Weems, 434 S.W.3d at 666–67. Officer Miller did not obtain
                                                                       per 100 milliliters of whole blood. The State emphasized this
a warrant, and no exception to the exclusionary rule applies.
                                                                       evidence during trial. After a review of the record, we cannot
And nothing in Section 724.012 of the Transportation Code
                                                                       say beyond a reasonable doubt that the blood sample evidence
instructs an officer to take a suspect's blood without a warrant
                                                                       did not contribute to Appellant's conviction. See Tex.R.App.
or provides a valid exception to the warrant requirement of
                                                                       P. 44.2(a); Weems, 434 S.W.3d at 667; see also Forsyth, 438
the Fourth Amendment. See TRANSP. § 724.012; see also
                                                                       S.W.3d at 225.
Forsyth, 438 S.W.3d at 224–25. Thus, the evidence should
have been excluded. We sustain Appellant's first issue.

                                                                                               V. Conclusion
G. Rule 44.2(a) Harm Analysis
Because the warrantless mandatory blood draw violated                   *5 We hold that the trial court erred when it denied
Appellant's rights under the Fourth Amendment, we must                 Appellant's motion to suppress the evidence from the blood
reverse the judgment unless we determine beyond a                      draw. In light of that holding, we need not address Appellant's
reasonable doubt that the error did not contribute to the              other issues.
conviction or punishment. TEX.R.APP. P. 44.2(a); Weems,
434 S.W.3d at 667. The jury was instructed as follows:

                                                                                          VI. This Court's Ruling
“Intoxicated” means:
                                                                       We reverse the judgment of the trial court and remand this
  (A) not having the normal use of one's mental or physical
                                                                       cause to the trial court for further proceedings consistent with
  faculties by reason of the introduction of alcohol into the
                                                                       this opinion.
  body; OR

  (B) having an alcohol concentration of 0.08 or more.
                                                                       All Citations
Officer Miller testified that he stopped Appellant because she
                                                                       Not Reported in S.W.3d, 2015 WL 5192175
came very close to failing to yield to other cars and then

End of Document                                                    © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                  4
