                                                                                  ACCEPTED
                                                                              13-14-00496-CR
                                                              THIRTEENTH COURT OF APPEALS
                                                                     CORPUS CHRISTI, TEXAS
                                                                         6/26/2015 3:38:38 PM
                                                                       CECILE FOY GSANGER
                                                                                       CLERK

                            No. 13-14-00496-CR

                   IN THE COURT OF APPEALS       FILED IN
                                         13th COURT OF APPEALS
           FOR THE THIRTEENTH DISTRICT  OF TEXAS
                                      CORPUS  CHRISTI/EDINBURG, TEXAS
                  AT CORPUS CHRISTI, TEXAS6/26/2015 3:38:38 PM
                                           CECILE FOY GSANGER
____________________________________________________________
                                                  Clerk

                           THE STATE OF TEXAS,
                               APPELLANT,


!       !   !      !   !     !    v.


                       BENJAMIN DELAROSA,
                             APPELLEE
    ___________________________________________________________

                ON APPEAL FROM COUNTY COURT AT LAW 2


                       NUECES COUNTY, TEXAS

____________________________________________________________


                            APPELLEE’S BRIEF


                                       John Gilmore
!       !   !      !   !     !    !    State Bar No. 07958500
!       !   !      !   !     !    !    622 S. Tancahua
!       !   !      !   !     !    !    Corpus Christi, Texas 78401
!       !   !      !   !     !    !    (361) 882-4378
!       !   !      !   !     !    !    (361) 882-3635 (fax)
!       !   !      !   !
!
                                          Table of Contents

Index of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Summary of the Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Issues Presented . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . 7

Analysis and Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
I. Response to Third Issue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
!    A.Burden of proof and standards for review . . . . . . . . . . . . . . . . . . 12
!    B.Affiant Made Material, False Statements Regarding Whether
!    !     Appellee Operated Vehicle . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

II. Response to First and Second Issues . . . . . . . . . . . . . . . . . . . . . . . . . 19
!     A.Summary of Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
!     B.Standard of review and applicable law . . . . . . . . . . . . . . . . . . . 21
!     C.Mandatory Blood Draw . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
!     !    1. Section 724.012 is not and exception to 4th amendment . 25
!     !    2. The State cannot meet 724.012 requirements . . . . . . . . . 27
!     !    3. Section 724.011 implied consent not presented to court . . 28

Prayer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Certificate of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33




                                                      2
                               Index of Authorities


Cases


Alford v. State, 400 S.W.3d 924 (Tex. Crim. App. 2013) . . . . . . . . . . 13, 28

Amador v. State, 221 S.W.3d 666 (Tex. Crim. App. 2007) . . . . . . . . 12, 22

Armendariz v. State, 123 S.W.3d 401 (Tex. Crim. App. 2003) . . . . . 13, 28

Franks v. Delaware, 438 U.S. 154 (1978) . . . . . . . . . . . . . . . . . . . . 10, 14

Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005) . . . . . . . . 21

Gonzalez v. State, 195 S.W.3d 114, 126 (Tex. Crim. App. 2006). . . . . 13

Hailey v. State, 87 S.W.3d 118, 121–22 (Tex. Crim. App. 2002) . . . . . . . 31

Jones v. State, 364 S.W.3d 854, 857 (Tex. Crim. App. 2012) . . . . . . . . . 14

McClintock v. State, 444 S.W.3d 15, 19 (Tex. Crim. App. 2014) . . . . . . . 14

Missouri v. McNeely, 133 S.Ct 1552 (2013) . . . . . . . . 10, 20, 22, 23, 26, 30

Ornelas v. United States, 517 U.S. 690, 699 (1996) . . . . . . . . . . . . . . . . 13

Schmerber v. California, 384 U.S. 757, 770 (1966) . . . . . . . . . . . . . . . .   22

State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006) . . . . . . . . 12, 21

State v. Laird, 38 S.W.3d 707 (Tex. App.–Austin 2000, pet. ref'd) . . . . . . 27

State v. Mercado, 972 S.W.2d 75, 78 (Tex. Crim. App. 1998) . . . . . . . . .. 31

State v. Mosely, 348 S.W.3d 435 (Tex. App.–Austin 2011, pet. ref'd) . . . 27



                                           3
State v. Rhinehart, 333 S.W.3d 154, 162 (Tex. Crim. App. 2011) . . . . . 31

State v. Rodriguez, 2015 Tex. App. LEXIS 6132 (Tex. App. Corpus Christi
June 18, 2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

State v. Villarreal, No. 13–13– 00253–CR, __ S.W.3d __, __, 2014 WL
1257150 (Tex. App.—Corpus Christi Jan. 23, 2014, pet. granted) . . . . . .25

State v. Villarreal, No. PD–0306–14, 2014 WL 6734178 (Tex. Crim. App.
Nov. 26, 2014) . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 31, 33

Swearingen v. State, 143 S.W.3d 808, 811 (Tex. Crim. App. 2004) . . . . . 13

United States v. Ventresca, 380 U.S. 102, 106 (1965) . . . . . . . . . . . . . . . 13

Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). . . . . . . . 12

Weems v. State, 434 S.W.3d 655 (Tex. App.—San Antonio 2014, pet.
granted) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 27

Young v. State, 283 S.W.3d 854, 873 (Tex. Crim. App. 2009) . . . .                                 13, 18




Statutes


TEX. TRANSP. CODE ANN. § 724.011 . . . . . . . . . . . . . . . . . . . . . . . 28, 29

TEX. TRANSP. CODE ANN. § 724.012 . . . . . . . . . . . 24, 25, 26, 27, 28, 29




                                                     4
                        Summary of the Argument

!    The State obtained a blood draw warrant in which the affiant made

untrue statements, particularly with regard to the basis of his knowledge

that Appellee operated his vehicle. The trial court properly excised those

statements and properly determined there is no probable cause supporting

the search warrant.

!    A person has a unique expectation of privacy in his own person.

Puncturing the skin to extract a blood sample is a search and seizure within

Fourth Amendment protections. Such a procedure is highly invasive and

intrusive and must be supported by sufficient grounds to pass constitutional

muster. A person’s blood contains a panoply of personal information

concerning his genetic identity, parentage, and medical history, so the

seizure greatly impacts a person’s privacy interest. That the state might

initially only use the blood to determine alcohol concentration does not

make the process less intrusive, nor does it negate the prospect of later

investigation of the information contained in the blood. The state is required

to preserve the biological sample for forty years, so this is anything but a

temporary invasion of the privacy.




                                      5
!    Statutes may not circumvent the Fourth Amendment in scope, nor

may law enforcement violate the Fourth Amendment in the application of

that statute. Warrantless extraction of blood samples must be reasonable;

therefore, they must meet Fourth Amendment standards of probable cause

and exigent circumstances, or such other exception to the warrant

requirement, but also must be conducted in a reasonable fashion. It was

unreasonable to forego the warrant process when the suspect was in

custody and would remain in custody for a period well beyond that required

to secure a warrant.

!    The statute requiring the taking of breath or blood samples must be

strictly complied with. That statute in Texas does not mandate the taking of

blood. A person may opt to provide a sample of breath, and the statute

requires only that a breath sample or a blood sample be taken. There was

no indication that Appellee was given the option of providing a breath

sample or refused to do the same.

!    None of the exceptions argued by the State justify the taking of

Appellee’s blood in this case. There was no showing of express consent.

The implied consent statute was not strictly followed, and its application




                                     6
under the present circumstances was unreasonable under the Fourth

Amendment.

!    The State failed to prove the blood was taken in a reasonable fashion

consistent with any recognized exception to the warrant clause.

                             Issues Presented

1.!  Whether the trial court erred by denying State’s Motion to Reconsider
based on its determination that no exception existed to justify a warrantless
blood draw under the provisions of the Transportation Code.

2.     Whether the trial court erred by granting defendant’s motion to
suppress because exigent circumstances existed to justify the warrantless
blood draw.

3.!   Whether the trial court erred by suppressing the blood search warrant
under Franks v. Delaware based on its determination that Officer Gary
Williams made false statements on the affidavit for search warrant, that the
false statements should be excised from the affidavit, and that the search
warrant was not sufficient to meet probable cause without the statements.

                            Statement of Facts

!    Appellee wishes to add the following:

!    On July 28, 2013, a search warrant was obtained to authorize a

search of Defendant’s person to obtain a sample of his blood. (CR 10).

The search warrant was based on the affidavit of Gary Williams, an officer

with the Corpus Christi Police Department. (CR 12, attached as Exh. A to

Appellee’s motion for Franks hearing).


                                      7
!    On June 24, 2014, Appellee filed a “Motion for Hearing Pursuant to

Franks vs. Delaware” specifically alleging that the warrant for a blood draw

was obtained based on false statements by Gary Williams.           (CR 10).

Specifically, Appellee claimed “the allegation that Lt. Broyles ‘observed the

suspect operating a motor vehicle . . . .immediately before my contact with

the suspect’ is false.” (CR 10). The affidavit of Gary WiIliams specifically

states, “A witness, CCPD Lt. Broyles [in handwriting] told me that the

witness observed the suspect operating a motor vehicle in a public place in

Nueces County, Texas immediately before my contact with the

suspect.” (CR. 12, G. Williams affidavit attached to search warrant).

!    At the hearing on Appellee’s motion, Lt. Broyles testified he was two

miles away from the accident when it occurred. (RRv2 at 13). He did not

see either driver operating their vehicles, including Appellee. (Id. 13-14).

He also testified that good samaritans on the scene before he arrived had

not seen the crash either. (Id.). He could not testify as to who was driving.

(RRv2 15).

!    Officer Williams also testified he had not personally observed

Appellee operating a vehicle that night. (RRv2 at 34). He also testified that

the good samaritans at the scene said they did not see the crash or him


                                      8
behind the wheel. (RRv2 at 36). He was also aware that Officer Broyles

did not see the accident. (Id.). Nevertheless, Officer Williams testified that

the statement in his affidavit, “a witness, Corpus Christi Police Department,

Lieutenant Broyles, told me that the witness observed the suspect

operating a vehicle in a public place” is not a false statement even though

he was aware that Broyles did not observe Appellee operating a motor

vehicle. (RRv2 at 37).

!     Officer Williams also denied that section 8 of the search warrant was

false, because that is how he was told to fill out the form. (Id.). Section 8

of his affidavit stated “Subject was driving a motor vehicle . . ..: (CR 13).

Nevertheless, Officer Williams admitted he did not see Appellee driving the

vehicle. He was also aware that no witness saw him driving the vehicle.

(Id. at 38).

!     Officer Williams admitted that Appellee did not consent to the blood

draw. (RRv2 at 38). He acknowledged that Appellee was unconscious and

was not able to refuse or say yes. (Id.).

!     The trial court found, “There is no evidence before the court that

[Appellee] was the operator.”     (RRv3 at 7).    The trial court also found

“CCPD Officer Gary Williams made false statements in the search warrant


                                      9
affidavit and that such false statements should be excised from the

affidavit.”    (CR 20, Order dated August 1, 2014, the day after the

evidentiary hearing on the Franks Motion).1 This means that the trial court

found both Section 8 and Section 5 to be false statements, especially as to

whether Appellee was operating a motor vehicle.               The trial court further

found that “once such false statements are removed from the affidavit, the

affidavit does not contain sufficient probable cause for the issuance of the

warrant to seize Defendant’s blood.” (Id.).

!     The State filed a “Motion to Reconsider” asking for a “full hearing” on

“the applicability of a mandatory warrantless blood draw in this case.” (CR

16-17).       Appellee replied that mandatory blood draw provisions do not

excuse the necessity of obtaining a warrant without exigent circumstances

and the natural dissipation of alcohol in a person’s blood by itself is

insufficient to constitute exigent circumstances. (CR 21-22, citing Missouri

v. McNeely, 133 S.Ct 1552 (2013)). Appellee further argued that the fact


1 The State claims, without a cite to the record, that the trial court “ruled that the
statement made by Officer Williams in Section 5 of his affidavit for search warrant was
false and should be excised under Franks v. Delaware.” (State’s Brief at 10). However,
no such limit to her ruling was giving in her order. (CR 20). The finding is that “CCPD
Officer Gary Williams made false statements in the search warrant affidavit and that
such false statements should be excised from the affidavit.” (CR 20). The judge simply
believed there was no basis for his conclusion that Appellee operated the motor vehicle.
(RRv3 at 7).

                                           10
that law enforcement officers obtained a warrant invalidates the argument

that there was an exigency preventing them from obtaining a warrant. (Id.).

!     After a hearing on August 13, 2014 and considering additional

evidence presented by the State, the trial court maintained its ruling of

August 1, 2014 and granted Appellee’s motion to suppress.          (CR 23,

August 19, 2014 Order of trial court). The court agreed in its written order

that because Officer Williams had obtained a warrant in this case, there

could be no exigency. (Id.). The trial court also stated on the record, “The

operator, number one, one(b)(1) is what I’m having a problem with.” (RRv3

at 11).

                      ANALYSIS AND ARGUMENT

I.   RESPONSE TO THIRD ISSUE

!     In its third issue the State argues that the trial court erred by

suppressing the blood draw search warrant. (State’s Brief pp. 25-28). It

challenges the trial court’s finding that “CCPD Officer Gary Williams made

false statements in the search warrant affidavit and that such false

statements should be excised from the affidavit.”     (CR 20, Order dated

August 1, 2014, the day after the evidentiary hearing on the Franks

Motion). The State further argues that what the trial court labeled “false


                                     11
statements” is simply a single “misstatement” by Officer Williams as to “a

mistake of permitted procedure” and is not a material misstatement.

(State’s Brief at 15, 27-28). However, this ignores the findings and

statements by the trial court, as discussed above.

!     A.!   Burden of Proof and Standard of Review

!     The court is to apply a bifurcated standard of review to the trial court's

ruling on a motion to suppress evidence. Valtierra v. State, 310 S.W.3d 442,

447 (Tex. Crim. App. 2010). The reviewing court affords almost total

deference to the trial court's determination of historical facts and to mixed

questions of law and fact that turn on an evaluation of credibility and

demeanor. Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007)

(citing Guzman, 995 S.W.2d at 89). The reviewing court reviews de novo

mixed questions of law and fact that do not depend upon credibility and

demeanor. Id.

!     When a trial court makes explicit fact findings, the appellate court

determines whether the evidence (viewed in the light most favorable to the

trial court’s ruling) supports these fact findings.” State v. Kelly, 204 S.W.3d

808, 818 (Tex. Crim. App. 2006). The reviewing court will uphold the trial

court’s ruling under any applicable theory of law supported by the facts of


                                      12
the case whether we infer the fact findings or consider express findings.

Alford v. State, 400 S.W.3d 924, 929 (Tex. Crim. App. 2013). Similarly,

regardless of whether the trial court has made express conclusions of law,

the reviewing court upholds the trial court’s ruling under any theory

supported by the facts because an appellate court reviews conclusions of

law de novo.” Id. Under de novo review, the reviewing court is not required

to defer to a trial court’s particular theory. Id. This “rule holds true even if

the trial court gave the wrong reason for its ruling.” Armendariz v. State,

123 S.W.3d 401, 403 (Tex. Crim. App. 2003).

!     The trial court is the sole trier of fact, the judge of witness credibility,

and the weight to be given to witness testimony. Id. A trial court's ruling on a

motion to suppress will be affirmed if it is reasonably supported by the

record and is correct under any theory of law applicable to the case. Young

v. State, 283 S.W.3d 854, 873 (Tex. Crim. App. 2009); Gonzalez v. State,

195 S.W.3d 114, 126 (Tex. Crim. App. 2006).

!     Ordinarily, the preference for searches based upon warrants requires

reviewing courts to give "great deference" to a magistrate's determination

of probable cause. Ornelas v. United States, 517 U.S. 690, 699 (1996); see

also Swearingen v. State, 143 S.W.3d 808, 811 (Tex. Crim. App. 2004). "[I]n


                                       13
a doubtful or marginal case a search under a warrant may be sustainable

where without one it would fall." United States v. Ventresca, 380 U.S. 102,

106 (1965); see also Jones v. State, 364 S.W.3d 854, 857 (Tex. Crim. App.

2012) ("'[T]he magistrate's decision should carry the day in doubtful or

marginal cases, even if the reviewing court might reach a different result

upon de novo review.'").

!    However, that deference to the magistrate is not called for when the

question becomes whether an affidavit, stricken of its tainted information,

meets the standard of probable cause. McClintock v. State, 444 S.W.3d 15,

19 (Tex. Crim. App. 2014). This is, in part, because a "magistrate's

judgment would have been based on facts that are no longer on the table,"

and there is "no way of telling the extent to which the excised portion

influenced the magistrate judge's determination." Id.

!    When a court reassesses a search warrant affidavit with the

allegations found to be false in the context of a hearing pursuant to Franks

v. Delaware, 438 U.S. 154 (1978) excised, a doubtful or marginal case for

probable cause should be resolved in the defendant's favor. Id. at 20, n.17.

(citing Wayne R. LaFave, 2 Search and Seizure: A Treatise on the Fourth

Amendment § 4.4(c), at 696 & n.73 (5th ed. 2012)).


                                     14
!     B.!   Affiant Made Material, False Statements Regarding
!     !     Whether Appellee Operated Vehicle


!     Without the false, excised statements regarding the basis for

Williams’ belief Appellee operated a vehicle, there is no probable cause in

the affidavit for the search warrant that Appellee operated a vehicle.

!     Officer Williams swore in his affidavit supporting the search warrant in

several places that Appellee operated a motor vehicle even though he

knew no one observed Appellee operating the vehicle. For example, he

stated, “The suspect was operating a motor vehicle in a public place in

Nueces County, Texas on the above date based on the following facts: A

witness, (name & address & phone no.) CCPD LT Broyles [Italicized

because hand written into form] told me that the witness observed the

suspect operating the motor vehicle in a public place in Nueces County,

Texas immediately before my contact with the suspect.”               (CR 12)

(emphasis added).




                                      15
16
The other options on the form are he observed the suspect doing so or that

the suspect admitted it. (Id.). He checked neither and instead swore under

oath that Broyles told him, which was false. (Id.).

!     Williams confessed he knew Broyles did not observe Appellee

operating a vehicle and that the good samaritans never observed Appellee

operating a vehicle. (RRv2 at 36). He also knew medics did not observe

Appellee operating the vehicle.     Accordingly, the testimony supports the

trial court’s finding that Williams made materially false statements in his

affidavit with regard to the basis of his conclusion Appellee operated a

vehicle.

!     Moreover, Officer Williams did not state additional facts in his affidavit

to support his belief that Appellee operated a vehicle. (Id.). For example,

in paragraph 8, he could have stated additional facts as to why he believed

Appellee operated a vehicle. Instead of facts, he just stated his conclusion.

Specifically, he wrote the “additional facts leading me to believe that the

suspect was intoxicated while operating a motor vehicle” as simply his

conclusion that suspect operated a vehicle at a high speed.       (CR 13). He

also states medics called him driver, but he knew that no other witnesses

observed him driving.     In sum, Williams had an opportunity to add his


                                      17
observations that lead him to the conclusion that Appellee operated a

vehicle, but he chose not to do so and instead asked the magistrate to rely

on his false statement regarding the basis for his belief Appellee operated a

vehicle.

!     The truth is that Neither Officer Williams nor Broyles could testify as

to who was driving or that Appellee operated a motor vehicle. Both officers

confessed that neither saw the accident. In fact, Broyles testified he was

two miles away from the accident when it occurred. (RRv2 at 13). Both

officers also confessed that the good samaritans on the scene before the

officers arrived had not seen the crash either. (Id.).

!     The testimony by the officers supports the trial court’s ruling excising

the portions of Williams’ affidavit which claim that Appellee operated the

vehicle. A trial court's ruling on a motion to suppress will be affirmed if it is

reasonably supported by the record and is correct under any theory of law

applicable to the case. Young v. State, 283 S.W.3d 854, 873 (Tex. Crim.

App. 2009)

!     Finally, Section 5 of the form is important because it provides the

basis for the officer’s belief as to whether Appellee operated a vehicle. The

State includes that section on the standard form because it is important


                                       18
information for the magistrate to consider in deciding whether to issue a

search warrant.    If it were not, the State could simply instruct officers to

leave that section blank.       However, if that section were blank, it is

reasonable to assume a magistrate would not issue a search warrant

because a reasonable magistrate would like the basis for the officer’s belief

a person was operating a vehicle. Moreover, if Section 8 does not provide

additional facts and simply conclusions, as is the case here, that adds to

the importance of Section 5 on the affidavit form. In conclusion, section 5

is vital to the affidavit, as it asks the affiant to provide a basis for his/her

belief that the suspect operated a vehicle.      Here, the affiant provided a

false statement. Accordingly, the trial court’s ruling should be upheld, as it

is supported by the record.

II.!   RESPONSE TO FIRST AND SECOND ISSUES

!      A.!   Summary of Argument

!      In its first and second issues the State argues that, even though there

was a warrant obtained in this case, no warrant was required under the

Texas Transportation Code. The State argues that either an emergency or

implicit consent could have existed here and justified a warrantless blood

draw, even though the State obtained a warrant.


                                       19
!     The problem with this type of analysis is that the State is trying to go

back and create an emergency in a situation where the officer did not

initially have one.   Here, the officer had time to fill out his form affidavit

(albeit falsely) and submit it with a warrant to a magistrate at the City

Detention Center. Accordingly, the State is not going to have anything to

support an emergency.

!     Nevertheless, it tries. The State argues that the exigent circumstance

was that Appellee “was not conscious to consent to blood draw” once law

enforcement made the decision to obtain blood (State’s Brief at 24) (without

record cite). Also, Appellee was unlikely to awaken in the future to consent

or refuse consent. (Id. ) (without cite to record).

!     Appellee objects to this argument as inadequately briefed. See TEX.

R. APP. P. 38.1(i). The State does not cite a case with these specific

circumstances nor does it cite references to these facts in the record.

(State’s Brief at 24). Instead it cites to general principles in McNeely and

Schmerber without a legal analysis. (Id. at 23-24).

!     The trial court had issues with the fact that no exigent circumstances

existed, as the State had time to obtain a warrant.         (CR 23) (Second

Order). The problem with the State’s argument is that a unconscious man


                                       20
in the hospital gives the State sufficient time to obtain a warrant, as his

condition is not likely to immediately change.        In fact, the State had

sufficient time to obtain a warrant. Thus, it is not an emergency.

!     The trial court here also had issues with applying mandatory blood

draw provision due to the lack of evidence that Appellee operated a vehicle.

(RRv3 at 7, 11).

!     The State did not argue implied consent in the trial court. (See RRv2

and RRv3).    It was also not presented in its motion for reconsideration.

(CR 16-17).        Accordingly, the trial court did not discuss the officer’s

testimony that Appellee did not consent to the blood draw. (RRv2 at 38).

Implied consent laws are also subject to fourth amendment restrictions, as

discussed in more detail below.

!     B.!   Standard of Review and Applicable Law

!     To suppress evidence on an alleged Fourth Amendment violation, the

defendant bears the initial burden of producing evidence that rebuts the

presumption of proper police conduct. Ford v. State, 158 S.W.3d 488, 492

(Tex. Crim. App. 2005). A defendant satisfies this burden by establishing

that a search or seizure occurred without a warrant.” Id.; see also Kelly,

204 S.W.3d at 819 n.22 (noting that in the context of a case alleging


                                       21
assault in a blood draw that “[i]t is important to note that appellee had the

initial burden to produce evidence to support a finding that she did not

consent to . . . [the] blood draw”). Once a defendant establishes there was

no warrant, the burden shifts to the State to prove the warrantless search

was reasonable under the totality of the circumstances. Amador, 221 S.W.

3d at 672–73. The State satisfies this burden if it proves an exception to the

warrant requirement. See Gutierrez, 221 S.W.3d at 685.

!    “Whether a warrantless blood test of a drunk-driving suspect is

reasonable must be determined case by case based on the totality of the

circumstances.” McNeely, 133 S.Ct. at 1563. In Schmerber, the United

States Supreme Court held that the evidence showed that the police officer

reasonably believed that an emergency existed because the delay in

seeking or obtaining a warrant would result in the destruction of evidence.

Schmerber v. California, 384 U.S. 757, 770 (1966). The court relied on

evidence in the record that the alcohol in the blood dissipates and stated,

     !     Particularly in a case such as this, where time had to be
     taken to bring the accused to a hospital and to investigate the
     scene of the accident, there was no time to seek out a
     magistrate and secure a warrant. Given these special facts, we
     conclude that the attempt to secure evidence of blood-alcohol
     content in this case was an appropriate incident to petitioner’s
     arrest.


                                      22
Id. at 770–71. In McNeely, the United States Supreme Court stated that in

Schmerber it had determined that the warrantless blood test was

reasonable after considering all of the facts and particular circumstances in

that case and its analysis “fits comfortably within [its] case law applying the

exigent circumstances exception” to the warrant requirement. McNeely,

133 S.Ct. at 1560.

!     In McNeely, the State argued that “whenever an officer has probable

cause” that an individual is driving under the influence of alcohol there are

exigent circumstances because blood alcohol evidence is inherently

evanescent. Id. And, “[a]s a result, . . . so long as the officer has probable

cause and the blood test is conducted in a reasonable manner, it is

categorically reasonable for law enforcement to obtain the blood sample

without a warrant.” Id. The McNeely court rejected the State’s argument

and held that “[i]n those drunk-driving investigations where police officers

can reasonably obtain a warrant before a blood sample can be drawn

without significantly undermining the efficacy of the search, the Fourth

Amendment mandates that they do so.” Id. at 1561. The McNeely court

explained

      !     We do not doubt that some circumstances will make
      obtaining a warrant impractical such that the dissipation of

                                      23
      alcohol from the bloodstream will support an exigency justifying
      a properly conducted warrantless blood test. That, however, is a
      reason to decide each case on its facts, as we did in
      Schmerber, not to accept the ‘considerable overgeneralization’
      that a per se rule would reflect.
Id.

!     Section 724.012 of the Texas Transportation Code states in pertinent

part that “[a] peace officer shall require the taking of a specimen of the

person’s breath or blood under any of the [listed] circumstances if the

officer arrests the person for an offense under Chapter 49, Penal Code,

involving the operation of a motor vehicle or a watercraft and the person

refuses the officer’s request to submit to the taking of a specimen

voluntarily.” TEX. TRANSP. CODE ANN. § 724.012 (emphasis added). The

applicable subsection states that an officer must take the person’s blood if

“the person was the operator of a motor vehicle or a watercraft involved in

an accident that the officer reasonably believes occurred as a result of the

offense and, at the time of the arrest, the officer reasonably believes that as

a direct result of the accident” either “any individual has died or will die,” “an

individual other than the person has suffered serious bodily injury” or “an

individual other than the person has suffered bodily injury and been

transported to a hospital or other medical facility for medical treatment.” Id.

§ 724.012(b)(1).

                                        24
!     C.!   Mandatory Draw Under Transportation Code

!     !     1.!   Section 724.012 is Not an Exception to 4th
!     !     !     Amendment

!     The State contends that the Transportation Code provides exceptions

to the constitutional warrant requirement. Specifically, the State argues that

“a blood draw could have been obtained by relying upon the mandatory

blood draw provision in question [Section 724.012], along with the absence

of withdrawal of consent.” (State’s Brief at 20).

!     This Honorable Court has already determined that the Legislature did

not mean to circumvent the Fourth Amendment’s requirement that the

police officer acquire a warrant prior to acquiring a blood sample after the

suspect refuses to provide a specimen regarding another portion of the

mandatory blood draw statute. See State v. Villarreal, No. 13–13– 00253–

CR, __ S.W.3d __, __, 2014 WL 1257150, at *11 (Tex. App.—Corpus

Christi Jan. 23, 2014, pet. granted). The court of criminal appeals affirmed

the decision stating, “the provisions in the Transportation Code do not,

taken by themselves, form a constitutionally valid alternative to the Fourth

Amendment warrant requirement” and “a nonconsensual search of a DWI

suspect’s blood conducted pursuant to the mandatory-blood-draw and

implied-consent provisions in the Transportation Code, when undertaken in

                                       25
the absence of a warrant or any applicable exception to the warrant

requirement, violates the Fourth Amendment.” State v. Villarreal, No. PD–

0306–14, 2014 WL 6734178, at **20–21 (Tex. Crim. App. Nov. 26, 2014,

pet. granted).

!     This Honorable Court also concluded that section 724.012 of the

Transportation Code does not by itself form a constitutionally recognized

exception to the warrant requirement. State v. Rodriguez, 2015 Tex. App.

LEXIS 6132 (Tex. App. Corpus Christi June 18, 2015). Instead, under

McNeely, each case must be evaluated on a case-by-case basis. See

McNeely, 133 S.Ct. at 1560.

!     Here, the officer actually obtained a warrant based. In Rodriguez the

officer did not attempt to get a warrant because he was relying exclusively

on the mandatory blood draw provision. The United States Supreme Court

stated that if an officer can take steps to secure a warrant while the suspect

is being transported to a hospital by another officer, there would be no

plausible justification for an exception to the warrant requirement. McNeely,

133 S.Ct. at 1561.

!     In Weems v. State, the reviewing court found no exigency despite

evidence that there had been an accident, the passenger had been injured,


                                      26
and the defendant had been transported to the hospital. 434 S.W.3d 655,

666 (Tex. App.—San Antonio 2014, pet. granted). In Weems, just as here,

the officer had time to get a warrant. Accordingly, the trial court did not

abuse its discretion by concluding that the State failed to establish that an

exigency existed.

!     !     2.!     The State Cannot Meet 724.012 Requirements

!     Finally, the State did not comply with the Transportation Code

requirements, if the reviewing court defers to the trial court’s finding of fact

that Appellee did not operate the vehicle. In the absence of a valid search

warrant or actual consent, full compliance with Chapter 724 is required,

even though the sample is taken from the arrested suspect with probable

cause under exigent circumstances. State v. Mosely, 348 S.W.3d 435, 442

(Tex. App.–Austin 2011, pet. ref'd) (stating that warrantless blood draw

under Chapter 724 is legal only if the arrest is supported by probable

cause); State v. Laird, 38 S.W.3d 707, 713-14 (Tex. App.–Austin 2000, pet.

ref'd) ("Texas courts require full compliance with the provisions of Chapter

724 when a blood sample is taken from an arrested suspect even though

exigent circumstances exist."). Here, the State was required to prove

Appellee operated the vehicle. TEX. TRANSP. CODE ANN. § 724.012


                                       27
!     In addition, the fact that Officer Williams did not acquire appellee’s

refusal prior to taking the blood draw is undisputed, and the only evidence

presented by the State establishes that there was no refusal to provide a

specimen. Section 724.012 requires that “the person refuses the officer’s

request to submit to the taking of a specimen voluntarily” prior to the

mandatory blood draw. TEX. TRANSP. CODE ANN. § 724.012 (emphasis

added). Therefore, as a matter of law, Officer Williams did not properly

acquire appellee’s blood sample pursuant to section 724.012. Accordingly,

the trial court did not abuse its discretion by granting appellee’s motion to

suppress. See Alford, 400 S.W.3d at 929 (“Even if the trial court had limited

its conclusion of law to a particular legal theory, an appellate court would

not be required to defer to that theory under its de novo review.”);

Armendariz, 123 S.W.3d 401 at 403 (holding that this “rule holds true even

if the trial court gave the wrong reason for its ruling.”).

!     !     3.! Section 724.011’s Implied Consent Not Presented at
!     !     !     Trial
!     Citing section 724.011 of the Texas Transportation Code, the State

argues that pursuant to “the implied consent statute,” a person is deemed

to have consented to the taking of one or more specimens of the person’s

blood for analysis to determine its alcohol content if that person is


                                        28
intoxicated and “is arrested for an offense arising out of acts alleged to

have been committed while the person was operating a motor vehicle in a

public place.” See TEX. TRANSP. CODE ANN. § 724.011 (West, Westlaw

through 2013 3d C.S.). The State asserts that anyone who operates a

motor vehicle has impliedly consented to a blood draw.

!    The State did not argue implied consent in the trial court. (See RRv2

and RRv3). Specifically, the prosecutor argued as follows:

     But the reason I mention that Judge is because in this particular
     case, what we're arguing is that there is an exception, a
     mandatory blood draw exception where a warrant is not required.
     And that exception goes beyond the four corners of the blood
     warrant in this case. In fact, it basically treats it as if there was no
     warrant in this case. And we would [p 11] argue that under
     724.012, even if there was no warrant in this case, there was --
     basically the ability to get a mandatory blood draw in this case.
     There is circumstantial evidence of operation within Officer
     Williams' report. Additionally, as he testified last week, it was Mr.
     DeLaRosa's vehicle. He was by the vehicle. He had injuries that
     required hospitalization. He was disoriented. Appeared
     intoxicated. Basically there was a variety of circumstantial
     evidence that the officer had which rises to the level of probable
     cause to believe that Mr. DeLaRosa had been driving. Basically,
     a reasonable grounds as 724 requires that
     Mr. DeLaRosa was driving the vehicle.
     Based on that, in Section 724.012(b)(c), I
     believe it is, (b)(1)(c), Judge, because Mr. Sutherland, as
     supported by --
     THE COURT: Yeah, I don't have any problem with that. The
     operator, number one, on (b)(1) is what
     I'm having a problem with.
     MR. BROWN: Okay. So Judge, I basically

                                       29
      would argue that the officer, based on his investigation of the
      scene, had enough reasonable grounds to believe that Mr.
      DeLaRosa was the driver of the vehicle and meets all the other
      elements of that. I know in his response, Mr. Gilmore essentially
      argued the case law on [p 12] the McNeely Supreme Court case.
      And understandably, I can't cite any Texas case that would
      support the constitutionality of this case because all the case law
      post McNeely has generally been in support of his contention. All
      I would argue, Judge, is that it's important to get this on the
      record because the Court of Criminal Appeals has not decided
      this yet. So if we have this on the record, if obviously they say
      mandatory blood draws do fall into one of the exceptions to the
      search warrant, we've got this evidence for their consideration. If
      they rule that it's not an exception, obviously this becomes a
      moot point. I just simply wanted to add this additional information
      to the record so that it could be considered in any future
      proceedings.

(RRv3 pp.11-13).      The argument regarding implied consent was not

presented in its motion for reconsideration. (CR 16-17). Accordingly, the

trial court did not discuss the officer’s testimony that Appellee did not

consent to the blood draw. (RRv2 at 38).

!     Thus, to the extent that the State now makes this argument, Appellee

objects that it does not comport with its argument to the trial court. See Bell

v. State, 938 S.W.2d 35, 54 (Tex. Crim. App. 1996) (explaining that the

grounds raised on appeal must comport with the objections made before

the trial court). Moreover, a reviewing court cannot reverse the trial court’s

judgment on grounds not presented to it. See State v. Rhinehart, 333 S.W.


                                      30
3d 154, 162 (Tex. Crim. App. 2011) (stating that “ordinary rules of

procedural default” apply to “losing party” in trial court); Hailey v. State, 87

S.W.3d 118, 121–22 (Tex. Crim. App. 2002) (“It is well-settled that . . . it

violates ordinary notions of procedural default for a Court of Appeals to

reverse a trial court’s decision on a legal theory not presented to the trial

court by the complaining party.”) (quotations omitted); State v. Mercado,

972 S.W.2d 75, 78 (Tex. Crim. App. 1998) (en banc) (“[I]n cases in which

the State is the party appealing, the basic principle of appellate

jurisprudence that points not argued at trial are deemed to be waived

applies equally to the State and the defense.”). Thus, Appellee asks this

Honorable Court to overrule the State’s issue to the extent that it argues

that “the implied consent statute” required that the trial court deny

appellee’s motion to suppress.

!     If this Honorable Court holds the issue is properly presented, then

Villarreal applies. The court of criminal appeals stated, “the provisions in

the Transportation Code do not, taken by themselves, form a

constitutionally valid alternative to the Fourth Amendment warrant

requirement” and “a nonconsensual search of a DWI suspect’s blood

conducted pursuant to the mandatory-blood-draw and implied-consent


                                       31
provisions in the Transportation Code, when undertaken in the absence of

a warrant or any applicable exception to the warrant requirement, violates

the Fourth Amendment.” State v. Villarreal, No. PD–0306–14, 2014 WL

6734178, at **20–21 (Tex. Crim. App. Nov. 26, 2014, pet. granted). Here,

the search was non-consensual even according to the police officer. (RRv2

at 38).

                                      Prayer

!     Appellee, Benjamin DelaRosa, respectfully requests this Honorable

Court to affirm the ruling of the trial court.

!     !      !     !      !     !      Respectfully Submitted,


                                       John S. Gilmore, Jr.
                                       Attorney at Law
                                       State Bar No. 07958500
                                       622 S. Tancahua
                                       Corpus Christi, TX 78401
                                       Tel: (361) 882-4378



                                       By: /s/ John S. Gilmore, Jr.!
                                          John S. Gilmore, Jr.
                                         Attorney for Benjamin DelaRosa




                                         32
                     CERTIFICATE OF COMPLIANCE

     I, John Gilmore, certify this brief contains 5,794 words in those matters
not exempted by Rule 9 as counted in the Pages application.


                                   By: /s/ John S. Gilmore, Jr.!
                                      John S. Gilmore, Jr.


                        CERTIFICATE OF SERVICE

!    This is to certify that on June 26, 2015, a true and correct copy of the

above and foregoing document was served on the District Attorney's Office,

Nueces County, 901 LEOPARD STRET, CORPUS CHRISTI, TEXAS

78401, as set forth in Texas Rules Appellate Procedure for delivery of

electronically filed documents.


!    !     !     !     !     !
                                   By: /s/ John S. Gilmore, Jr.!
                                      John S. Gilmore, Jr.




                                      33
