                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-14-00182-CR


BRIAN LEE GREEN                                               APPELLANT

                                      V.

THE STATE OF TEXAS                                                 STATE


                                   ----------

          FROM THE 235TH DISTRICT COURT OF COOKE COUNTY
                      TRIAL COURT NO. 12-00163

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                       MEMORANDUM OPINION1

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      In five issues, Appellant Brian Lee Green appeals his conviction for

intoxication assault. We reverse and remand.




      1
      See Tex. R. App. P. 47.4.
                                 I. Background

      Green was arrested for driving while intoxicated (DWI) after he was

involved in an accident that injured his girlfriend, Debora Babb. Prior to trial,

Green filed a motion to suppress the blood test results.

      Green and Babb were involved in an accident at approximately 7:00 a.m.

on March 16, 2012. DPS Trooper Samuel Hellinger testified that when he arrived

on the scene, Babb was lying on the ground receiving medical care,2 and Green

was at her feet. Trooper Hellinger testified that he spoke with Green, who told

him that he had been driving and had rear-ended “a trailer [or] a vehicle in front

of him that didn’t have any lights on it whatsoever.” Hellinger confirmed that

Green’s vehicle appeared to have rear-ended another vehicle, although when the

officers arrived at the scene, no other vehicle was present.3

      Trooper Hellinger testified that he noticed a strong odor of alcohol emitting

from Green’s breath and that Green had red, glassy, bloodshot eyes, slurred

speech, and unsteady balance.       Trooper Hellinger also testified that Green




      2
      Cooke County EMS transported Babb from the scene to the North Texas
Medical Center; she was then CareFlited to John Peter Smith Hospital.
      3
        Trooper Hellinger later noticed a large commercial semitrailer located less
than a mile from the location of the accident. He alerted Trooper King, who was
assisting in the accident investigation and traffic control, to the location of the
semitrailer. Trooper King then investigated the semitrailer and confirmed that it
was the vehicle Green had struck. Trooper Hellinger did not examine or inspect
the semitrailer.


                                         2
appeared to be disoriented as to time.4 When questioned, Green denied that he

had been drinking, but when he blew into a preliminary breath test, the device

registered alcohol on his breath. As a result, Trooper Hellinger performed the

horizontal gaze nystagmus test (HGN) and observed all six clues, indicating

intoxication. Trooper Hellinger then arrested Green for DWI.

      Prior to transporting Green to jail, Trooper Hellinger transported Green to

the hospital to receive medical care. Once at the hospital, Trooper Hellinger

provided Green with the DIC-24 warnings5 and asked him to consent to the

taking of a blood sample. Green refused. Trooper Hellinger then completed a

THP-51 form6 and thereafter obtained a blood specimen from Green without a

warrant or his consent.     The blood test, which was taken at 7:58 a.m.,




      4
      When asked what time it was, Green stated that he believed it was
between 2:00 and 4:00 in the morning. The actual time was 7:17 a.m.
      5
       The DIC-24 is the Texas Department of Public Safety’s standard form
containing the written warnings required by the transportation code to be read to
an individual arrested for DWI before a peace officer requests a voluntary blood
or breath sample from a person. See Tex. Transp. Code Ann. § 724.015 (West
Supp. 2015); State v. Neesley, 239 S.W.3d 780, 782 n.1 (Tex. Crim. App. 2007).
      6
        Form THP–51 is the statutory authorization form that allows a peace
officer to require that a hospital perform a mandatory blood draw. See Tex.
Transp. Code Ann. § 724.012(b) (West 2011); Neesley, 239 S.W.3d at 782 n.2;
Whitaker v. State, No. 05-12-01116-CR, 2013 WL 5969560, at *2 n.2 (Tex.
App.—Dallas Nov. 7, 2013, no pet.) (not designated for publication).


                                       3
approximately an hour after the accident, revealed that Green had a blood-

alcohol content of 0.173.7

      Trooper Hellinger testified that, generally, when an individual refuses a

blood draw, he would bring the person to the jail, and watch him while he filled

out a blood search warrant affidavit. He would then have the affidavit notarized

by a jailer and fax it to the judge, who would return a warrant by fax. In this case,

Trooper Hellinger testified that he did not attempt to get a warrant. Instead, he

relied solely upon section 724.012 of the transportation code, which authorized

him to obtain Green’s blood without a warrant and without Green’s consent. He

also admitted that had he not relied upon section 724.012, he could have

obtained a warrant under the circumstances of this case.

      Trooper Hellinger admitted that had he not relied upon the statute in this

case, he could have presented a probable cause affidavit, even a handwritten

one, by fax to a judge.8 But he further added that, without a fax machine and

notary on the hospital premises, he would not have been able to get a warrant

until 11:00 a.m.9 Trooper Hellinger also testified that the blood evidence would


      7
         The legal limit is 0.08. See Tex. Penal Code Ann. § 49.01(2)(B) (West
2011).
      8
       Trooper Hellinger testified that he probably could have used the hospital’s
fax machine, but he did not inquire that evening as to whether a notary was
available on the premises.
      9
      That would have been the time when he was able to get to the jail with
Green once Green was released from the hospital.


                                         4
have “changed significantly” if he had been forced to wait to obtain it. However,

there is no evidence in this record as to whether he actually would have had to

wait in these circumstances. Because he relied solely on the statute to authorize

the blood draw, Trooper Hellinger did not ascertain whether he could have

obtained a warrant that morning.

      After hearing Trooper Hellinger’s testimony and reviewing the dashboard

camera footage, the trial court denied Green’s motion to suppress.

                              II. Motion to Suppress

      In his first and second issues, Green argues that his Fourth Amendment

rights were violated when Trooper Hellinger forced him to provide a blood sample

without first obtaining a warrant.10

A. Standard of Review

      We review a trial court’s ruling on a motion to suppress evidence under a

bifurcated standard of review.     Amador v. State, 221 S.W.3d 666, 673 (Tex.

Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).

We give almost total deference to a trial court’s rulings on questions of historical

fact and application-of-law-to-fact questions that turn on an evaluation of

credibility and demeanor, but we review de novo application-of-law-to-fact

questions that do not turn on credibility and demeanor. Amador, 221 S.W.3d at

      10
         Green’s third issue also challenges the warrantless, nonconsensual
blood draw, while his fourth and fifth issues address the qualifications of the
medical technician who took his blood sample. Based on our resolution of his
first two issues, we do not reach his remaining issues. See Tex. R. App. P. 47.1.


                                         5
673; Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005); Johnson v.

State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002).

B. Analysis

      The court of criminal appeals recently held that warrantless blood or breath

samples taken without consent solely in reliance on transportation code

provisions such as section 724.012 violate the warrant requirement of the Fourth

Amendment.     State v. Villarreal, No. PD-0306-14, 2014 WL 6734178, at *20

(Tex. Crim. App. Nov. 26, 2014).      Trooper Hellinger’s reliance upon section

724.012 for the warrantless, nonconsensual blood draw and his good-faith belief

that the statute authorized the warrantless search do not overcome the

exclusionary rule. Lewis v. State, No. 02-13-00416-CR, 2015 WL 1119966, at *2

(Tex. App.—Fort Worth Mar. 12, 2015, pet. filed) (mem. op., not designated for

publication) (citing Burks v. State, 454 S.W.3d 705, 709 (Tex. App.—Fort Worth

2015, no pet.)).

      The State argued at the suppression hearing that exigent circumstances

existed to support the warrantless blood draw. But Trooper Hellinger admitted

that he did not explore his ability to obtain a warrant under the circumstances and

instead acted only in reliance upon section 724.012.       At best, the evidence

demonstrates that Trooper Hellinger simply did not know whether there were

exigent circumstances. His failure to ascertain his ability to obtain a warrant

while at the hospital with Green presents a fact situation similar to that in




                                        6
Schmerber v. California, 384 U.S. 757 (1966).11 In discussing Schmerber, the

Supreme Court, noting the technological advances in the fifty years since

Schmerber evidenced by the fact that a majority of States now allow police

officers to apply for search warrants remotely through means such as telephone,

fax, electronic communication, and video conferencing, has admonished against

ignoring the technological developments in warrant procedures at the risk of

“diminish[ing] the incentive for jurisdictions ‘to pursue progressive approaches to

warrant acquisition that preserve the protections afforded by the warrant while

meeting the legitimate interests of law enforcement.’” Missouri v. McNeely, 133

S.Ct. 1552, 1561–63 (2013) (quoting State v. Rodriguez, 156 P.3d 771, 779

(Utah 2007)). While McNeely acknowledged that such technological advances

do not eliminate all delay,12 the court did point out that, “technological

developments that enable police officers to secure warrants more quickly, and do

so without undermining the neutral magistrate judge’s essential role as a check

on police discretion, are relevant to an assessment of exigency.” Id. at 1562–63.




      11
       The delay at issue in Schmerber resulted from the accused having to
have been taken to the hospital. Id.
      12
        McNeely allows that some delay is inevitable because the suspect must
be transported to a medical facility to conduct the blood draw. Id. at 1561. But in
such circumstances, the Supreme Court points out that “an officer can take steps
to secure a warrant while the suspect is being transported to a medical facility by
another officer. In such a circumstance, there would be no plausible justification
for an exception to the warrant requirement.” Id.


                                        7
      Here, Trooper Hellinger had these technological resources legally

available to him. Nevertheless, he made no attempt to ascertain whether he

could employ them. Instead, he relied only upon section 724.012, which, at the

time—more than two and a half years prior to the Villarreal decision—was

understandable.    See also State v. Ruiz, No. 13-13-00507-CR, 2015 WL

5626252, at *6 (Tex. App.—Corpus Christi Aug. 27, 2015, pet. filed) (affirming

trial court’s granting of motion to suppress where officer relied upon statute in

conducting warrantless blood draw where State produced no evidence that a

more expeditious process to obtain a warrant, such as by telephone, was not

available); Cole v. State, 454 S.W.3d 89, 103 (Tex. App.—Texarkana 2014, pet.

granted) (holding that the State failed to show exigent circumstances where no

attempt was made to obtain a warrant, even though the officer knew neutral

magistrates were on call and available to consider warrant requests, and other

officers were available to assist in obtaining a warrant). The trial court likewise

ruled without the benefit of Villarreal—which was issued almost eight months

after the suppression hearing—and, in hindsight, erred in its application of the

law to the facts of this case and, thus, in denying Green’s motion to suppress.

See id.




                                        8
                               III. Harm Analysis

      Having found error, we must conduct a harm analysis to determine

whether the error calls for reversal of the judgment. See Tex. R. App. P. 44.2.

Because the error is constitutional, we apply rule 44.2(a) and reverse unless we

determine beyond a reasonable doubt that the error did not contribute to

appellant’s conviction or punishment. See Tex. R. App. P. 44.2(a). The question

is whether the trial court’s erroneous denial of Green’s motion to suppress was

harmless beyond a reasonable doubt. See Williams v. State, 958 S.W.2d 186,

194 (Tex. Crim. App. 1997). In applying the “harmless error” test, our primary

question is whether there is a “reasonable possibility” that the error might have

contributed to the conviction. Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim.

App. 1998) (op. on reh’g), cert. denied, 526 U.S. 1070 (1999).

      We are directed that our harmless error analysis should not focus on the

propriety of the outcome of the trial. Instead, we must calculate, as much as

possible, the probable impact of the evidence on the jury in light of the existence

of other evidence. Wesbrook v. State, 29 S.W.3d 103, 119 (Tex. Crim. App.

2000), cert. denied, 532 U.S. 944 (2001). We “should take into account any and

every circumstance apparent in the record that logically informs an appellate

determination whether ‘beyond a reasonable doubt [that particular] error did not

contribute to the conviction or punishment,’” and if applicable, we may consider

the nature of the error, the extent that it was emphasized by the State, its

probable collateral implications, and the weight a juror would probably place on


                                        9
the error.   Snowden v. State, 353 S.W.3d 815, 822 (Tex. Crim. App. 2011)

(quoting Tex. R. App. P. 44.2(a)). This requires us to evaluate the entire record

in a neutral, impartial, and even-handed manner and not “in the light most

favorable to the prosecution.” Harris v. State, 790 S.W.2d 568, 586 (Tex. Crim.

App. 1989), disagreed with in part on other grounds by Snowden, 353 S.W.3d at

821–22.

      The jury not only heard that Green’s blood sample contained 0.173 grams

of alcohol per 100 milliliters of blood but also heard expert testimony that, based

upon retrograde extrapolation, Green’s blood alcohol content at the time of the

accident was between 0.188 and 0.193—more than two times the legal limit, and

both prosecutors emphasized the blood test results during closing arguments in

the guilt-innocence phase of the trial. After walking the jury through the elements

of the offense and arguing that other evidence showed that Green was

intoxicated, the first prosecutor argued,

              You didn’t need to hear what the blood tests results were to
      know that that man is intoxicated, because you-all have that kind of
      common sense, and you-all have those life experiences. But we
      didn’t stop there.

             We brought you the blood draw. So intoxication and -- well,
      and then when we brought you the blood draw, boy, did you see the
      rabbit trails and the smoke screens start up. They didn’t want that
      blood test. They didn’t like that blood test. A .173, woo. You know,
      when the legal limit is .08, that’s over twice the legal limit to be
      driving.

             ....




                                            10
            So, then it gets to -- it gets to the DPS Lab, and it’s tested
      there by a qualified chemist.        You heard him under cross-
      examination. He could answer every question. He did the test not
      once, he did it twice. And he got a result of .173, which shows
      excessive intoxication. . . .

            And then what did -- what happened with that blood? Who
      was it released to? It was released to Dr. Gary Wimbish? And
      who’s Dr. Gary Wimbish? A representative of who? Mr. Green.
      He’s a representative of the Defense. Dr. Gary Wimbish. And if Dr.
      Gary Wimbish would have had anything to say about that blood
      sample, that it wasn’t an appropriate sample, or that it wasn’t a .173,
      you know who we would have heard on the stand testifying, Dr. Gary
      Wimbish –

In the State’s rebuttal, the other prosecutor restated, “Folks, the blood test, 1.7.

And if you look at the way it would have been an hour earlier, a .188 up to a .193,

oh, he was not intoxicated, was he? He was drunk.”

      Based on the above, in calculating, as much as possible, the probable

impact of the evidence on the jury, we hold that it is likely that the jury gave

substantial weight to the warrantless blood test results. And so while there was

other evidence of Green’s intoxication—a strong odor of alcohol on Green’s

breath, the presence of alcohol in the breath test, red, glassy, bloodshot eyes,

slurred speech, unsteady balance, disorientation as to time, and the presence of

all six clues of the HGN test13—we cannot conclude beyond a reasonable doubt

that the blood-alcohol evidence did not contribute to the jury’s verdict.



      13
        The dissent points to other evidence—that Green fell asleep in the patrol
car en route to the hospital—as evidence of intoxication. The dashboard camera
video does reveal that Green appeared tired and closed his eyes more than
once, but that behavior is equally consistent with the uncontroverted testimony

                                         11
        After carefully reviewing the record and performing the required harm

analysis under rule 44.2(a), we are unable to determine beyond a reasonable

doubt that the error did not contribute to appellant’s conviction or punishment.

See Williams, 958 S.W.2d at 195. Accordingly, we sustain Green’s first and

second issues and do not reach his remaining three issues. See Tex. R. App. P.

47.1.

                                IV. Conclusion

        Because we hold that the trial court erred by denying Green’s motion to

suppress and that there is a reasonable possibility that this constitutional error

contributed to Green’s conviction or punishment, we reverse the trial court’s

order denying Green’s motion to suppress and the trial court’s judgment and

remand this case to the trial court for further proceedings consistent with this

opinion. See Tex. R. App. P. 43.2(d).

                                                  /s/ Bonnie Sudderth
                                                  BONNIE SUDDERTH
                                                  JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and SUDDERTH, JJ.

LIVINGSTON, C.J., filed a dissenting opinion.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: February 4, 2016


that Green and Babb had been out all night and had not slept prior to the
accident.


                                        12
