                          NUMBER 13-13-00357-CR

                          COURT OF APPEALS

                THIRTEENTH DISTRICT OF TEXAS

                  CORPUS CHRISTI – EDINBURG

THE STATE OF TEXAS,                                                    Appellant,

                                             v.


MITCHELL McCLENDON,                                                      Appellee.


                   On appeal from the 28th District Court
                          of Nueces County, Texas.


                       MEMORANDUM OPINION
     Before Chief Justice Valdez and Justices Garza and Longoria
              Memorandum Opinion by Chief Justice Valdez

      By one issue, the State appeals the trial court’s granting of appellee Mitchell

McClendon’s motion to suppress. We affirm.

                                I.    BACKGROUND
      Officer Brett Boyer arrested McClendon for suspicion of driving while intoxicated.

After McClendon refused to provide a blood sample, without first obtaining a warrant,

Officer Boyer ordered a phlebotomist to acquire a sample of McClendon’s blood pursuant

to section 724.012(b)(3) of the Texas Transportation Code. See TEX. TRANSP. CODE ANN.

§ 724.012 (West, Westlaw through Ch. 46 2015 R.S.) (setting out when a police officer is

required to obtain a blood sample from a person suspected of driving under the influence).

At the motion to suppress hearing, McClendon’s trial counsel argued that Boyer failed to

obtain a warrant prior to the blood draw as required under Missouri v. McNeely. See

Missouri v. McNeely, __ U.S. __, 133 S.Ct. 1552 (2013). The State responded that the

blood draw statute supported Officer Boyer’s ordering of the blood draw and that Officer

Boyer relied on the statute in good faith. The State conceded that there were no exigent

circumstances in this case, and it did not argue that any other exception to the warrant

requirement applied.1

      The trial court granted McClendon’s motion to suppress and entered findings of

fact and conclusions of law. This appeal followed.

                        II.     STANDARD OF REVIEW AND APPLICABLE LAW

      We review a trial court’s decision on a motion to suppress for an abuse of

discretion. Crain v. State, 315 S.W.3d 43, 48 (Tex. Crim. App. 2010). Under our abuse

of discretion analysis, we use a bifurcated standard. State v. Ross, 32 S.W.3d 853, 856



      1   Specifically, the prosecutor said,

      And in this case, the case against [McClendon], the State isn’t arguing that it wasn’t a
      standard DWI, or that there were any exigent circumstances. We heard from the officers
      that there were none. We are only arguing that the purpose of, or the reason behind the
      blood draw was the statute that required him to get the blood sample. And for that reason,
      we ask that the defendant’s motion to suppress is denied.


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(Tex. Crim. App. 2000) (en banc) (citing Guzman v. State, 955 S.W.2d 85, 88 (Tex. Crim.

App. 1997) (en banc)); see also Urbina v. State, No. 13–08–00562–CR, 2010 WL

3279390, at *1 (Tex. App.—Corpus Christi Aug. 19, 2010, pet. ref’d) (mem. op., not

designated for publication). We give almost total deference to the trial court’s findings of

historical fact that are supported by the record and to its resolution of 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). We “review

de novo ‘mixed questions of law and fact’ that do not depend upon credibility and

demeanor.” Id. (quoting Montanez v. State, 195 S.W.3d 101, 107 (Tex. Crim. App. 2006));

Guzman, 995 S.W.2d at 89.

         “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). We will

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

the case whether we infer the fact findings or whether we 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, we uphold the trial court’s

ruling under any theory supported by the facts because an appellate court reviews

conclusions of law de novo.” Id. Under our de novo review, we are 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).




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        “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. 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.

                                           III.     DISCUSSION

        The State appears to argue that section 724.012(b) is a valid exception to the

warrant requirement.2 McClendon first responds that the State’s brief is multifarious and

then argues that the trial court properly concluded that Officer Boyer was required to

obtain a warrant and there were no exigent circumstances shown to allow the blood draw.

        This 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

subsection (b)(3) of the mandatory blood draw statute. See State v. Villarreal, No. 13–


        2  In its brief, the State claims that the “trial court abused its discretion by granting [McClendon’s]
motion to suppress blood test based solely on [McClendon’s] argument that the mandatory draw statute is
unconstitutional.” We disagree that the trial court concluded that the mandatory draw statute is
unconstitutional or that the constitutionality of the statute was at issue at the hearing. Instead, at the
hearing, all parties agreed that the only issue before the trial court was whether Officer Boyer was required
to obtain a warrant prior to the blood draw. The prosecutor stated, “And, Your Honor, prior to the beginning
of this we discussed that the only issue that would be discussed today would be the warrantless blood
draw.” And, McClendon’s trial counsel said, “I don’t want to take on the entire state of Texas to say the
statute is unconstitutional in general, just say as applied in this case, because it does violate the warrant
requirement of the [Fourth] Amendment and the United States Constitution, Texas Constitution, and Code
of Criminal Procedure.” Therefore, to the extent that the State argues on appeal that the statute is
constitutional, we need not address that issue as it is not dispositive of the appeal. See TEX. R. APP. P.
47.1.


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13–00253–CR, __ S.W.3d __, __, 2014 WL 1257150, at *11 (Tex. App.—Corpus Christi

Jan. 23, 2014) aff’d, No. PD–0306–14, 2014 WL 6734178 (Tex. Crim. App. Nov. 26, 2014)

reh’g granted, (Feb. 25, 2015). In addition, the court of criminal appeals affirmed our

decision, stating that “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 the absence of a warrant or any applicable exception to the warrant

requirement, violates the Fourth Amendment.” Villarreal, __ S.W.3d __, __, 2014 WL

6734178, at **20–21.3

        The State conceded to the trial court that there were no exigent circumstances and

did not argue that any other exceptions to the warrant requirement applied in this case.4

The trial court concluded that Officer Boyer was required to obtain a warrant for the blood

draw absent exigent circumstances.                 Accordingly, because section 724.012 of the

transportation code does not by itself form a constitutionally recognized alternative to the

warrant requirement, we conclude that the trial court did not abuse its discretion by

granting McClendon’s motion to suppress. See id. We overrule the State’s sole issue.5


        3 After affirming our decision, the Court of Criminal Appeals granted the State’s motion for

rehearing. However, it has not vacated its decision affirming our ruling or withdrawn its opinion.
       4 Although the State argued to the trial court that Officer Boyer relied on the statute in good faith, it

does not make this argument on appeal.
        5  The State also argues that other exceptions to the warrant requirement apply such as the
automobile exception and voluntary consent and waiver. The State asserts that we must consider other
things in our analysis such as “the underlying expectation of privacy as a factor” and “the nature of the
privacy interest in blood” that “will be sufficient to sustain the constitutionality of [mandatory blood draw
statutes], especially the Texas statute, which is narrowly drawn to include only the most egregious offenders
and situations.” However, although the State argued to the trial court that the McNeely decision is very
narrow, the State did not make any of the above-mentioned arguments to the trial court. Accordingly, we
may not reverse the trial court on any of these grounds. See State v. Rhinehart, 333 S.W.3d 154, 162 (Tex.

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                                                IV.      CONCLUSION

        We affirm the trial court’s judgment.

                                                            /s/ Rogelio Valdez
                                                            ROGELIO VALDEZ
                                                            Chief Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
2nd day of July, 2015.




Crim. App. 2011) (stating that the “ordinary rules of procedural default” apply to the “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.”); see also Martinez v. State, 91 S.W.3d 331, 336 (Tex. Crim. App.
2002) (“And so it is that appellate courts may uphold a trial court’s ruling on any legal theory or basis
applicable to the case, but usually may not reverse a trial court’s ruling on any theory or basis that might
have been applicable to the case, but was not raised.”).


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