                                                                               PD-0662-15
                                                             COURT OF CRIMINAL APPEALS
                                                                              AUSTIN, TEXAS
                                                             Transmitted 5/29/2015 3:27:44 PM
June 1, 2015
                                                                Accepted 6/1/2015 3:10:26 PM
                                                                               ABEL ACOSTA
                             No. 04-13-00826-CR                                        CLERK

                   TO THE COURT OF CRIMINAL APPEALS

                         OF THE STATE OF TEXAS


 TAYLOR M. MOSER,                                                  Appellant

 v.

 THE STATE OF TEXAS,                                                Appellee



                         Appeal from Gillespie County


                                 * * * * *

               STATE’S PETITION FOR DISCRETIONARY REVIEW


                                 * * * * *



                              LISA C. McMINN
                          State Prosecuting Attorney
                            Bar I.D. No. 13803300

                          STACEY M. GOLDSTEIN
                      Assistant State Prosecuting Attorney
                             Bar I.D. No. 24031632

                                P.O. Box 13046
                              Austin, Texas 78711
                          information@spa.texas.gov
                          512-463-1660 (Telephone)
                              512-463-5724 (Fax)
           IDENTITY OF JUDGE, PARTIES, AND COUNSEL

*   The parties to the trial court’s judgment are the State of Texas and Appellant,
    Taylor M. Moser.

*   The trial Judge was the Hon. N. Keith Williams.

*   Counsel for the State at trial and before the Court of Appeals was Steven
    Wadsworth, Assistant District Attorney, 200 Earl Garrett Street, Suite 202,
    Kerrville, Texas 78028.

*   Counsel for the State before the Court of Criminal Appeals is Stacey M.
    Goldstein, Assistant State Prosecuting Attorney, P.O. Box 13046, Austin,
    Texas 78711.

*   Counsel for Appellant at trial was Harold Danford, 813 Barnett Street,
    Kerrville, Texas 78028.

*   Counsel for Appellant before the Court of Appeals were Harold Danford and
    Jennifer R. Yeager, 813 Barnett Street, Kerrville, Texas 78028.
                                       TABLE OF CONTENTS

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii-iv

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

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-2

STATEMENT OF PROCEDURAL HISTORY. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

GROUNDS FOR REVIEW.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2-3

1.      Is a challenge to a warrantless, mandatory blood draw based on Missouri
        v. McNeely preserved for appellate review when Appellant did not raise it
        in a motion to suppress or at the suppression hearing?

2.      Is a warrantless, mandatory blood draw conducted pursuant to T EX.
        T RANS. C ODE § 724.012(b)(1)(A)—the resulting death provision—
        reasonable under the Fourth Amendment?

3.      Do the federal and state (T EX. C ODE C RIM. P ROC. art. 38.23) exclusionary
        rules require suppression when, at the time of the search, the warrantless
        blood draw was authorized by T EX. T RANS. C ODE § 724.012(b)(1)(A) and
        binding caselaw?

4.      Did exigency justify the warrantless draw when the trooper knew the fatal
        accident occurred more than two hours before he met with Appellant and
        he had first investigated the scene, and did the lower court err in failing to
        consider exigency a basis to uphold the trial court’s refusal to suppress?

ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3-10

PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11-12

CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14



                                                         i
APPENDIX (Opinion of the Court of Appeals)




                                    ii
                                       INDEX OF AUTHORITIES

Cases

Cole v. State, PD-0077-15 (granted April 22, 2015). . . . . . . . . . . . . . . . . . 7, 7 n.6, 8

Douds v. State, PD-0857-14 (submitted March 18, 2015).. . . . . . . . . . . . . 7 n.7, n.8

State v. Esparza, 413 S.W.3d 81 (Tex. Crim. App. 2013).. . . . . . . . . . . . . . . . . 6 n.4

Hailey v. State, 87 S.W.3d 118 (Tex. Crim. App. 2002). . . . . . . . . . . . . . . . . 10 n.10

Hernandez v. State, 176 S.W.3d 821 (Tex. Crim. App. 2005). . . . . . . . . . . . . . 6 n.5

Holidy v. State, No. PD-0622-14 (granted Aug. 20, 2014; argued and submitted Jan.
14, 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 n.8

Leal v. State, PD-1638-14 (Tex. Crim. App. 2015). . . . . . . . . . . . . . . . . . . . . . . 7 n.7

State v. Mercado, 972 S.W.2d 75 (Tex. Crim. App. 1998). . . . . . . . . . . . . . . 10 n.10

Missouri v. McNeely, 133 S. Ct 1552 (2013).. . . . . . . . . . . . . . . . . . . . . . . . . 5, 9-10

Moser v. State, No. 04-13-00826-CR, 2015 Tex. App. LEXIS 4318 (Tex. App.—San
Antonio April 29, 2015) (not designated for publication). . . . . . . . . . . . . . . . passim

Pham v. State, 175 S.W.3d 767 (Tex. Crim. App. 2005). . . . . . . . . . . . . . . . . . 6 n.4

Reeder v. State, No. PD-0601-14 (granted Aug. 20, 2014; argued and submitted Jan.
15, 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 n.8

Schmerber v. California, 384 U.S. 757 (1966). . . . . . . . . . . . . . . . . . . . . . . . . . 9-10

Villarreal v. State, No. PD-0306-14, 2014 Tex. Crim. App. LEXIS 1898 (Tex. Crim.
App. Nov. 26, 2014, reh’g granted). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 n.6

Weems v. State, No. PD-0635-14 (granted Aug. 20, 2014; argued and submitted Nov.
17, 2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 n.8

                                                            iii
Statutes and Rules

T EX. C ODE C RIM. P ROC. art. 28.01 § 2.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

T EX. C ODE C RIM. P ROC. art. 38.23. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

T EX. T RANS. C ODE § 724.012(b)(1)(A). . . . . . . . . . . . . . . . . . . . . . . . . . . 2 n.1, 3 n.2

T EX. R. A PP. P. 33.1(a)(1)(A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

T EX. R. A PP. P. 44.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11




                                                           iv
                               No. 04-13-00826-CR

                  TO THE COURT OF CRIMINAL APPEALS

                           OF THE STATE OF TEXAS

TAYLOR M. MOSER,                                                           Appellant

v.

THE STATE OF TEXAS,                                                         Appellee


                          Appeal from Gillespie County


                                    * * * * *

          STATE’S PETITION FOR DISCRETIONARY REVIEW

                                    * * * * *

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

     The State Prosecuting Attorney respectfully urges this Court to grant review.

              STATEMENT REGARDING ORAL ARGUMENT

      The State does not request oral argument.

                         STATEMENT OF THE CASE

     After a hearing, the trial denied Appellant’s motions to suppress challenging the

legality of his arrest and compliance with the mandatory blood draw statute.

Appellant pled guilty to intoxication manslaughter and was sentenced to ten years’



                                         1
imprisonment and fined $500. The court of appeals reversed the suppression ruling,

holding that the warrantless blood draw1 violated the Fourth Amendment. The court

then rejected the State’s argument that the remedy of suppression should not be

applied.

                    STATEMENT OF PROCEDURAL HISTORY

         The court of appeals reversed the trial court’s denial of Appellant’s motion to

suppress. Moser v. State, No. 04-13-00826-CR, 2015 Tex. App. LEXIS 4318 (Tex.

App.—San Antonio April 29, 2015) (not designated for publication). The State did

not seek rehearing.

                              GROUNDS FOR REVIEW

1.       Is a challenge to a warrantless, mandatory blood draw based on Missouri
         v. McNeely preserved for appellate review when Appellant did not raise it
         in a motion to suppress or at the suppression hearing?

2.       Is a warrantless, mandatory blood draw conducted pursuant to T EX.
         T RANS. C ODE § 724.012(b)(1)(A)—the resulting death provision—
         reasonable under the Fourth Amendment?

3.       Do the federal and state (T EX. C ODE C RIM. P ROC. art. 38.23) exclusionary
         rules require suppression when, at the time of the search, the warrantless
         blood draw was authorized by T EX. T RANS. C ODE § 724.012(b)(1)(A) and
         binding caselaw?

4.       Did exigency justify the warrantless draw when the trooper knew the fatal
         accident occurred more than two hours before he met with Appellant and


     1
      Appellant’s blood was drawn under T EX. T RANS. C ODE § 724.012(b)(1)(A)
because his friend (and backseat passenger) died as a result of the rollover accident.

                                            2
         he had first investigated the scene, and did the lower court err in failing to
         consider exigency a basis to uphold the trial court’s refusal to suppress?

                                     ARGUMENT

1.       Appellant’s challenge to the warrantless mandatory blood draw was not
         preserved.

         Appellant filed three suppression motions. 1 CR 52-62. The first challenged

his arrest. The second challenged the mandatory blood draw pursuant to Texas

Transportation Code Section 724.012(b)(1)(A).2         And the third challenged the

admissibility of the blood drawn for purposes of medical care.

         In his motion to suppress based on the mandatory blood draw, Appellant argued,

in part: (1) he was arrested without warrant, reasonable suspicion, or probable cause

in violation of the Fourth Amendment; (2) because he was unlawfully arrested, there

is no “deemed consent” under Transportation Code Section 724.011; (3) the Trooper

failed to give the statutory warnings required by Transportation Code Section

724.015; (4) the Appellant did not voluntarily, knowingly, and intelligently consent;

(5) the blood was not drawn within a reasonable amount of time; (6) the Trooper did

not have a reasonable belief that Appellant caused the accident; (7) the Trooper did

not specify any facts showing that Appellant was intoxicated; and (8) the blood was

not drawn from a qualified technician or in a sanitary place as required by Section


     2
     Section 724.012(b)(1)(A) requires a police officer to obtain a specimen when the
officer reasonably believes that an individual has died.

                                            3
724.017. 1 CR 56-58.

      At the suppression hearing, the trial court asked Appellant which of three

motions he wished to have heard. 2 RR 4. Appellant stated that the motions based

on the arrest and mandatory blood draw. 2 RR 4. He explained that he narrowed the

issues raised in his motions:

      That’s the gist, and it’s kind of a combination of the motion to suppress
      the arrest of the Defendant and the motion to suppress the blood taken by
      DPS. I’ve kind of combined those two and narrowed it down, but that’s
      what we’re here for, probable cause to arrest. If he didn’t have probable
      cause to arrest, then it’s our position the blood test should be suppressed.

2 RR 5.

      Further, in closing, Appellant argued that the offense was not committed in the

Trooper’s presence, as required for an arrest according to Texas Code of Criminal

Procedure Article 14.01. 2 RR 71-72. Appellant also stated that the facts known to

the Trooper were insufficient to provide probable cause of DWI or that the accident

was caused by Appellant’s intoxication. 2 RR 72-75. Appellant then argued that he

was never arrested, which is a necessary predicate for a mandatory draw. 2 RR 75-76.

      The trial court denied Appellant’s suppression requests.         2 RR 78.      He

concluded that there was probable cause to arrest, that Appellant had been advised he

was under arrest for purposes of the blood draw, and therefore was deemed to have

impliedly consented. 2 RR 78.        The trial court then asked Appellant’s attorney



                                           4
whether any further hearings were needed because “there are two others.”3 2 RR 78.

Counsel answered, “No.” 2 RR 78.

       On appeal, for the first time, Appellant challenged the legality of the draw based

on Missouri v. McNeely, 133 S. Ct 1552 (2013). Appellant’s Brief, at 6-7. The court

of appeals ruled in his favor, holding that the draw was not reasonable. Moser, 2015

Tex. App. LEXIS 4318, at *10.

       The court of appeals erred by not considering preservation before addressing the

merits because Appellant failed to lodge a specific and timely objection. See T EX. R.

A PP. P. 33.1(a)(1)(A) (requiring a complaint to be timely and the reason to be made

with “sufficient specificity” to make the trial court aware of it). Appellant’s motions

and suppression hearing arguments never challenged the validity of the draw

mandated by Section 724.012(b)(1)(A) based on McNeely. Contrary to Appellant’s

assertion in the court of appeals, Appellant’s Brief, at 6, citation to the Fourth

Amendment alone is insufficient to raise a claim that Section 724.012(b) violates the

Fourth Amendment by not requiring a warrant or that an officer who complies with

the statute must obtain a warrant.

       Additionally, Appellant was responsible for timely designating any suppression



   3
      This statement belies Appellant’s and the court of appeals’ belief that the trial
court ruled on all the motions and issues included in the motions. See Appellant’s
Brief in the Court of Appeals, at 3; Moser, 2015 Tex. App. LEXIS 4318, at *2.

                                            5
issue(s) under Texas Code of Criminal Procedure Article 28.01, Section 2. That

provision states that pretrial hearing matters not raised or filed seven days before the

hearing cannot thereafter be raised or filed, except with the court’s permission and

good cause shown. T EX. C ODE C RIM. P ROC. art. 28.01 § 2. Unless challenged by a

specific objection or motion, the State need not present evidence to satisfy its ultimate

burden with respect to any viable, potential issue that could be raised by the

defendant.4 If no rule preventing unfair surprise existed, then the State would be

saddled with the burden of securing all the necessary witnesses to address each and

every possible legal issue a defendant could decide to raise at a scheduled hearing.5

       This Court should grant review and summarily remand for the court of appeals




   4
     See Pham v. State, 175 S.W.3d 767, 773-74 (Tex. Crim. App. 2005) (“We have
long held that the burden of persuasion is properly and permanently placed upon the
shoulders of the moving party. When a criminal defendant claims the right to
protection under an exclusionary rule of evidence, it is his task to prove his case.”)
(internal quotes deleted); cf. State v. Esparza, 413 S.W.3d 81, 86 (Tex. Crim. App.
2013) (while the proponent of scientific evidence carries the burden of proving
reliability at a pretrial hearing or at trial, the proponent is not obligated to satisfy the
burden until the opponent objects on the basis of reliability). Nor should such
hearings be treated as a mechanism for discovery.
  5
     Cf. Hernandez v. State, 176 S.W.3d 821, 825-26 (Tex. Crim. App. 2005) (State’s
failure to provide T EX. R. E VID. 404(b) notice indicates that it does not think an
extraneous offense is relevant, thereby relieving the defendant of having to prepare
to defend against it).

                                             6
to consider whether Appellant preserved his claim.6 Alternatively, this Court should

hold that Appellant failed to preserve error. Recent action by the Court indicates that

it has become interested in setting firmer guidelines with respect to pretrial

suppression issue preservation requirements.7

2.       Alternatively, the draw was reasonable under the Fourth Amendment.

         The warrantless blood draw, conducted under Texas Transportation Code

Section 724.012(b)(1)(A), was reasonable under Fourth Amendment jurisprudence.

Review should be granted because the same issue is pending in Cole v. State, PD-

0077-15 (granted April 22, 2015).8


     6
      Because of this threshold issue and the viable exigency claim, it may not be
necessary for the Court to hold this petition until Villarreal v. State, No. PD-0306-14,
2014 Tex. Crim. App. LEXIS 1898 (Tex. Crim. App. Nov. 26, 2014, reh’g granted),
and Cole v. State, PD-0077-15 (granted April 22, 2015), are resolved.
     7
      This Court remanded Leal v. State, PD-1638-14 (Tex. Crim. App. 2015) (not
designated for publication), in March for the court of appeals to determine whether
Appellant’s motion for new trial, which was considered at a live hearing, preserved
a challenge to the legality of a warrantless blood draw. And in September 2014, the
Court granted review in Douds v. State, PD-0857-14 (submitted March 18, 2015), to
consider, in part, whether Appellant’s challenge to a warrantless blood draw was
preserved when he filed a boilerplate motion to suppress.
     8
       The same issue, as it relates to the repeat offender provision, is pending on
rehearing in Villarreal, and in Holidy v. State, No. PD-0622-14 (granted Aug. 20,
2014; argued and submitted Jan. 14, 2015), and Reeder v. State, No. PD-0601-14
(granted Aug. 20, 2014; argued and submitted Jan. 15, 2015). Two other granted
cases deal with accidents involving non-fatal injuries. Douds, PD-0857-14 (granted
Sept. 17, 2014 and submitted March 18, 2015); Weems v. State, No. PD-0635-14
(granted Aug. 20, 2014; argued and submitted Nov. 17, 2014).

                                           7
3.       Even if foregoing issues are resolved in Appellant’s favor, the federal and
         state exclusionary rules do not require suppression because police relied on
         binding law authorizing the search at the time it was conducted.

         In Cole, PD-0077-15, this Court also granted review to decide whether the

remedy of suppression under the federal and state (T EX. C ODE C RIM. P ROC. art. 38.23)

exclusionary rules, which are intended to deter police misconduct, is appropriate when

the blood draw was conducted pursuant to a presumptively valid statute and case law

interpreting it. Therefore, the Court should grant review here to determine the

propriety of the court of appeals’ determination that the federal and state exclusionary

rules are applicable. See Moser, 2015 Tex. App. LEXIS 4318, at *10.

4.       Exigent Circumstances Justified the Draw.

         Dispatch called Trooper Bacon about the rollover accident at 4:00 a.m.9 2 RR

8. He arrived on the scene around 4:16 and discussed the investigation with other

officers already on site.    2 RR 8-21, 30.     He learned that Appellant had been

transported to the hospital and that the backseat occupant—Jesus Martinez—had died.

2 RR 14. The passenger-seat occupant told him that the three had shared a bottle of

vodka earlier in the day. 2 RR 15. Bacon observed a partially filled beer can that had

been found in the car. 2 RR 12, 42. When Bacon was informed that Appellant was

going to be discharged from the hospital, he stopped investigating and headed to the


     9
     The accident occurred at approximately 2:30 a.m. but Bacon did not know the
approximate time until he investigated further after leaving the hospital. 2 RR 25.

                                           8
hospital. 2 RR 20. Bacon visited with Appellant at 5:40 for five to ten minutes. 2

RR 24. He gave the statutory warnings at 5:47, 2 RR 25, and placed him under arrest

at 5:57. 2 RR 43.

      In McNeely, the Supreme Court held that the natural dissipation of alcohol from

the blood stream does not establish exigency per se but is a factor to consider in a

totality of the circumstances analysis. Id. at 1558-63. The Court observed that in

Schmerber v. California, 384 U.S. 757, 771-72 (1966), exigency was present because

of the dissipation of alcohol from the blood stream combined with the fact that the

officer had to transport the accused to the hospital and investigate the accident scene.

McNeely, 133 S. Ct. at 1560.

      Here, the objective facts support Bacon’s decision to act without a warrant.

Bacon knew that the accident occurred before 4:00 a.m., when he was called by

dispatch. Having arrived at the scene first to investigate, it took him another hour and

forty minutes to meet with Appellant at the hospital.          Appellant was arrested

seventeen minutes later. So nearly two hours passed from the time dispatch called

until the time he arrested Appellant. Bacon knew Appellant had shared a bottle of

vodka at some unspecified time earlier in the day, and he knew an open can of beer

had been found in the car. From these facts and circumstances, Bacon could have

reasonably concluded that any further delay to obtain a warrant would likely thwart



                                           9
the State’s ability to obtain evidence of intoxication. See McNeely, 133 S. Ct. at 1561

(“a significant delay in testing will negatively affect the probative value of the

results”); Schmerber, 384 U.S. at 769 (two-hour delay in drawing blood after the

accident).

        The court of appeals never considered exigency as a basis to uphold the trial

court’s ruling.10 Therefore, in the event the Court rules in Appellant’s favor on the

issues above, the Court should remand and order the court of appeal to consider

whether exigent circumstances justified the warrantless draw. Alternatively, the Court

should reverse the lower court’s decision on this basis.




   10
      Exigency is not procedurally defaulted since the State was the winning party in
the trial court. Hailey v. State, 87 S.W.3d 118, 121-22 (Tex. Crim. App. 2002)
(“‘Ordinary notions of procedural default’ do not require a prevailing party to list or
verbalize ‘in the trial court every possible basis for upholding’ its decision.”) (quoting
State v. Mercado, 972 S.W.2d 75, 77-78 (Tex. Crim. App. 1998)).

                                           10
                             PRAYER FOR RELIEF

      The State prays that the Court of Criminal Appeals grant review and summarily

reverse the decision of the court of appeals and remand the case for the court to

consider whether Appellant’s challenge to the warrantless draw was preserved.

      Alternatively, the Court should grant review and reverse the court of appeals

because (1) Appellant’s blood draw claim was not preserved or, alternatively, (2) it

erred to hold that the warrantless draw was unreasonable.

      Also in the alternative, the court should grant review and reverse the court of

appeals and (1) remand for it to consider exigency or, alternatively, (2) hold that

exigent circumstances justified the warrantless draw.

      Finally, should the Court reject the foregoing arguments, the case should be

remanded for the court of appeals to consider whether the erroneous admission was

harmful. See T EX. R. A PP. P. 44.2.


                                       Respectfully submitted,

                                        LISA C. McMINN
                                        State Prosecuting Attorney
                                        Bar I.D. No.13803300


                                        /s/ STACEY M. GOLDSTEIN
                                        Assistant State Prosecuting Attorney


                                         11
Bar I.D. No. 24031632


P.O. Box 13046
Austin, Texas 78711
information@spa.texas.gov
512-463-1660 (Telephone)
512-463-5724 (Fax)




 12
                      CERTIFICATE OF COMPLIANCE

      The undersigned certifies that according to the WordPerfect word count tool this

document contains 2,196 words, exclusive of the items excepted by T EX. R. A PP. P.

9.4(i)(1).


                                       /s/ STACEY M. GOLDSTEIN
                                       Assistant State Prosecuting Attorney




                                         13
                          CERTIFICATE OF SERVICE

      The undersigned certifies that a copy of the State’s Petition for Discretionary

Review has been served on May 29, 2015, via certified electronic service provider to:

Hon. Steven Wadsworth
200 Earl Garrett Street
Suite 202
Kerrville, Texas 78028

Hon. Harold Danford
Hon. Jennifer R. Yeager
813 Barnett Street
Kerrville, Texas 78028


                                       /s/ STACEY M. GOLDSTEIN
                                       Assistant State Prosecuting Attorney




                                         14
APPENDIX
                                                 2 of 100 DOCUMENTS

                          Taylor M . M OSER, Appellant v. The STATE of Texas, Appellee

                                                  No. 04-13-00826-CR

                    COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO

                                              2015 Tex. App. LEXIS 4318


                                               April 29, 2015, Delivered
                                                 April 29, 2015, Filed

NOTICE: PLEASE CONSULT THE TEXAS RULES                        trial court. The first motion sought suppression of his
OF APPELLATE PROCEDURE FOR CITATION OF                        arrest. The second motion sought suppression of the
UNPUBLISHED OPINIONS.                                         results of a blood test taken at the direction of the Texas
                                                              Department of Public [*2] Safety. The third motion
PRIOR HISTORY:             [*1] From the 216th Judicial       sought suppression of results of any blood tests
District Court, Gillespie County, Texas. Trial Court No.      performed by the hospital. The trial court heard all three
4960. Honorable N. Keith W illiams, Judge Presiding.          motions at an evidentiary hearing. The State stipulated
                                                              that Moser was arrested without a warrant and his blood
DISPOSITION:        REVERSED AND REMANDED.                    was taken without a warrant.
                                                                  At the hearing, Trooper Mike Bacon, an officer with
COUNSEL: FOR APPELLANT: Harold J. Danford,
                                                              the Department of Public Safety in Fredericksburg,
Danford Law Firm, Kerrville, TX.
                                                              Texas, testified that on September 14, 2009, he was the
                                                              on-call trooper for Gillespie County. At about 4:00 a.m.,
FOR APPELLEE: Steven A. W adsworth, Assistant
                                                              he was at home when he received a call from
District Attorney, Kerrville, TX.
                                                              Fredericksburg dispatch regarding a one-car rollover
                                                              accident on Highway 16. He then met with Sergeant
JUDGES: Opinion by: Karen Angelini, Justice. Sitting:
                                                              W alter Todd at the Gillespie County Sheriff's Office.
Sandee Bryan Marion, Chief Justice, Karen Angelini,
                                                              According to Trooper Bacon, Sergeant Todd was
Justice, Marialyn Barnard, Justice.
                                                              searching for one of the occupants of the vehicle who
                                                              had left the scene of the accident. Sergeant Todd told
OPINION BY: Karen Angelini
                                                              Trooper Bacon the location of the accident. W hen
                                                              Trooper Bacon arrived at the scene, he was informed by
OPINION
                                                              Deputy Moellering and Deputy Robinson that the person
                                                              who had identified himself as the driver of the vehicle
M EM ORANDUM OPINION
                                                              had been transported to the hospital; that another
    REVERSED AND REMANDED                                     occupant of the vehicle had left the scene; that Sergeant
                                                              Todd was searching for him; and [*3] that they had
     Taylor M. Moser appeals the trial court's denial of
                                                              secured the scene. According to Trooper Bacon, the
his motions to suppress evidence. W e conclude the trial
                                                              person who identified himself as the driver was
court did not err in denying Moser's motion to suppress
                                                              Appellant Moser.
his arrest. However, because Moser's rights under the
Fourth Amendment were violated by the taking of a                  Trooper Bacon testified that he investigated the
warrantless, nonconsensual blood draw, the trial court        crash scene. He saw an open twelve-ounce can of beer
erred in denying his motions to suppress the results of the   wedged between the driver's seat and the driver's
blood tests. W e therefore reverse the trial court's          floorboard area. The justice of peace on site, Justice
judgment and remand the cause for a new trial.                Rech, told Trooper Bacon that there had been a fatality as
                                                              a result of the accident. Trooper Bacon testified that he
BACKGROUND                                                    determined the vehicle had been traveling northbound on
                                                              State Highway 16. The car had crossed the bridge going
    Moser filed three separate motions to suppress in the
                                                              over the Pedernales River. It then drifted across the
double yellow line into the southbound lane, at which         touch. Trooper Bacon testified that the car had
time it made a hard right, side-skidded into the              overturned at least two times and that a person could
northbound ditch, and then began to overturn several          have alcohol on his person as a result of the car rolling
times.                                                        over. Trooper Bacon also admitted that while Johnson
                                                              had said the four individuals had consumed a full bottle
     Trooper Bacon then heard over the radio that
                                                              of vodka, Trooper Bacon did not know how much each
Sergeant Todd had located the other occupant and was
                                                              person drank. Trooper Bacon also said that Johnson had
returning him to the scene of the accident. W hen they
                                                              told him he, Moser, and Martinez had been stopped by a
arrived, Trooper Bacon talked to the other occupant,
                                                              Kerrville police officer before the accident, had been
Jesse Johnson. Johnson said that Moser had picked him
                                                              giving a warning, and were then allowed to leave.
up earlier in the day, along with a female friend, and they
                                                              Trooper Bacon also testified that although he arrested
had driven to another friend's house in Fredericksburg
                                                              Moser at the hospital, he left Moser at the hospital
where they consumed a bottle of vodka between [*4] the
                                                              because he had broken his leg. Thus, Trooper Bacon did
four of them. Johnson told Trooper Bacon that the
                                                              not physically take M oser into custody. Trooper Bacon
deceased, Jesus Martinez, then called Moser and told
                                                              also testified that he had not seen the dash cam footage at
Moser he could get more alcohol. Johnson and Moser left
                                                              the time he made the arrest. He did not perform a
and drove to Kerrville where they picked up Martinez.
                                                              horizontal gaze nystagmus test because Moser said he
Johnson said that they then drove to another residence in
                                                              had bumped his head during the accident. According to
Kerrville where they obtained some beer. They were all
                                                              Trooper Bacon, a person with a head injury is not a good
returning to the first residence in Fredericksburg when
                                                              candidate for the HGN test. Further, Trooper Bacon said
the crash occurred. Johnson, Moser, and Martinez were
                                                              the hospital had given Moser pain medication.
all under the age of 21.
                                                                   Thus, at the evidentiary hearing, the State elicited
     Johnson said Moser was the driver of the vehicle.
                                                              [*7]     testimony that Trooper Bacon ordered the
Johnson told Trooper Bacon that when Moser drifted
                                                              w arra ntle ss b lo o d d r a w p u r s u a n t to sec tio n
across the double yellow line, Johnson reached over and
                                                              724.012(b)(1)(A) of the Texas Transportation Code.
helped him pull the wheel back to correct the car back
                                                              Section 724.012(b)(1)(A) requires the taking of a
into the northbound lane. Johnson said M oser
                                                              nonconsensual blood specimen of a person if the person
overcorrected and the accident occurred. Trooper Bacon
                                                              is arrested for driving while intoxicated, was the operator
then asked Johnson to remove his shirt so that he could
                                                              of a motor vehicle involved in an accident that the officer
verify through the seatbelt marking of Johnson's skin
                                                              reasonably believes occurred as a result of the offense
where Johnson had been seated. Trooper Bacon testified
                                                              and, at the time of the arrest, the officer reasonably
that Johnson had an abrasion from his right shoulder
                                                              believes that as a direct result of the accident an
across to his left hip, which indicated Johnson was sitting
                                                              individual has died. See T EX . T RANSP . C O D E A NN . §
in the passenger seat. Trooper Bacon testified that he was
                                                              724.012(b)(1)(A). After hearing all the evidence, the trial
then informed Moser was about to be released from the
                                                              court denied the motions to suppress. The record does
hospital, so he stopped his interview [*5] with Johnson
                                                              not reflect that Moser requested the trial court to make
and went to the hospital.
                                                              findings of fact and conclusions of law, and no such
     W hen Trooper Bacon arrived at the hospital, Moser       findings are included in the appellate record. See State v.
was in the ER treatment room with a leg injury. Moser's       Elias, 339 S.W.3d 667, 676-77 (Tex. Crim. App. 2011)
parents and grandparents were present. Trooper Bacon          (requiring trial court to make essential findings when
identified himself to Moser, and M oser invoked his right     requested). Moser appeals.
to counsel. Trooper Bacon testified that he did not
perform any field sobriety tests on M oser because Moser      S TAN D A R D   OF   R EVIEW
was obviously injured and had received some kind of
                                                                   The trial court is the sole trier of fact at a
pain medication. Trooper Bacon testified that he detected
                                                              suppression hearing and thus evaluates witness testimony
the odor of alcohol, but said that hospital rooms typically
                                                              and credibility. Torres v. State, 182 S.W.3d 899, 902
have an alcohol smell. Trooper Bacon's best estimate was
                                                              (Tex. Crim. App. 2005). W hen we review a trial court's
that the accident occurred at 2:35 a.m. He requested a
                                                              ruling on a motion to suppress, we give great deference
blood specimen from Moser at 5:47 a.m. Moser refused
                                                              to the trial court's determination of historical facts while
to provide one. Trooper Bacon testified that he then
                                                              reviewing the trial court's application of the law de novo.
obtained an involuntary blood specimen, relying on the
                                                              Id. W hen, as here, the [*8] trial court does not make
Texas Transportation Code for authority.
                                                              findings of fact, we view the evidence in the light most
     On cross-examination, Trooper Bacon testified that       favorable to the trial court's ruling and assume the trial
Officer Moellering had said he had not smelled alcohol        court made implicit findings of fact that support its
on Moser because he was not close enough to M oser to         ruling, as long as such implicit findings are supported by
be able to detect any smell. Trooper Bacon testified that     the record. Id.
Officer Robinson said he had smelled alcohol on Moser's
                                                                   The initial burden of proof on a motion to suppress
person. According to Trooper Bacon, the beer can found
                                                              rests with the defendant, who meets this burden by
in the car still had alcohol [*6] in it and was cool to the
showing that the search or seizure occurred without a            requirement applies in this case. Instead, it argues that
warrant. Id. Then, the burden shifts to the State to prove       the Texas exclusionary rule and federal exclusionary rule
the reasonableness of the warrantless search or arrest. Id.      should not apply because the officer relied on section
                                                                 724.012 in good faith. W e, however, have already
D ISC U SSIO N                                                   rejected this argument. See McNeil, 443 S.W.3d at 303;
                                                                 Weems, 434 S.W.3d at 666-67; Fitzgerald v. State, No.
A. Motions to Suppress Blood Test Results                        04-13-00662-CR, 2014 Tex. App. LEXIS 8208, 2014 WL
                                                                 3747270, at * 2 (Tex. App.--San Antonio July 30, 2014,
     In his first issue, Moser argues the trial court erred in
                                                                 pet. filed).
denying his motions to suppress the results of the
warrantless, nonconsensual blood tests because the                    Because the State did not show that the warrantless
admission of such results violates his rights under the          blood draw was reasonable under the Fourth
Fourth Amendment to the Constitution. For support,               Amendment, Moser's motions to suppress the blood test
Moser relies on the Supreme Court's decision in Missouri         results should have been granted. After the trial court
v. McNeely, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013),           denied Moser's motions to suppress, he decided to plead
and this court's decision in Weems v. State, 434 S.W.3d          guilty. W e cannot determine beyond a reasonable doubt
655 (Tex. App.--San Antonio 2014, pet. granted). In              that the trial court's failure to grant his motions to
Weems, 434 S.W.3d at 665, we analyzed McNeely and                suppress the blood test results did not contribute in some
concluded that section 724.012(b)(3)(B) does not                 measure to the State's leverage in obtaining his guilty
constitute a valid exception to the Fourth Amendment's           plea and thus to his conviction. See T EX . R. A PP . P.
warrant requirement. See also McNeil v. State, 443               44.2(a); Kennedy v. State, 338 S.W.3d 84, 102-03 (Tex.
S.W.3d 295, 299-300 (Tex. App.--San Antonio 2014, pet.           App.--Austin 2011, no pet.). Therefore, we hold the trial
filed). Similarly, the Texas Court of Criminal Appeals           court erred in denying Moser's motions to suppress the
recently held in State v. Villarreal, No. PD-0306-14,            results of the blood tests.1
2014 Tex. Crim. App. LEXIS 1898, 2014 WL 6734178, at
*20 (Tex. Crim. App. Nov. 26, 2014), that "the provisions                1 In a third issue, Moser also argues that the
in the Transportation Code [*9] do not, taken by                         blood test results should have [*11]           been
themselves, form a constitutionally valid alternative to                 suppressed because the arresting officer had no
the Fourth Amendment warrant requirement." The court                     reasonable belief as required by section
of criminal appeals explained that "the Supreme Court's                  724.012(b) that the accident resulting in death
holding in McNeely makes clear that drawing the blood                    was caused by intoxication. Having determined
of an individual suspected of DW I falls under the                       that the trial court should have suppressed the
category of cases holding that 'a warrantless search of a                blood test results, we need not reach this issue.
person is reasonable only if it falls within a recognized
exception' to the warrant requirement." Villarreal, 2014         B. Motion to Suppress Arrest
Tex. Crim. App. LEXIS 1898, 2014 WL 6734178, at *20
                                                                      In his second issue, Moser argues that the trial court
(quoting McNeely, 133 S. Ct. at 1558) (emphasis added).
                                                                 erred in denying his motion to suppress his arrest because
The court of criminal appeals emphasized that the
                                                                 the arresting officer lacked probable cause to arrest
McNeely Court "explained that such an intrusion
                                                                 Moser for intoxication manslaughter. "Generally, a
implicates an individual's 'most personal and deep-rooted
                                                                 warrantless arrest is, pursuant to the Fourth Amendment,
expectations of privacy.'" Villarreal, 2014 Tex. Crim.
                                                                 unreasonable per se unless the arrest fits into one of a
App. LEXIS 1898, 2014 WL 6734178, at *20 (quoting
                                                                 'few specifically defined and well delineated
McNeely, 133 S. Ct. at 1558). According to the court of
                                                                 exceptions.'" Torres v. State, 182 S.W.3d 899, 901 (Tex.
criminal appeals, "[t]hese principles from McNeely--the
                                                                 Crim. App. 2005) (quoting M innesota v. Dickerson, 508
recognition of the substantial privacy interests at stake
                                                                 U.S. 366, 372, 113 S. Ct. 2130, 124 L. Ed. 2d 334
and the applicability of the traditional Fourth Amendment
                                                                 (1993)). "A peace officer may arrest an individual
framework that requires either a warrant or an applicable
                                                                 without a warrant only if probable cause exists with
exception--apply with equal force to this case."
                                                                 respect to the individual in question and the arrest falls
Villarreal, 2014 Tex. Crim. App. LEXIS 1898, 2014 WL
                                                                 within one of the exceptions set out in T EX . C O D E C RIM .
6734178, at *20. Thus, the court of criminal appeals
                                                                 P RO C . art. 14.01-14.04." Torres, 182 S.W.3d at 901.
"reject[ed] the State's assertion that a warrantless,
                                                                 Article 14.03 of the Texas Code of Criminal Procedure
nonconsensual blood draw conducted pursuant to those
                                                                 provides that a peace officer may arrest without a warrant
provisions [of the Transportation Code] can fall under
                                                                 "persons found in suspicious places and under
one of the established exceptions to the warrant
                                                                 circumstances which reasonably show that such persons
requirement." Id. The court [*10] of criminal appeals
                                                                 have been guilty of some felony, violation of Title 9,
further "reject[ed] the State's suggestion that such a
                                                                 Chapter 42, Penal Code, breach of the peace, or offense
search may be upheld under a general Fourth
                                                                 under Section 49.02, Penal Code . . . ." 2 T EX . C O D E [*12]
Amendment balancing test." Id.
                                                                 C RIM . P ROC . A NN . art. 14.03 (W est Supp. 2014).
    The State has not argued that any other recognized
exception to the Fourth Am endment's warrant                             2 Moser argues only that the officer did not have
       probable cause for the warrantless arrest.               Moser, and two others had consumed a bottle of vodka
                                                                earlier. Johnson told him that "[a]t some point during the
     "Probable cause for a warrantless arrest requires that
                                                                consumption of the bottle of vodka," the deceased called
an officer have a reasonable belief that, based on facts
                                                                Moser and said that he could obtain more alcohol. Moser
and circumstances within the arresting officer's personal
                                                                and Johnson drove from Fredericksburg to Kerrville to
knowledge, or of which the officer has reasonably
                                                                pick up the deceased, obtained beer, and were returning
tru stwo rth y in fo rm atio n, an offense has been
                                                                to Fredericksburg when the accident occurred. Johnson
committed." Torres, 182 S.W.3d at 902 (emphasis added)
                                                                said that Moser was driving the vehicle and had "drifted
(citations omitted). Thus, the arresting officer need not
                                                                over into the oncoming lane of traffic." "Johnson reached
personally observe all the facts relating to probable cause
                                                                over and grabbed the steering wheel to kind of pull them
but may rely on reasonably trustworthy information. See
                                                                back into the right lane of traffic." Moser overcorrected
id.
                                                                and the vehicle rolled. Trooper Bacon then asked
      "The test for probable cause is an objective one,         Johnson to lift his shirt to confirm that Johnson was
unrelated to the subjective beliefs of the arresting officer,   indeed the passenger of the vehicle. Trooper Bacon
and it requires a consideration of the totality of              testified Johnson had an abrasion mark from the seatbelt
circumstances facing the arresting officer." Amador v.          confirming he had been the passenger. Under these facts
State, 275 S.W.3d 872, 878 (Tex. Crim. App. 2009)               and the totality of circumstances known to Trooper
(citations omitted). "A finding of probable cause requires      Bacon, he had probable cause to arrest Moser for
'more than bare suspicion' but 'less than . . . would justify   intoxication manslaughter.
. . . conviction.'" Id. (quoting Brinegar v. United States,
                                                                      Moser emphasizes that Trooper [*15] Bacon did not
338 U.S. 160, 175, 69 S. Ct. 1302, 93 L. Ed. 1879
                                                                conduct any field sobriety tests and did not testify that
(1949)) (alteration in original). "[P]robable cause must be
                                                                Moser had slurred speech or blood shot eyes. Moser
based on facts, not opinions." Torres, 182 S.W.3d at 902.
                                                                further emphasizes that he had been stopped by another
     In support of his argument that Trooper Bacon had          officer for speeding before the accident and had only
no probable cause to arrest him in this case, Moser relies      been given a warning ticket and that the open can of beer
on Torres v. State, 182 S.W.3d at 902-03, a case in which       in the car during the roll-over accident "could account for
the court of criminal appeals held [*13] no probable            the odor on [his] person." W hile Moser emphasizes these
cause existed to arrest the appellant for driving while         facts in favor of a finding that he was not intoxicated, a
intoxicated because the arresting officer relied on other       finding of probable cause can be supported by "less than
officers' opinions that appellant was intoxicated and not       . . . would justify . . [a] conviction" and need only be
on specific, articulable facts. Here, however, Trooper          "more than bare suspicion." Brinegar v. United States,
Bacon did not rely on opinions from the other officers,         338 U.S. 160, 175, 69 S. Ct. 1302, 93 L. Ed. 1879 (1949).
but instead relied on specific facts and circumstances he       Further, under our standard of review, we must defer to
learned from reasonably trustworthy sources. W hen he           factual findings implicitly made by the trial court. See
arrived at the scene of the one-car accident, Trooper           Torres, 182 S.W.3d at 902. W e therefore hold that
Bacon was informed by other law enforcement officers            Trooper Bacon had probable cause to arrest Moser.
that M oser identified himself as the driver of the vehicle
and had been transported to the hospital. Trooper Bacon         C O N C LU SION
was also informed by an officer that the officer had
                                                                      Because Trooper Bacon had probable cause to arrest
smelled alcohol on Moser. W hen Trooper Bacon
                                                                Moser, the trial court did not err in denying Moser's
inspected the vehicle involved in the accident, he saw an
                                                                motion to suppress his arrest. However, because Moser's
open, cool, and partially full can of beer "wedged
                                                                rights under the Fourth Amendment were violated by the
between the driver's seat and the driver's floorboard
                                                                warrantless, nonconsensual blood draw, the trial court
area." Trooper Bacon then spoke with a justice of the
                                                                erred in denying Moser's motions to suppress the blood
peace, who confirmed that one of the passengers had
                                                                test results. And, Moser was harmed as a result of the
died as a result of the accident. In examining the scene,
                                                                trial court's error. W e therefore [*16] reverse the trial
Trooper Bacon determined that the vehicle involved in
                                                                court's judgment and remand this cause for a new trial.
the accident had drifted into the on-coming lane of
traffic, crossed the centerline, turned hard [*14] back             Karen Angelini, Justice
into its own lane of travel, went off the roadway, and
                                                                    Do not publish
then rolled over. Trooper Bacon then interviewed a
passenger of the vehicle, Johnson, who said that he,
