                                                                                               ACCEPTED
                                                                                           05-14-01593-CR
                                                                                FIFTH COURT OF APPEALS
                                                                                           DALLAS, TEXAS
                                                                                       5/4/2015 6:49:31 PM
                                                                                                LISA MATZ
                                                                                                    CLERK




                                                                                                                  5th Court of Appeals
                                                                                                                   FILED: 5/6/2015
                                                                                               Lisa Matz, Clerk
                  FIFTH COURT OF APPEALS
  __________________________________________________________
                        05-14-01593-CR
  __________________________________________________________


                 Jeffrey Lynn Aday, v. State of Texas
              ____________________________________
              On Appeal from Trial Court No. 2012-1-0206
              County Court At Law No. 1, Grayson County
                  Hon. James C. Henderson, Presiding

                           Appellant’s Brief


John Hunter Smith
707 W. Washington
Sherman, Texas 75092
Tel. (903)-893-8177
Fax (903)-892-0916
jsmith@wynnesmithlaw.com
Texas Bar No. 24028393


Kristin R. Brown
18208 Preston Road, Suite D9375
Dallas, Texas 75252
Phone: 214.446.3909
Fax: 214.481.4868
kbrown@idefenddfw.com                          Oral	  Argument	  is	  Requested	  
Texas Bar No. 24081458


Attorneys for Appellant
       I. Identities of the Parties and Counsel


Appellant:                        Jeffery Lynn Aday


Attorney for Appellant:           On Appeal And At Trial

                                  Mr. John Hunter Smith
                                  Wynne & Smith
                                  707 W. Washington
                                  Sherman, Texas 75092

                                  On Appeal

                                  Ms. Kristin R. Brown
                                  Law Office of Kristin R. Brown, PLLC
                                  18208 Preston Road, Suite D9375
                                  Dallas, Texas 75252


Attorneys for the State:          Ms. Karla Baugh-Hackett
                                  Mr. Matthew Rolston
                                  Grayson County District Attorney’s Office
                                  200 S. Crockett
                                  Sherman, Texas 75090

Trial Court:                      County Court At Law No. 1
                                  Grayson County, Texas
                                  Honorable James C. Henderson, Presiding




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       II. Table of Contents
I. Identities of the Parties and Counsel......................................................... 2
II. Table of Contents .................................................................................... 3
III.       Statement of the Case and Jurisdiction .................................................. 6
IV. Statement Regarding Oral Argument..................................................... 7
V. Issues Presented: ...................................................................................... 8
VI. Statement of Facts .................................................................................. 9
       1. Appellant files a motion to suppress evidence ..................................... 9
       2. Evidence presented at the hearing on Appellant’s Motion
            to Suppress ....................................................................................... 9
       3. The trial court denied the motion based on implied
            consent and exigent circumstances, and then reversed
            itself, in part, upon Appellant’s filing of a Motion to
            Reconsider after the Texas Court of Criminal Appeals
            decided Villarreal. .......................................................................... 12
VII. Summary of the Arguments ............................................................... 13
VIII.         Argument .......................................................................................... 15
1. Issue One: Under the Fourth Amendment of the United States
Constitution, the holding in Missouri v. McNeely, and the holdings of other
Texas courts of appeal, the trial court erred when it denied Appellant’s
motion to suppress the blood test results because: (1) Thomas admitted he
did not even try to obtain a warrant for Appellant’s blood; (2) there were no
exigent circumstances justifying the warrantless blood draw under Texas
Transportation Code § 724.012; (3) Thomas had no probable cause to arrest
Appellant; (4) the trial court’s decision is not correct on any theory of law
applicable to the case; (5) the good-faith exception does not apply in this
case; (6) the holding in McNeely apply to this case because this case was
pending when McNeely was handed down; and (7) Appellant was harmed
by the trial court’s error of denying the motion to suppress. ........................ 15
       i. Introduction ......................................................................................... 15
       ii. Standard of review is bifurcated based upon the abuse
             of discretion standard. .................................................................... 17
       iii. McNeely ............................................................................................ 19



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       iv. Statutes implicated by McNeely: Texas Transportation
             Code §724.012 (2012)(mandatory draw statute) and
             Texas Transportation Code § 724.011 (2012) (implied
             consent statute) ............................................................................... 24
       v. As held in Villarreal, Texas Transportation Code §§
            724.011 and 724.012 violate the Fourth Amendment
            because these statutes dispense with the Fourth
            Amendment’s warrant requirement and none of the
            exceptions to the warrant requirement apply. ................................. 28
       vi. Significance of the granting of rehearing by the Court of
             Criminal Appeals in Villarreal ....................................................... 35
       vii. Opinions of other courts of appeal confirm McNeely
             and Villarreal, and support Appellant’s arguments. ....................... 36
       viii. Under the holdings in McNeely, Villarreal, and other
             Texas courts of appeal, the trial court erred when it
             denied Appellant’s motion to suppress because: (1)
             the officer admitted he did not even try to obtain a
             warrant for Appellant’s blood; (2) there were no
             exigent circumstances justifying the warrantless
             blood draw under Texas Transportation Code §
             724.012; (3) Thomas had no probable cause to arrest
             Appellant; (4) and the trial court’s decision is not
             correct on any theory of law applicable to the case. ....................... 49
       ix. Even if Chapter 724.012(b) was constitutional, its
            requirements cannot be met. ........................................................... 58
       x. The good-faith exception does not apply in this case. ........................ 59
       xi. The holding in McNeely applies to this case because
            this case was pending when McNeely was handed
            down. .............................................................................................. 62
       xii. Appellant was harmed by the trial court’s error of
             denying the motion to suppress. .................................................... 63
       xiii. Conclusion ...................................................................................... 64
2. Issue Two: The trial court erred and Appellant was harmed when the
trial court denied Appellant the right to present the totality of the legal
evidence raising an issue of material fact, which was an element of the
offense, and, which—in turn—allowed the State to admit evidence, obtained


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in violation of the Constitutions and laws of the United States of America
and the State of Texas, against Appellant at trial. ........................................ 65
       i. Statement of Facts ............................................................................... 65
       ii. Introduction ........................................................................................ 67
       iii. Standard of Review is Abuse of Discretion ...................................... 67
       iv. Applicable Law ................................................................................. 68
       v. The trial court abused their discretion in not allowing
            material evidence—which was both relevant and
            probative to be introduced to the jury. ........................................... 68
       vi. Conclusion......................................................................................... 69
IX. Conclusion and Prayer ......................................................................... 70
X. Certificate of Service ............................................................................. 71
XI. Certificate of Compliance with Tex. Rule App. Proc. 9.4 ................... 72




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To the Honorable Justices of the Court of Appeals:

                 In support of his appeal, Appellant Jeffrey Lynn Aday submits this Brief:

        III.                      Statement of the Case and Jurisdiction
                 This case is an appeal of a Judgment of Conviction by Jury entered and

sentence imposed by County Court at Law No. 1 of Grayson County, Texas. (CR,

334-335).1 On February 9, 2012 the State filed an Information alleging that

Appellant committed the criminal offense of Driving While Intoxicated 2nd under

Texas Penal Code § 49.04 and 49.09(a) as follows: on or about September 8, 2012,

in Grayson County, Texas, Appellant did then and there operate a motor vehicle in

a public place while intoxicated, and it is further presented in and to said Court

that, prior to the commission of the aforesaid offense on the 18th day of November,

2008, in cause number 2009-1-309 in County Court at Law Number 1 of Grayson

County, Texas, the Appellant was convicted of an offense relating to the operation

of a motor vehicle while intoxicated (CR, 16).

                 Appellant filed a motion to suppress evidence, which was denied. (CR, 236).

Appellant pleaded “not guilty,” and a trial was had before a jury. (RR6, 27). On

December 18, 2014, Appellant was convicted of Driving While Intoxicated under

Texas Penal Code § 49.04. (CR, 333; RR8, 6). On the same day, Appellant plead

true to the enhancement provision of the Information, and was sentenced to 365

	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
1
            The Record on Appeal consists of the Clerk’s Record, which is one volume, and the Reporter’s



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days in the County Jail, probated for a period of 18 months; a $500.00 fine; and

$449.10 in court costs. (CR, 334-339; RR8, 20-21).

         On December 19, 2014, Appellant filed a timely notice of appeal from the

Judgment of Conviction. (CR, 342-343); See Tex. Rule App. Proc. 26.2(a) (2015).

An amended notice of appeal was timely filed on December 23, 2014. (CR, 345-

346); See Tex. Rule App. Proc. 26.2(a) (2015).              The trial court signed a

certification of Appellant’s right to an appeal, certifying that this is not a plea-

bargain case, and that Appellant has the right of appeal. (CR, 340); See Tex. Rule

App. Proc. 25.2(a)(2) (2015). As a result, this Court has jurisdiction over this

appeal.

       IV.     Statement Regarding Oral Argument
         Appellant requests oral argument. See Tex. Rule App. Proc. 39 (2015).




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       V. Issues Presented:

Issue One: Under the Fourth Amendment, the holdings in McNeely,
Villarreal, and other Texas courts of appeal, the trial court erred when it
denied Appellant’s motion to suppress the blood test results because: (1)
Thomas admitted he did not even try to obtain a warrant for Appellant’s
blood; (2) there were no exigent circumstances justifying the warrantless
blood draw under Texas Transportation Code § 724.012; (3) Thomas had no
probable cause to arrest Appellant; (4) the trial court’s decision is not correct
on any theory of law applicable to the case; (5) the good-faith exception does
not apply in this case; (6) the holding in McNeely apply to this case because
this case was pending when McNeely was handed down; and; (7) Appellant
was harmed by the trial court’s error of denying the motion to suppress.

Issue Two: The trial court erred and Appellant was harmed when the trial
court denied Appellant the right to present the totality of the legal evidence
raising an issue of material fact, which was an element of the offense, and,
which—in turn—allowed the State to admit evidence, obtained in violation of
the Constitutions and laws of the United States of America and the State of
Texas, against Appellant at trial.




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VI.            Statement of Facts
              1. Appellant files a motion to suppress evidence
               On June 10, 2013, Appellant filed a motion to suppress evidence. (CR, 101–

       105). Appellant argued that his arrest and apprehension was made without a

       warrant or probable cause, in violation of the Fourth and Fourteenth Amendments

       of the United States Constitution, and of Article 1, § 9 of the Texas Constitution.

       (CR, 101–105). Appellant also argued that the search of Appellant’s person was

       without probable cause, without a warrant, and without exigent circumstances.

       (CR 101–105). An amended motion was filed on September 13, 2013. (CR, 139–

       44).

              2. Evidence presented at the hearing on Appellant’s Motion to Suppress
               The following evidence was presented at the hearing on the motion to

suppress evidence on August 5, 2014: this was a warrantless arrest. (RR2, 4). On

September 8, 2011, at 9:54 p.m., Denison Fire Department (“DFD”) was

dispatched to FM 691 and Pool Road in response to a Motorcycle accident. (RR2,

24, 31). Trooper Shannon Thomas (“Thomas”) of the Texas Department of Public

Safety arrived on scene at 10:12 p.m. (RR2, 66). When Thomas arrived Appellant

had left the scene by ambulance for Texoma Medical Center (“TMC”). (RR2, 42).

Trooper Jim Bob Walters arrived on scene shortly thereafter and assisted Thomas

with the situation on scene.           (RR2, 66–67).      There were no bottles, cans, or

alcoholic beverages found at the scene. (RR2, 67). No person at the scene reported

                                           Page 9 of 72
	  
suspected alcohol use or the odor of alcohol on Appellant. (RR2, 67–68). Upon

arrival to the scene, DFD emergency personnel informed Thomas that Appellant

would probably be care-flighted, as he had sustained a traumatic head injury.

(RR2, 68). Thomas did not immediately go to the hospital, but rather stayed at the

scene until it was clear. (RR2, 46).         Thomas arrived at the hospital at

approximately 11:00 p.m. (RR2, 62, 69). Upon arrival, TMC emergency room

staff informed Thomas that Appellant would be care-flighted. (RR2, 49). Thomas

did not immediately go into Appellant’s room, but rather waited approximately

20–25 minutes in the waiting area until family cleared Appellant’s room. (RR2,

73, 74). Thomas did not request family be cleared from the room. (RR2, 74).

Thomas enters Appellant’s room at approximately 11:25 p.m. (RR2, 73, 74).

Appellant is unconscious and non-responsive, unable to communicate with

Thomas. (RR2, 50, 57, 60). Thomas inspects Appellant for the “smell of any

alcoholic beverage, marijuana, anything like that” because these are “a very

common contributor to crashes.” (RR2, 53). Thomas believes he smells an odor

of alcohol. (RR2, 53). Thomas leaves the room, and the hospital, and goes out to

his car. (RR2, 76). Thomas retrieves a DIC-24 form, a blood kit, and other

paperwork. (RR2, 76–77). Thomas goes back to Appellant’s ER room at TMC.

(RR2, 78). Somewhere between 11:27 and 11:32 p.m., Thomas reads Appellant

the DIC 24. (RR2, 79). Appellant does not respond. (RR2, 60). Trooper Thomas


                                   Page 10 of 72
	  
directs hospital personnel to draw Appellant’s blood. (RR2, 84). Approximately

five minutes later, at 11:37 p.m., Appellant’s blood is drawn.            (RR2, 84).

Appellant did not consent to the blood draw, nor did he refuse the blood draw.

(RR2, 57, 60). Thomas made absolutely no effort to get a warrant for appellant’s

blood. (RR2, 81–83). Thomas did not even consider getting a warrant. (RR2, 82).

Thomas believed that he did not need a warrant because Texas Transportation

Code 724.011 and 724.014 provided for the taking of a blood specimen under

“Implied Consent” (RR2, 81). Implied consent was Thomas’s sole reliance for the

warrantless taking of Appellant’s blood. (RR2, 81). The Defense attorney and

Thomas had the following exchange:

       Q. And your reliance in getting the blood on this night was implied consent?

       A. Yes sir, just under the implied consent.

       Q. Implied consent, period?

       A. When they are unconscious, yes sir.

(RR2, 81). As to exigent circumstances, Thomas stated that when “[he] was

notified that care flight would be - - [he] felt like my time was very limited at that

point.” (RR 2, 83, 86). Thomas was notified of care flight at 10:12 p.m. and at

11:00 p.m. (RR2, 49, 68).

       Thomas has investigated over 600 DWI arrests. (RR2, 36). But, Thomas

has only sought blood warrants in 10-12 instances. (RR2, 36–37). Warrants are


                                     Page 11 of 72
	  
gained through fax or hand-delivery of a probable cause affidavit to the judge.

(RR2, 37). The judge will typically sign the warrant and return it to the officer.

(RR2, 37). A warrant can be gained in as little as 30-45 minutes, calculated from

the time of the refusal to the time of the draw. (RR2, 38). Thomas made no

effort—zero—to gain a warrant for Appellant’s blood, because he did not believe

he needed one. (RR2, 81–83).

       3. The trial court denied the motion based on implied consent and
          exigent circumstances, and then reversed itself, in part, upon
          Appellant’s filing of a Motion to Reconsider after the Texas Court of
          Criminal Appeals decided Villarreal.

        The trial court concluded that based upon the law that the court

believes existed at the time of the hearing and rulings of the Texas Court of

Criminal Appeals, the Appellant’s motion to suppress the blood evidence should

be denied based on exigent circumstances and implied consent under Tex. Trans.

Code §§ 724.011, 724.014, and in fact denied the motion to suppress. (CR, 236).

        After the decision was handed down by the Court of Criminal Appeals in

Villarreal, Appellant filed a Motion to Reconsider the previously denied Motion

to Suppress. (CR, 245–251). The trial court, at the December 12, 2014, pre-trial

hearing, announced that the Motion to Reconsider would be granted in part and

denied in part. (RR4, 5–8). The court went on to rule that, based on the Court of

Criminal Appeals ruling in Villarreal, the “alternative grounds” upon which the


                                   Page 12 of 72
	  
court had previously denied the motion to suppress [Implied Consent under Tex.

Trans. Code §§724.011, 724.014] could no longer be relied on and, therefore, the

court granted the motion to suppress—but only as to implied consent. (RR4, 7–8).

However, the court held, the Motion to Reconsider would be denied as to the

“previous ruling that the warrantless blood draw did not violate [Appellant’s]

constitutional right [sic] under the Fourth Amendment due to exigent

circumstances. (RR4, 7). Appellant requested the court clarify on what grounds

the court based its finding of exigent circumstances. (RR4, 8). The court stated

“it was covered in the previous hearing [what those grounds were] and “I’ll put it

in Findings of Fact and Conclusions of Law if that becomes necessary after the

trial.” Id. (see CR 354 at ¶ 28).

VII. Summary of the Arguments
       Appellant presents the following arguments in this Brief:

Issue 1: under the Fourth Amendment of the United States Constitution, the

holdings in McNeely, Villarreal, and other Texas courts of appeal, the trial

court erred when it denied Appellant’s motion to suppress the blood test results

because: (1) Thomas admitted he did not even try to obtain a warrant for Appellant’s

blood; (2) there were no exigent circumstances justifying the warrantless blood draw

under Texas Transportation Code § 724.012; (3) Thomas had no probable cause to

arrest Appellant; (4) the trial court’s decision is not correct on any theory of law


                                    Page 13 of 72
	  
applicable to the case; (5) the good-faith exception does not apply in this case; (6) the

holding in McNeely apply to this case because this case was pending when McNeely

was handed down; and; (7) Appellant was harmed by the trial court’s error of denying

the motion to suppress.

Issue Two: The trial court erred and Appellant was harmed when the trial court denied

Appellant the right to present the totality of the legal evidence raising an issue of

material fact, which was an element of the offense, and, which—in turn—allowed the

State to admit evidence, obtained in violation of the Constitutions and laws of the

United States of America and the State of Texas, against Appellant at trial.

       Appellant will ask this Court to reverse the Judgment of Conviction and

Sentence—(Jury Trial), suppress all the evidence seized from Appellant, including

the blood results and all evidence due to the illegal arrest, and remand this case

back to the trial court for a new trial.




                                      Page 14 of 72
	  
VIII. Argument
            1. Issue One: Under the Fourth Amendment of the United
               States Constitution, the holding in Missouri v. McNeely, and
               the holdings of other Texas courts of appeal, the trial court
               erred when it denied Appellant’s motion to suppress the
               blood test results because: (1) Thomas admitted he did not
               even try to obtain a warrant for Appellant’s blood; (2) there
               were no exigent circumstances justifying the warrantless
               blood draw under Texas Transportation Code § 724.012; (3)
               Thomas had no probable cause to arrest Appellant; (4) the
               trial court’s decision is not correct on any theory of law
               applicable to the case; (5) the good-faith exception does not
               apply in this case; (6) the holding in McNeely apply to this
               case because this case was pending when McNeely was handed
               down; and (7) Appellant was harmed by the trial court’s
               error of denying the motion to suppress.

               i. Introduction
             This case is a “textbook” McNeely/Villarreal case that should be

       reversed and remanded for a new trial. Although the evidence presented

       at the hearing on Appellant’s motion to suppress clearly showed that the

       only reason why Thomas failed to obtain a warrant for Appellant’s blood

       is because: (1) Thomas believed that implied consent allowed for him to

       take a sample without a warrant, (2) Thomas reasoned that the BAC of

       Appellant’s blood was dissipating, and (3) Thomas admitted that he did not

       even bother to try to obtain a warrant for the blood draw. In its FFCL,

       the trial court clearly erred by concluding that Trooper Thomas did not

       even need to attempt to secure a warrant because he could not have


                                         Page 15 of 72
	  
       reasonably expected to obtain one without impeding the defendant’s

       medical treatment.

             Appellant will argue that the rulings in McNeely, Villarreal, and

       the other Texas courts of appeal should cause this Court to conclude that

       the trial court erred when it denied Appellant’s motion to suppress.

       Appellant will begin by analyzing McNeely, Villarreal, and the opinions

       of several other Texas courts of appeal. Appellant will then apply the

       relevant law to the facts of this case.

             Appellant also represents that he groups several closely-related

       arguments under one point of error. Listing several distinctly different

       arguments under one point of error, rather than separately listing them,

       may be considered multifarious. Burton v. State, 471 S.W.2d 817, 820-

       821 (Tex. Crim. App. 1971); Woodard v. State, 696 S.W.2d 622, 625

       (Tex. App. Dallas 1985, no pet.) (A multifarious argument is a ground

       of error complaining of more than one incident of improper argument).

       However, the holdings in Burton and Woodard do not mean that an

       appellant is unable to make more than one similarly-related argument in

       a single point of error concerning the same overall issue. In Yuhl v. State,

       784 S.W.2d 714, 716 (Tex. App. Houston [14th Dist.] 1990, pet. ref.), the

       court of appeals expressed doubt the rule that prohibits multifarious points


                                            Page 16 of 72
	  
       of error prevents an appellant from making more than one similarly-related

       argument in a single point of error. In fact, an appellate court may

       consider several closely-related issues, even if “multifarious,” if it is able

       adequately to distinguish the separate contentions from each other. Bright

       v. State, 556 S.W.2d 317, 319 (Tex. Crim. App. 1977). Thus, the rule

       prohibiting multifarious arguments merely frowns upon combining more

       than one legal theory in a single point of error. See Thomas v. State, 723

       S.W.2d 696, 697 n.2 (Tex. Crim. App. 1986).

             Because all of the following arguments pertain to Appellant’s

       assertion that the trial court erred and abused its discretion when it denied

       Appellant’s motion to suppress, rather than break down this issue into

       numerous points of error, which will cause this Brief to spill over the

       word-limit and will require repetitive arguments             on   the   same

       contentions, Appellant presents his arguments under a single issue.

                ii. Standard of review is bifurcated based upon the abuse of
                    discretion standard.
             In reviewing the trial court’s ruling on Appellant’s motion to

       suppress, this court should apply a bifurcated standard of review: almost

       total deference is given to a trial court’s determination of historical facts,

       but an appellate court reviews de novo the trial court’s application of the

       law to those facts. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim.

                                           Page 17 of 72
	  
       App. 2000); Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App.

       2007).      This review is based upon the abuse of discretion standard.

       Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002);

       Montanez v. State, 195 S.W.3d 101, 108-109 (Tex. Crim. App. 2006).

       When the trial court’s ruling is an application of the law to undisputed

       facts that do not turn on a question of credibility, this Court’s review is de

       novo. See Wilson v. State, 311 S.W.3d 452, 458 (Tex. Crim. App. 2010);

       St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007)

       (Almost total deference is given to a trial court’s determination of the

       historical facts that the record supports especially when the trial court’s

       factual findings are based on an evaluation of credibility and

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

                Further, this court should give deference to the historical facts

       contained in the FFCL of the trial court if the findings are supported by

       the record. See Ervin v. State, 333 S.W.3d 187, 212 (Tex. App. Houston

       [1st Dist.] 2010); State v. Cullen, 195 S.W.3d 696, 698 (Tex. Crim. App.

       2006) (Court rejected de novo review of historical facts because trial

       court in best position to judge credibility and demeanor of witnesses at

       suppression hearing).




                                           Page 18 of 72
	  
               iii. McNeely
             In Missouri v. McNeely, 133 S.Ct. 1552 (2013), the Supreme

       Court mandated that when the state seeks to extract a blood or breath

       specimen from a DWI suspect, a warrant is generally required. The

       Court ruled that the natural metabolization of alcohol in the bloodstream

       does not represent a per se exigency that justifies an exception to the

       Fourth Amendment’s warrant requirement for nonconsensual blood

       testing in all DWI cases. Id. at 1568.

             The facts of McNeely are as follows: the defendant is stopped by

       the police for speeding and crossing the centerline. Id. at 1553-1554.

       After refusing to take a breath test to measure his blood alcohol

       concentration (BAC), the defendant is arrested and taken to a nearby

       hospital for a blood draw. Id. at 1554. The officer never attempts to

       secure a search warrant. Id. The defendant refuses to consent to the blood

       test, but the officer nonetheless orders a lab technician to take a sample

       of the defendant’s blood. Id. The defendant’s BAC tests well above the

       legal limit, and he is charged with DWI. Id.

             The defendant files a motion to suppress the blood evidence,

       which is granted. Id. at 1554. The trial court held that the exigency

       exception to the warrant requirement did not apply because, other


                                           Page 19 of 72
	  
       than the fact that McNeely’s blood alcohol was dissipating, there was

       no emergency. Id. (emphasis added). Relying upon Schmerber v.

       California, 384 U.S. 757, 770 (1966), in which the Supreme Court

       upheld a DWI suspect’s warrantless blood test where the officer “might

       reasonably have believed that he was confronted with an emergency, and

       in which under the circumstances, the delay necessary to obtain a warrant

       threatened the destruction of evidence,” the Missouri Supreme Court

       affirms. Id.; see State v. McNeely, 358 S.W.3d 65, 74-75 (Mo. 2012).

             The Supreme Court affirmed the ruling of the Missouri Supreme

       Court. In describing the exigent circumstances exception to the Fourth

       Amendment warrant requirement, the Supreme Court held that the

       exigent circumstances exception applies where “the exigencies of the

       situation make the needs of law enforcement so compelling that a

       warrantless   search    is   objectively    reasonable   under    the   Fourth

       Amendment.” McNeely, id. at 1558, quoting Kentucky v. King, 131 S.

       Ct.   1849,   1856     (2011).   While     acknowledging    its   holding   in

       Schmerber that “[E]xigent circumstances justifying a warrantless blood

       draw may arise in the regular course of law enforcement due to delays

       from the warrant application process” (emphasis added), the Court

       held that “[T]he natural dissipation of alcohol in the bloodstream does

                                           Page 20 of 72
	  
       not constitute an exigency in every case sufficient to justify

       conducting a blood test without a warrant.” Id. at 1563, 1568.

             McNeely is in part based upon the fundamental principle that

       under the Fourth Amendment, a warrantless search of the person is

       reasonable only if it falls within a recognized exception, and the

       involuntary taking of blood samples, which involve a “compelled

       physical intrusion beneath the subject’s skin and into his veins” to

       obtain a sample of his blood for use as evidence in a criminal

       investigation amounts to an invasion of “bodily integrity” that

       “implicates an individual’s most personal and deep-rooted expectations

       of privacy. Id. at 1558. The Court further held that the mere fact that

       motorists are allowed less privacy because of the compelling

       governmental need for regulation does not diminish a motorist’s privacy

       interest in preventing an agent of the government from piercing his skin.

       Id. at 1565

             In placing a limitation on the common fallback argument of

       “exigent circumstances” that the state often uses to justify warrantless

       searches, the Court not only clarified what constitutes “exigent

       circumstances,” but also concluded that a per se rule of exigency based

       on the natural dissipation of alcohol is inappropriate because it would

                                          Page 21 of 72
	  
       apply the exception in circumstances that are inconsistent with the policy

       justifications that make a warrantless search based on an exigency

       reasonable. Id. at 1560-1563. And to determine whether the police face

       an emergency that justifies acting without a warrant, a court must look at

       the totality of circumstances based upon each case’s own facts and

       circumstances. Id. at 1559. This includes determining whether the

       warrantless blood test of a DWI suspect is reasonable. Id. at 1563.

             The Court held that in DWI cases where officers can reasonably

       obtain a warrant before a blood draw is done, the Fourth

       Amendment mandates that they do so. Id. at 1561 (emphasis added).

       Although exigent circumstances justifying a warrantless blood draw may

       arise in the regular course of law enforcement due to delays from the

       warrant application process, the mere “the natural dissipation of alcohol

       in the bloodstream does not constitute an exigency in every case sufficient

       to justify conducting a blood test without a warrant.” Id. at 1563, 1568.

             This language differentiates the situation in McNeely, where “BAC

       evidence from a DWI suspect naturally dissipates over time in a

       gradual and relatively predictable manner,” from the situation where a

       suspect “has control over easily disposable evidence.” The language

       also makes clear that there is a difference between a substantial delay in

                                         Page 22 of 72
	  
       the warrant application process that may result in all the BAC in a

       suspect’s blood from dissipating versus a short delay or no delay at all in

       the warrant application process.

             In other words, if an officer is unable to obtain a warrant for over

       24 hours due to a delay in the warrant application process, and as a result,

       all the alcohol in the suspect’s blood may dissipate during the delay, a

       warrantless blood draw could be reasonable. But where there is little delay

       in the warrant application process, or as in Appellant’s case, where

       Thomas did not even try to obtain a warrant and less than ten to fifteen

       minutes passed between the arrest and the warrantless blood draw, the

       Fourth Amendment mandates that the officer obtain a warrant before

       drawing blood.

             As a result, the fact that alcohol rapidly dissipates from the

       bloodstream does not create a per se exigent circumstance. Id. at 1562.

       Instead, the dissipation of alcohol may be a factor, among others, in the

       exigency analysis under the larger totality of the circumstances test. Id. A

       trial court should conduct a “careful case- by-case assessment of

       exigency and . . . [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,

                                          Page 23 of 72
	  
       the Fourth Amendment mandates that they do so.” Id. at 1561.

             McNeely reinforces the basic principle that absent one of the

       generally- accepted exceptions (i.e., consensual searches, certain brief

       investigatory stops, searches incident to a valid arrest, plain-view

       doctrine, exigent circumstances); the Fourth Amendment requires a

       warrant. And, the natural dissipation of alcohol in the bloodstream is

       not by itself one of the accepted exceptions to the warrant

       requirement. This holding is logical because unless a DWI suspect has

       immediate access to blood transfusion apparatus, enabling the suspect

       (while under arrest) to lower his or her BAC by removing the tainted blood

       from his or her system and replacing it with blood untainted with

       alcohol, it is impossible for a DWI suspect to “dispose of the evidence” in

       a DWI case (i.e., the blood flowing through his or her veins). Absent this

       far-fetched scenario, McNeely holds that if the state wants a sample of the

       suspect’s blood, and there is little to no delay in the warrant application

       process, the state must obtain a warrant.

               iv. Statutes implicated by McNeely: Texas Transportation
                   Code §724.012 (2012)(mandatory draw statute) and Texas
                   Transportation Code § 724.011 (2012) (implied consent
                   statute)
             Although the implied consent statute (Texas Transportation Code §

       724.011) was not directly implicated in this case, considering the trial

                                         Page 24 of 72
	  
       courts decision on Appellant’s Motion to Reconsider Denial of

       Defendant’s Motion to Suppress Evidence, Appellant will review its

       possible applicability should this Court apply the so-called “Calloway

       rule,” which allows this Court to affirm the trial court’s decision based on

       any theory of law applicable to the case. See Calloway v. State, 743

       S.W.2d 645, 651-652 (Tex. Crim. App. 1988) (An intermediate appellate

       court should reject an appellant’s claim of reversible error on direct

       appeal so long as the trial court correctly rejected it “on any theory of

       law applicable to the case,” even if the trial court did not purport to rely

       on that theory.). Under the “Calloway rule,” the prevailing party in the

       trial court need not have explicitly raised that alternative theory in the

       court below to justify the appellate court’s rejection of the appellant’s

       claim. Id., see also State v. Esparza, 413 S.W.3d 81, 86-88 (Tex. Crim.

       App. 2012). Texas Transportation Code § 724.011, the implied consent

       statute, provides as follows:

             (a) If a person 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, or a
             watercraft, while intoxicated, or an offense under Alco.
             Bev. Code § 106.041 (DUI by minor), the person is deemed
             to have consented, subject to this chapter, to submit to
             the taking of one or more specimens of the person’s
             breath or blood for analysis to determine the alcohol
             concentration or the presence in the person’s body of a
             controlled substance, drug, dangerous drug, or other
                                          Page 25 of 72
	  
             substance.

             (b) A person arrested for an offense described by Subsection
             (a) may consent to submit to the taking of any other type
             of specimen to determine the person’s alcohol concentration.

       Tex. Transp. Code § 724.011 (2012) (emphases added).

             The statute directly implicated in this case, Texas Transportation

       Code § 724.012, the “mandatory draw statute,” provides as follows

       (emphases added):

             (a) One or more specimens of a person’s breath or blood may be
             taken if the person is arrested and at the request of a peace officer
             having reasonable grounds to believe the person:

                   (1) while intoxicated was operating a motor vehicle in a
                   public place, or a watercraft; or

                   (2) was in violation of Alco. Bev. Code § 106.041 (DUI by
                       minor).

             (b) A peace officer shall require the taking of a specimen of the
             person’s breath or blood under any of the following
             circumstances if the officer arrests the person for an offense
             under Tex. Pen. Code Chapter 49 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:
                    (1) 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:

                          (A) any individual has died or will die;
                          (B) an individual other than the person has suffered

                                          Page 26 of 72
	  
                              serious bodily injury; or
                           (C) an individual other than the person has suffered
                              bodily injury and been transported to a hospital
                              or other medical facility for medical treatment;

                      (2) the offense for which the officer arrests the person is an
                      offense under Tex. Pen. Code § 49.045 (DWI with child
                      passenger); or
                      (3) at the time of the arrest, the officer possesses or
                      receives reliable information from a credible source that the
                      person:

                            (A) has been previously convicted of or placed on
                            community supervision for an offense under Tex. Pen.
                            Code
                            § 49.045 (DWI with child passenger), § 49.07
                            (Intoxication Assault), or § 49.08 (Intoxication
                            Manslaughter), or an offense under the laws of
                            another state containing elements substantially
                            similar to the elements of an offense under those
                            sections; or

                            (B) on two or more occasions has been previously
                            convicted of or placed on community supervision for
                            an offense under Tex. Pen. Code § 49.04 (DWI), §
                            49.05 (FWI), § 49.06 (BWI), or § 49.065
                            (Assembling/Operating Amusement Ride), or an
                            offense under the laws of another state containing
                            elements substantially similar to the elements of an
                            offense under those sections.

                (c) The peace officer shall designate the type of specimen to be
       taken.

             (d) In this section, “bodily injury” and “serious bodily injury”
             have the meanings assigned by Tex. Pen. Code § 1.07

       Tex. Transp. Code § 724.012 (2012). “Bodily injury” means physical pain,


                                            Page 27 of 72
	  
       illness, or any impairment of physical condition. Tex. Pen. Code §

       1.07(a)(8) (2012). “Serious bodily injury” means bodily injury that

       creates a substantial risk of death or that causes death, serious permanent

       disfigurement, or protracted loss or impairment of the function of any

       bodily member or organ. Tex. Pen. Code § 1.07(a)(46) (2012).

            Regardless of whether an exception to the warrant requirement

described above exists, both Texas Transportation Code §§ 724.011 and

724.012 allow law enforcement to draw blood without a warrant. No

mention of the requirement of exigent circumstances exists in the statutes.

As the McNeely analysis above shows and the following analysis will

show, Texas Transportation Code §§ 724.011 and 724.012 violate the

Fourth Amendment and are unconstitutional.

               v. As held in Villarreal, Texas Transportation Code §§
                  724.011 and 724.012 violate the Fourth Amendment because
                  these statutes dispense with the Fourth Amendment’s
                  warrant requirement and none of the exceptions to the
                  warrant requirement apply.

            In this subsection, Appellant will analyze Villarreal, which

although is pending rehearing, settled this issue in Texas.           See State v.

Villarreal, ___ S.W.3d ___ , 13-13-00253-CR, 2014 Tex. App. LEXIS

645 (Tex. App. Corpus Christi, January 23, 2014), affirmed, State v.

Villarreal, Tex. Crim. App. LEXIS 1898 (Tex. Crim. App. 2014, reh.

                                         Page 28 of 72
	  
granted). In Villarreal, the defendant is arrested for DWI. Villarreal, 13-

13-00253-CR, id. at *2. The defendant had three prior DWI convictions, so

Texas Transportation Code § 724.012(b)(3)(B) was implicated, which

allows a mandatory blood draw if “[O]n two or more occasions, [the

defendant] has been previously convicted of or placed on community

supervision for an offense under Tex. Pen. Code § 49.04 (DWI).... Tex.

Transp. Code § 724.012(b)(3)(B) (2012).             The defendant refuses all

SFSTs and the requested blood draw. Id. at *2-3. The state concedes that

there were no exigent circumstances. Id. at *3. The defendant is forced to

submit to a warrantless blood draw. Id. The BAC of the defendant’s blood

was over the legal limit, so the defendant is charged with felony DWI. Id.

The trial court grants Appellant’s motion to suppress, finding that the

officer’s own testimony shows that that he “could have gotten a warrant

for the blood draw and there were no exigent circumstances that would have

prevented him from getting a warrant.” Id. at *4.

       The court of appeals cites McNeely, 133 S.Ct. 1552, and affirms that

in DWI cases where 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 *33.

In Villarreal, the officer’s sole basis for not getting a warrant was that the


                                    Page 29 of 72
	  
repeat offender provision of the mandatory blood draw law required him

to take a blood sample without the defendant’s consent and without the

necessity of obtaining a search warrant. Id. The court of appeals held that

although Texas Transportation Code § 724.012(b)(3)(B) requires an

officer to obtain a breath or blood sample, it does not require the officer

to obtain a breath or blood sample without first obtaining a warrant. Id.

at *34 (emphases added); See Tex. Transp. Code § 724.012(b)(3)(B)

(2012). The court of appeals also found that Texas Transportation Code §

724.012(b)(3)(B) “. . . does not address or purport to dispense with the

Fourth Amendment’s warrant requirement for blood draws.” Id. at *34.

       The court of appeals concludes, “[G]iven the absence of a

warrant, the absence of exigent circumstances, and the absence of

consent, we agree with the trial court’s conclusion that the State failed to

demonstrate that the involuntary blood draw was reasonable under the

Fourth Amendment or that an exception to the Fourth Amendment’s

warrant requirement is applicable to this case, as was its burden.” Id.,

citing U.S. Const. Amend. IV.

       On November 26, 2014, the Court of Criminal Appeals settled the

issues before this Court and affirmed Villarreal. In State v. Villarreal, PD-

0306-14, 2014 Tex. Crim. App. LEXIS 1898 (Tex. Crim. App. 2014),

                                   Page 30 of 72
	  
the Court of Criminal Appeals held that a nonconsensual search of a

DWI suspect’s blood conducted under the mandatory-blood-draw and

implied-consent provisions in the Texas Transportation Code, when

undertaken in the absence of a warrant or any applicable exception to the

warrant requirement, violates the Fourth Amendment. Villarreal, PD-0306-

14, id. at *79. The majority opinion of the Court of Criminal Appeals is

lengthy, so Appellant will address the most relevant parts here.

       The opinion centers on the Transportation Code’s implied-consent

provision, mandatory-blood-draw provision, and McNeely. As the Court

writes, and like in Appellant’s case, “the State relies upon (§§ 724.011 and

724.012) as constituting a valid substitute for a warrant...” Id. at *19. Of

particular importance to Appellant’s case, after the trial court’s

reconsideration of the Appellant’s Amended Motion to Suppress is §

724.012(b), which coerces a defendant to provide a specimen if “...the

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

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

officer’s request to submit to the taking of a specimen voluntarily; the

person was the operator of a motor vehicle . . . 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 any


                                     Page 31 of 72
	  
individual has died or will die . . . . ” Id. at *22-23.

       The Court begins with a review of basic Fourth Amendment law,

which provides that to comply with the Fourth Amendment, a search of a

person who is subject to a criminal investigation: (1) requires a search

warrant or a recognized exception to the warrant requirement, and (2) must

be reasonable under the totality of the circumstances. Id. at *24. And, “of

particular relevance to DWI cases... the Fourth Amendment is implicated

in that (3) the collection of a suspect’s blood invades a substantial privacy

interest, and (4) the exigent circumstances exception to the search-warrant

requirement is not established merely by the natural dissipation of

alcohol.” Id. The Court also emphasizes the requirement of search

warrants unless the “search of the person falls within a recognized

exception” to the warrant requirement.” Id. at *25-26, citing U.S. Const.

Amend. IV; Riley v. California, 134 S. Ct. 2473, 2482 (2014) and Brigham

City v. Stuart, 547 U.S. 398,

403 (2006); McNeely, 133 S. Ct. at 1558.

       Next, the Court discusses that the reasonableness of a search must be

considered under the totality of the circumstances.        Id. at *27; citing

Samson v. California, 547 U.S. 843, 848 (2006) and Brigham City, 547

U.S. at 406. And “[G]iven this totality-of-the-circumstances approach,

                                       Page 32 of 72
	  
for the most part, ‘per se rules are inappropriate in the Fourth

Amendment context.’” Id. at *27; citing United States v. Drayton, 536

U.S. 194, 201 (2002). The implied-consent and mandatory-blood-draw

provisions of the Texas Transportation Code are “per se rules” that

violate the Fourth Amendment.

         The Court of Criminal Appeals continues by noting that the

collection of a person’s blood invades a substantial privacy interest

because it “plainly involves the broadly conceived reach of a search and

seizure under the Fourth Amendment...” due to “the interest in human

dignity and privacy which the Fourth Amendment protects.” Id. at *27-28;

citing Schmerber v. California, 384 U.S. 757, 767-770 (1966). And,

“...the need to secure a warrant from a “neutral and detached magistrate”

before permitting a law-enforcement officer to “invade another’s body in

search of evidence of guilt is indisputable and great.” Id. at *28, citing

Schmerber, id. at 770. Although the Supreme Court upheld the warrantless

search of Schmerber’s blood, it did so on the basis of exigent circumstances.

Id. at

*28, citing Schmerber, id. at 770-772.

         The question thus is whether the mere natural dissipation of

alcohol in a defendant’s blood constitutes exigent circumstances. Based

                                    Page 33 of 72
	  
upon the Supreme Court’s ruling in McNeely, the Court of Criminal

Appeals held that it does not. Id. at *29-50. As the Court notes, the

Supreme Court held that “the natural dissipation of alcohol does not

constitute a per se exigency,” and “consistent with general Fourth

Amendment principles, exigency in this context must be determined case by

case based on the totality of the circumstances.” Id. at *29-30; citing

McNeely, id. at 1557. As Appellant argues in this Brief, under the totality

of the circumstances, the natural dissipation of alcohol combined with the

fact that Thomas admitted that he did not even bother to attempt to obtain a

warrant renders the blood draw in Appellant’s case unconstitutional under

the Fourth Amendment and McNeely.

        The Court of Criminal Appeals rejects all of the State’s arguments

under: (1) the consent exception, applicable in the form of a prior waiver

through implied consent, (2) the automobile exception, (3) the special-

needs     exception,   (4)   the   search-incident-to-arrest   exception,   or,

alternatively, (5) by treating a blood draw as a seizure instead of a search.

Id. at *31-50. In rejecting the State’s arguments, the Court held that a

nonconsensual search of a DWI suspect’s blood conducted under the

mandatory-blood-draw         and   implied-consent     provisions    in     the

Transportation Code, when undertaken in the absence of a warrant or any

                                     Page 34 of 72
	  
applicable exception to the warrant requirement, violates the Fourth

Amendment. Id. at *79.

         vi. Significance of the granting of rehearing by the Court of
             Criminal Appeals in Villarreal
       Although the Court of Criminal Appeals granted rehearing in

Villarreal, it is clear that if the Court were to find Texas Transportation

Code § 724.012 (mandatory draw statute) or Texas Transportation Code §

724.011 (implied consent statute) to be exceptions to the warrant

requirement, the Court would clearly violate the Supreme Court’s

opinion in McNeely. McNeely held that the natural dissipation of alcohol

is not a per se exigent circumstance. And, it is unlikely the Supreme

Court would have granted certiorari if the majority did not believe the

warrant requirement to be critical. Further, because of the summary grant

and vacatur in Aviles, Appellant contemplates that the Court of Criminal

Appeals will again hold that both Texas Transportation Code § 724.012

(mandatory draw statute) and the Texas Transportation Code § 724.011

(implied consent statute) violate the Fourth Amendment.

       It should also be noted that McNeely is the law until the Supreme

Court overrules it. In Thurston Motor Lines, Inc. v. Jordan K. Rand, Ltd.,

460 U.S. 533, 535 (1983), the United States Supreme Court ruled that

“...only this Court may overrule one of its precedents.” The issue in

                                   Page 35 of 72
	  
Thurston Motor Lines was that the 9th Circuit was unclear whether the

holding in a prior Supreme Court case in “…is still good law.” Id. The

Supreme Court held that until it overrules one of its precedents, any of

its prior holdings “…is the law.” Id. Thus, only the Supreme Court may

overrule McNeely.

         vii.    Opinions of other courts of appeal confirm
             McNeely and Villarreal, and support Appellant’s arguments.
       Next, in Weems v. State, 434 S.W.3d 655 (Tex. App. San Antonio

2014), at about 11:30 p.m., a car accident occurs. Id. at 658. The driver

(Weems), who had been drinking, flees the scene, and is found a quarter

mile from the crash site hiding underneath a vehicle. Id. Weems has

cuts, scrapes, and bruises consistent with the crash. A “strong odor of

alcohol emanated from his (Weems’s) breath.” Id. Weems has “bloodshot

eyes.” The passenger is transported to the hospital by ambulance. Id.

After being read the DIC-24 form, Weems refuses to provide a breath

or blood specimen. No SFSTs were performed because Weems was

involved in a car crash and complained of back and neck pains. Id.

Because of his medical complaints, Weems was transported to the

hospital, and about three hours after the crash, a warrantless “mandatory”

blood draw is taken at 2:30 a.m. Id. Weems’s BAC is measured to be

0.18, well above the legal limit of 0.08.   Expert testimony shows that an

                                   Page 36 of 72
	  
average person eliminates alcohol at about 0.02 grams per deciliter per

hour. Id. Therefore, a person who had a BAC of 0.18 at 2:30 a.m. and did

not drink any additional alcohol would have had a BAC 0.24 at 11:30

p.m. Id. As a result, it was estimated that Weems probably consumed

about twelve drinks before he drove that evening immediately prior to the

accident. Id.

            The officer testified that the reason he caused a warrantless blood

draw from Weems was because Weems drove a car involved in a crash that

injured a passenger, thus implicating Texas Transportation Code §

724.012(b)(1)(C). Id.; see Tex. Transp. Code § 724.012(b)(1)(C) (2012).

Weems is convicted of DWI.

             Agreeing with the Thirteenth Court of Appeals in Villarreal, and

       the Seventh Court of Appeals in Sutherland v. State, 436 S.W.3d 28, 29-

       31 (Tex. App. Amarillo 2014, reh. overruled), the Fourth Court of

       Appeals recognized that the implied consent statute [Tex. Transp.

       Code § 724.011 (2012)] and the mandatory blood draw statute [Tex.

       Transp. Code § 724.012 (2012)] are not exceptions to the warrant

       requirement of the Fourth Amendment. Id. at 665 (emphases added).

       The Fourth Court of Appeals also recognized that in Aviles, 385 S.W.3d

       110, vacated, 134 S.Ct. 902 (2014), it incorrectly relied upon the dicta in

                                         Page 37 of 72
	  
       Beeman v. State, 86 S.W.3d 613, 615 (Tex. Crim. App. 2002), in

       which the Court of Criminal Appeals discussed that the implied consent

       statute expanded the State’s authority to draw a DWI suspect’s blood in

       the absence of a warrant, dicta that is incorrect in light of McNeely (Aviles

       also implicated the implied consent and mandatory draw statutes). Id. at

       660.

              Like in Villarreal, Sutherland, and Aviles, in Weems, no exigent

       circumstances existed because the officer admitted that: (1) he made no

       effort to obtain a warrant; (2) there were other officers present at the

       scene; (3) there was an accident, (4) the passenger was injured and taken

       to the hospital, and (5) the driver also complained of being injured and

       was taken to the hospital. Id. at 666. The Fourth Court of Appeals also

       indicated that “[T]he record does not reflect other factors that would be

       relevant under the totality of the circumstances, including ‘procedures

       in place for obtaining a warrant or the availability of a magistrate

       judge’ and ‘the practical problems of obtaining a warrant within a

       timeframe that still preserves the opportunity to obtain reliable

       evidence.’” Weems, id. at 666, citing McNeely, 133 S.Ct. at 1568.

              Therefore,   under   the   totality   of    the   circumstances,   the

       warrantless blood draw was not justified by the exigency circumstances

                                          Page 38 of 72
	  
       exception. Id. at 666. And, the Fourth Court of Appeals erroneously held

       that a warrantless blood draw of a DWI suspect that was conducted

       under the Transportation Code did not violate the suspect’s rights under

       the Fourth Amendment, and whether the officer could have obtained a

       warrant before authorizing the blood draw was “immaterial given the

       mandate of section 724.012(b)(3)(B).” Weems, id. at 660.

             In Aviles, the defendant was stopped for suspicion of DWI.

       Aviles, 385 S.W.3d at 112. Upon learning that the defendant had two

       prior DWI convictions, the officer requested a breath or blood specimen.

       Id. The defendant refused, so the officer compelled a blood draw

       under Texas Transportation Code § 724.012(b)(3)(B). After the Fourth

       Court of Appeals affirmed his conviction and the Court of Criminal

       Appeals denied discretionary review [See In re Aviles, PD-1508-12, 2013

       Tex. Crim. App. LEXIS 770 (Tex. Crim. App., May 8, 2013)

       (Meyers, J. would grant)], the defendant filed a petition for a writ of

       certiorari with the Supreme Court. The Supreme Court granted

       certiorari and issued a one- paragraph order, vacating the opinion of the

       Fourth Court of Appeals, and remanded the case “for further

       consideration in light of Missouri v. McNeely.” Aviles, 134 S.Ct. at 902.

       Although the Supreme Court’s opinion in Aviles is short and at first


                                         Page 39 of 72
	  
       glance does not appear to hold precedential value, the fact that the

       Supreme Court issued the summary reversal and reversed the Fourth

       Court of Appeals “for further consideration in light of Missouri v.

       McNeely” should make it clear to all Texas courts how the Supreme

       Court views warrantless blood draws merely because a defendant such

       as Appellant has two or more prior convictions for DWI.

             Then in Gentry v. State, 12-13-00168-CR, 2014 Tex. App.

       LEXIS 9538 (Tex. App. Tyler, August 27, 2014) (not designated for

       publication), the defendant is stopped for traffic violations. Id. at *1. The

       officer observes a spilled cooler of beer in the rear seat. Id. When the

       officer spoke to the defendant, the officer noticed that the defendant’s

       “speech was slurred, his eyes were bloodshot, and his breath smelled of

       alcohol.” Id. After performing SFSTs on the defendant, the officer

       arrested the defendant. Id. The defendant refused to submit to a breath

       test. Id. The officer discovered that the defendant had at least two prior

       convictions for DWI, thus implicating Texas Transportation Code §

       724.012(b)(3)(B), which allows a mandatory blood draw if “[O]n two or

       more occasions, [the defendant] has been previously convicted of or

       placed on community supervision for an offense under Tex. Pen. Code

       § 49.04 (DWI).... Tex. Transp. Code § 724.012(b)(3)(B) (2012). The


                                          Page 40 of 72
	  
       defendant files a motion to suppress under McNeely, which is denied by

       the trial court. Gentry, id. at *2. Appellant pleads guilty to the charge in

       the indictment, elects to have a jury assess punishment, and receives life

       in prison. Id.

             Under the holding in McNeely, and also citing Aviles, Weems,

       State v. Ballard, No. 11-13-00224-CR, 2014 Tex. App. LEXIS 8373,

       2014 WL 3865815, at *3 (Tex. App. Eastland July 31, 2014, no pet.

       h.) (not designated for publication); Sutherland; and Villarreal, in

       Gentry, the Twelfth Court of Appeals held that the implied consent and

       mandatory blood draw statutory schemes in the Texas Transportation

       Code are not exceptions to the warrant requirement under the Fourth

       Amendment. Gentry, id. at *9. The Twelfth Court of Appeals also

       found that the State “relied solely on Texas Transportation Code § 724, and

       offered no evidence of any other recognized exception to the Fourth

       Amendment that would have permitted it to have Appellant’s blood

       drawn without a warrant.” Id. As a result, the trial court abused its

       discretion in denying Appellant’s motion to suppress. Id. at *11.

             In State v. Baker, PD-1592-13 (Tex. Crim. App., October 15, 2014),

       the Court of Criminal Appeals dismissed the State’s petition for

       discretionary review as improvidently granted. The underlying case, State

                                          Page 41 of 72
	  
       v. Baker, No. 12-12- 00092-CR, 2013 Tex. App. LEXIS 12818 (Tex.

       App. Tyler, October 16, 2013) (not designated for publication), was one

       of the first post-McNeely decisions by a Texas court of appeals. In

       Baker, the officer told the defendant that he was required to provide a

       mandatory blood specimen, which caused the defendant to “consent” to

       the blood draw. Id. at *28. The trial court found that the State failed to

       show by clear and convincing evidence that the defendant voluntarily

       consented to the taking of his blood. Id. at *28-29 The Court of Appeals

       affirmed, holding that because the defendant signed the consent form

       only after the officer told him that a blood specimen was mandatory and

       transported him to a hospital, “the trial court could have reasonably

       concluded under the totality of the circumstances that (the defendant)

       acquiesced to a claim of lawful authority at the time he signed the form.”

       Id.

             Although the Court of Criminal Appeals dismissed the State’s

       petition   for   discretionary review as improvidently granted, and

       precedential value is not added to the opinion of the court of appeals as a

       result, the fact that the Court of Criminal Appeals did so may provide

       insight to how the Court of Criminal Appeals will ultimately rule in the

       McNeely line of cases, most probably with its rehearing in Villarreal.


                                         Page 42 of 72
	  
       Appellant believes that the Court of Criminal Appeals will conclude

       that Texas Transportation Code §§ 724.011 and 724.012 violate the

       Fourth Amendment because these statutes dispense with the Fourth

       Amendment’s warrant requirement and none of the exceptions to the

       warrant requirement apply.

             The Fourteenth Court of Appeals, in Douds v. State, while

       recognizing that an accident—in some instances—may provide exigent

       circumstances, held that “[e]ven if an officer’s investigation of a serious

       accident lasts for an hour, the availability of another officer 15 minutes

       into the investigation could significantly reduce the delay necessary to

       obtain a warrant.” Douds v. State, 434 S.W.3d 842, 853 (Tex. App.—

       Houston [14th District] (en banc), (pet. Granted). The court of appeals

       also pointed out that courts are not responsible for grading the severity of

       an accident. Id. “To ensure that the exigencies of the situation make

       dispensing with the warrant requirement ‘imperative,’ courts must focus

       on whether the State showed that the police could not reasonably obtain a

       warrant, not on whether it showed how severe the accident was.” Id.

       (internal cites omitted). Focusing on a delay attendant to investigation

       “runs afoul of courts’ long held aversion to tests that allow law

       enforcement officers to “create the exigency.” Id. at 854.


                                          Page 43 of 72
	  
             In Douds, the record does not show what time was necessary to

       obtain a warrant. Id. at 855. The record did show that between 2:36 a.m.

       and 4:45 a.m.—when Douds’ blood was drawn—at least two officers and

       EMS/Fire personnel were on the scene of Douds’ accident. Id. The court

       of appeals found there were no facts on the record to support a reasonable

       conclusion that it was somehow impractical to obtain a warrant during this

       two-hour period. Id. Nor was there any evidence that a further delay to

       obtain a warrant “would have threatened the destruction of evidence that is

       lost gradually and relatively predictably.” Id. (citing McNeely, 133 S. Ct.

       at 1561, 1563).

             In McNeil v. State, the Fourth Court of Appeals faced circumstances

       similar to the case at bar. McNeil v. State, 2014 Tex. App. LEXIS 8519,

       No. 04-13-00415-CR (Tex. App.—San Antonio, Aug. 6, 2014, pet. filed).

       In McNeil, the officer testified that he did not attempt to obtain a warrant,

       but instead relied solely on §724.012 of the Texas Transportation Code.

       Id. at *10-11. Upon questioning, the officer explained the procedures for

       getting a warrant and that it would likely take 20-30 minutes to reach an

       investigator, who would then reach out to a magistrate for a warrant.

       Testimony further showed that an investigator could have been called to

       begin the warrant process, but the officer did not call one. In holding that


                                          Page 44 of 72
	  
       no exigency existed considering the totality of the circumstances, the San

       Antonio court of appeals stated that the officer “never thought about

       obtaining a warrant, though he knew he could, if he needed to” and never

       “took a single step to get a warrant.” Id. at 14.

             Finally, Appellant asks this Court to consider Bowman v. State,

       2015 Tex. App. LEXIS 1285, No. 05-13-01349-CR (Ct. App.—Dallas,

       Feb. 10, 2015) (pet. reh’g filed), not designated for publication. In

       Bowman, Officer Hoya of the McKinney Police Department was working

       patrol when he noticed a Volkswagen “off the street” with “heavy front-

       end damage” from hitting a telephone pole.          Id. at *3.   Hoya saw

       Bowman standing at the passenger door of the car and found a female in

       the passenger seat, still buckled in, who was crying and appeared to be

       suffering internal injuries. Id. at *4. Hoya believed, based on Bowman’s

       appearance and a strong odor of alcohol coming from his breath, that

       Bowman might be intoxicated, but no field sobriety tests were done. Id.

       Both Bowman and the female were transported by ambulance to a

       hospital in Frisco, about 30 miles away. Id. at *4–5. Hoya followed in

       his patrol car. Id. at *5. At the hospital, Hoya placed Bowman under

       arrest and read him the DIC-24 warning. Id. Bowman did not consent to

       providing as blood sample, so Hoya “had the nurse take a mandatory


                                           Page 45 of 72
	  
       specimen from him,” citing “two authorizations” within the Texas

       Transportation Code: (1) an injured person, transported to the hospital;

       and (2) Bowman had “previous DWI convictions.” Id. Hoya did not

       make any effort to obtain a warrant, instead relying solely on the

       “Transportation Code Statute.” Id.

             Hoya did testify, however, that while was no “on-call judge” that

       night; a municipal judge was available [who did not accept faxed

       warrants]. Id. And, that had he attempted to get a warrant, it would have

       taken “maybe an hour to an hour and a half to get the warrant plus a little

       additional driving time.” Id.

            “According to Hoya, the ‘exigency factors’ he considered when

making the decision to obtain a mandatory blood draw were: (1) ‘[j]ust the

time it would take to get the blood warrant would have been quite

sometime [sic]’ and (2) “plus, I had [the passenger], who I believe was

seriously injured.” Id. at 6–7. Hoya testified this was “not a routine DWI

investigation.” Id. at 7.

             On cross-examination, however, the timeline was fully explored,

       and it was revealed that (inter alia): (1) the paramedics were told to

       transport Bowman and that it would be a “mandatory draw;” (2) Hoya

       took time to search in Bowman’s car for keys and the passenger’s shoes;

                                         Page 46 of 72
	  
         (3) Hoya “had time to ‘talk to’ and ‘make jokes with’ the back-up

         officers at the scene;” (4) one of the other officers could have gone with

         Hoya to the hospital; (5) warrants take “about an hour” following a

         refusal; (6) Hoya can prepare the warrant remotely, on his laptop; and (7)

         a typical roadside DWI investigation takes about 30 minutes. Id. at *6–8.

         Though time-wise, the interaction with Bowman could be considered

         standard, Hoya testified that this was not a standard DWI investigation,

         because the occupants were [injured and] transported to the hospital. Id.

         at *8. The trial court denied Bowman’s motion to suppress, based on

         exigent circumstances and Texas Transportation Code §724.012. Id. at

         *14.2 This Court, in reviewing the case on appeal, reversed. In holding

         that exigent circumstances did not exist, this Court made two important

         findings:                                                                                                (1) that the State is responsible for showing facts and

         circumstances “beyond the passage of time and the resulting dissipation

         of alcohol in the bloodstream.” Id. at *37, quoting Douds, 434 S.W.3d at

	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
2
   Interestingly, the trial court—in its Findings of Fact and Conclusions of Law—stated two things which
do not bear out under existing case law: (1) “At the time of the offense, a mandatory blood draw under
Texas Transportation Code §724.012 was not in conflict with the case law;” and (2) “Officer Hoya had a
good faith basis to request a mandatory blood draw. . . .” While (1) is true, the fact that the statute has
since been found unconstitutional (by the Court of Criminal Appeals in Villarreal) means that it makes
little difference that it once was believed constitutional. Regarding (2), as the Texas Court of Criminal
Appeals made clear in Villarreal, supra: Section 724 of the Texas Transportation code “...does not
address or purport to dispense with the Fourth Amendment’s warrant requirement for blood draws.”
Villarreal, 2014 Tex. Crim. App. LEXIS 1898 at *18; see also, McNeil, 2014 Tex. App. LEXIS 8519 at
*16, (“It cannot be said that [an officer] acted in good faith when he failed to obtain a warrant based on a
statute that does not dispense with the warrant requirement.”).


                                                                                                                                                                                                                                   Page 47 of 72
	  
       851; and (2) “the State must show that the time necessary to obtain a

       warrant under the circumstances threatened the destruction of the blood

       evidence” Bowman, 2015 Tex. App. LEXIS 1285 at *37–38, quoting

       Leal v. State, No. 14-13-00208-CV, 2014 Tex. App. LEXIS 12286 at *5

       (Tex. App.—Houston [14th Dist.] Nov. 13, 2014, no pet.).

             Appellant also notes that a fallacy in the implied consent statute (§

       724.011) is that the “implied consent” is based solely on a driver’s

       decision to drive on a Texas highway. In Florida v. Jimeno, 500 U.S.

       248, 252 (1991), the Supreme Court of the United States held that

       “[A] suspect may of course delimit as he chooses the scope of the

       search to which he consents.” In other words, a necessary element of

       consent is the ability to limit or revoke it. The fact that a person

       implicitly consents to a blood draw merely because the person drives on

       a Texas highway effectively makes the implied consent irrevocable, which

       of course amounts to no consent at all. Consent must be freely given, but

       the person giving the consent must also be allowed to withdraw it or

       limit it. Jimeno, 500 U.S. at 252; Mason v. Pulliam, 557 F.2d 426, 429

       (5th Cir. 1977) (“[S]ince [appellee’s] action was unilateral and contained

       no agreement as to duration, it was implicitly limited by [appellee’s]

       right to withdraw his consent and invoke his Fourth Amendment rights.”).


                                         Page 48 of 72
	  
              viii. Under the holdings in McNeely, Villarreal, and other Texas
                  courts of appeal, the trial court erred when it denied
                  Appellant’s motion to suppress because: (1) the officer
                  admitted he did not even try to obtain a warrant for
                  Appellant’s blood; (2) there were no exigent circumstances
                  justifying the warrantless blood draw under Texas
                  Transportation Code § 724.012; (3) Thomas had no
                  probable cause to arrest Appellant; (4) and the trial court’s
                  decision is not correct on any theory of law applicable to the
                  case.
             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. Russell v. State, 717

       S.W.2d 7, 9 (Tex. Crim. App. 1986). A defendant satisfies this burden

       by establishing that a search or seizure occurred without a warrant.

       Bishop v. State, 85 S.W.3d 819, 822 (Tex. Crim. App. 2002). Once the

       defendant makes this showing, the burden of proof shifts to the State,

       which must establish that the search or seizure was conducted pursuant

       to a warrant or was reasonable. Id.

             In the case before this Court, blood was seized from Appellant.

       The blood was not seized pursuant to a warrant, but was instead seized

       under Texas Transportation Code § 724.011 or 724.012. As a result,

       Appellant established that the blood draw occurred without a warrant,

       so the burden of proof shifted to the State. This was conceded by the

       State at the motion to suppress. (RR2, 4). Appellant will now show that

                                             Page 49 of 72
	  
       the State cannot meet its burden of proof that the blood draw was

       reasonable under the Fourth Amendment.

             First, in clear violation of McNeely and Villarreal, Thomas did not

       even try to obtain a search warrant in this case, and there were no

       exigent circumstances present. Thomas did not see Appellant driving, nor

       encounter him at the scene.     (RR2, 60–61). Thomas determined that

       Appellant was intoxicated, and placed Appellant under arrest based solely

       on the odor of alcohol and the fact that Appellant had been in a motorcycle

       accident, (RR2, 54, 76–79). The exchange between the State’s attorney

       and Thomas was as follows (RR2, 60–61):

            Q: This situation is different that your normal DWI arrest
            because there is no initial contact. The initial contact is when
            you smelled the alcohol and then read them [sic] that (the DIC-
            24), correct?

            A. Yes.

After Thomas arrested Appellant, Thomas immediately determined a

warrantless blood-draw would be in order. (RR2, 76-78). Thomas never

even contemplated getting a warrant for Appellant’s blood. (RR2, 82). The

exchange between the Defense attorney and Thomas was as follows (RR,

82):

    Q. When you’re in the room and you’re reading the DIC-24 . . .
You never even contemplated that search warrant?

                                         Page 50 of 72
	  
            A. No sir.

            Thomas thus did not obtain a warrant for the blood draw. (RR, 87).

Rather, Thomas just went to his car and got the paperwork and test kit,

read it to Appellant and ordered a legal blood draw be performed. (RR,

7 6 – 7 7 , 7 9 , 84). As a result, it is clear that Thomas’s sole basis for the

blood draw was § 724.011 (via 721.014), an unconstitutional statute.

             And contrary to the trial court’s erroneous finding that “the facts

       presented in this case establish the existence of the exigent circumstances

       exception to the warrant requirement of the 4th Amendment” in that:

            Trooper Thomas could not have reasonably expected to have
            obtained a warrant without impeding the defendant’s medical
            treatment. The defendant’s medical condition was severe, and
            the treatment of his injuries required urgent, lifesaving care, and
            the impending transportation by helicopter to Dallas. Whether
            the defendant would survive the injuries sustained in the accident
            was unknown. These circumstances were not variables
            controlled by Trooper Thomas.

(CR, 354 ¶ 28). A review of the record, however, shows that there were in

fact no exigent circumstances, and Thomas acted unreasonably by

not even attempting to obtain a search warrant.

             For the exigent circumstances exception to apply, there must be

       both probable cause and exigent circumstances present. See Warden v.

       Hayden, 387 U.S. 294, 298-299 (1967) and Vale v. Louisiana, 399

       U.S. 30, 35-36 (1970).
                                          Page 51 of 72
	  
            Exigent circumstances are those in which officers reasonably fear

       for their safety, where firearms are present, where there is a risk of a

       criminal suspect’s escaping, or fear of destruction of evidence. See

       Gutierrez v. State, 221 S.W.3d 680, 685 (Tex. Crim. App. 2007) and

       Parker v. State, 206 S.W.3d 593, 597 n.7 (Tex. Crim. App. 2006); see

       also McNairy v. State, 835 S.W.2d 101, 106 (Tex. Crim. App. 1991)

       (en banc) and United States v. Rico, 51 F.3d 495, 500 (5th Cir. 1995),

       cert. denied, 116 S. Ct. 220 (1995).     If the State seeks to rely on the

       exigent circumstances exception, the State bears the burden of proving by

       a preponderance of the evidence the existence of both probable cause and

       exigent circumstances. Gutierrez, 221 S.W.3d at 685; see also United

       States v. Morales, 171 F.3d 978, 981-982 (5th Cir. 1999). In the case

       before this Court, there was neither probable cause nor exigent

       circumstances present to justify the blood draw without a warrant.

       Additionally, as the court held in Douds, “to ensure that the exigencies of

       the situation make dispensing with the constitutional requirement of a

       warrant ‘imperative,’ courts must focus on whether the State showed that

       police could not reasonably obtain a warrant, not on whether it showed

       how severe the accident was.” Douds, 434 S.W.3d at 853–54.




                                         Page 52 of 72
	  
             Thus, the FFCL are not supported by the record. Appellant was

       arrested at roughly 11:27–11:32 p.m. and the blood was drawn from

       Appellant only five to ten later at 11:37 p.m. (RR, 79, 84). Though the

       court found that attempting to obtain a warrant would have impeded

       defendant’s medical treatment, this is simply not the case. See FFCL (CR

       354 at ¶28). Additionally, that is not the relevant question—as this Court

       pointed out in Bowman (the State must show that the time necessary to

       obtain a warrant under the circumstances threatened the destruction of the

       blood evidence, not that it could possibly have held up the treatment of

       Appellant). Also, this would not have been a situation where—as the

       State’s attorney put it—the Appellant was “taken out of the jurisdiction. . .

       transported 60 miles away, and the evidence along with [him].” Trooper

       Thomas was an officer with Texas Department of Public Safety. As such,

       he had jurisdiction across the entire state of Texas. He could have gotten

       the warrant and forwarded it to another trooper in the area of the hospital

       to which Appellant was taken, or he could have driven there himself.

       Either way, the warrant could have been obtained and executed in a timely

       fashion. Instead, in clear reliance on implied consent, it simply wasn’t

       sought.




                                          Page 53 of 72
	  
             It is also clear that Trooper Thomas created any time constraints

       that could reasonably be thought to exist. Though Trooper Walters was on

       scene just after Thomas arrived, Thomas neither allowed Walters to clear

       the scene so he could go to TMC to see Appellant, nor did he send

       Walters. Additionally, though the State and the trial court claim that the

       exigency is due to the pending care flight, Thomas knew Appellant would

       likely be care-flighted 45 minutes before arriving at the hospital, was

       clearly told that Appellant would be upon arrival at TMC, yet still waited

       25 minutes before going into Appellant’s room. Thomas created any time

       constraint that existed, and as the court explained in Douds, the courts

       historically frown upon findings of exigency in situations like this.

             Next, Thomas had no probable cause to arrest Appellant.

       Thomas’s sole reason for arresting Appellant for driving while

       intoxication was an odor of alcohol combined with a motorcycle accident.

       (RR2, 53–54, 79). There are three types of police-citizen interactions:

       (1) consensual encounters that do not implicate the Fourth Amendment;

       (2) investigative detentions that are Fourth Amendment seizures of

       limited scope and duration that must be supported by a reasonable

       suspicion of criminal activity; and (3) arrests, which are reasonable only

       if supported by probable cause. Florida v. Bostick, 501 U.S. 429, 434


                                           Page 54 of 72
	  
       (1991); Terry v. Ohio, 392 U.S. 1, 30-31 (1968); Gerstein v. Pugh, 420

       U.S. 103, 111-112 (1975).

             Appellant was arrested in this case. Although the smell of

       alcohol coming from Appellant’s person and the fact that Appellant

       was involved in an accident may have justified further investigation,

       these circumstances did not justify an arrest. But, Thomas simply

       arrested Appellant and then proceeded to effect the warrantless blood-

       draw. As a result, there was never any probable cause established for

       Appellant’s arrest.

             Further, the trial court’s decision is not correct on any theory of

       law applicable to the case. The trial court erred and abused its discretion

       because in violation of McNeely, the trial court ruled that a warrant

       was not necessary in Appellant’s case for the blood draw. The only

       reason for the warrantless blood draw in this case was the natural

       metabolization of alcohol in Appellant’s blood. This fact did not

       represent a per se exigency that justified an exception to the Fourth

       Amendment’s warrant requirement for the nonconsensual blood draw.

             Finally, the possible exception noted by the Supreme Court of the

       United States that “[E]xigent circumstances justifying a warrantless blood

       draw may arise in the regular course of law enforcement due to delays

                                         Page 55 of 72
	  
       from the warrant application process” does not apply in the case before

       this Court. This is because Trooper Thomas admitted that he could have

       obtained a warrant for the blood draw, but—relying on the implied

       consent statute, which he believed allowed the government to compel a

       blood sample from Appellant without a warrant—did not even take a

       single step to secure one. (RR2, 81). Thus, because the Trooper did not

       make an attempt to get a warrant, there could be no delay at all in the

       warrant application process.

             Because the natural dissipation of alcohol in the bloodstream does

not constitute an exigency sufficient to justify conducting a blood test

without a warrant (McNeely, id. at 1563 and 1568), and there were no

other recognized exceptions to the warrant requirement present in

Appellant’s case (i.e., consensual search, brief investigatory stop, search

incident to a valid arrest, and the plain-view doctrine), the involuntary taking

of Appellant’s blood, which involved a “compelled physical intrusion

beneath (Appellant’s) skin and into his veins” to obtain a sample of his

blood for use          as evidence in a criminal investigation amounted to an

invasion of “bodily integrity” that “implicates (Appellant’s) most personal

and deep-rooted expectations of privacy. McNeely, id. at 1558.




                                       Page 56 of 72
	  
       Based upon the totality of circumstances in this case, the warrantless,

involuntary blood draw from Appellant was unreasonable and violated the

Fourth Amendment. McNeely, id. at 1559. Because Thomas could have

reasonably obtained a warrant before the blood draw was performed, the

Fourth Amendment mandates that he should have done so. Id. at 1561.

There were no delays in the warrant application process in this case.

Instead, Thomas simply chose to not attempt to obtain a warrant for

Appellant’s blood.

       Though it is clear through Thomas’s testimony that Thomas’s sole

basis for not obtaining a warrant was implied consent. As is made clear in

Villarreal, although Texas Transportation Code § 724.012 (b) allows

Thomas to obtain a breath or blood sample, § 724.012 did not allow

Thomas to obtain a breath or blood sample without first obtaining a

warrant. Id. at *34; See Tex. Transp. Code § 724.012 (2012). Finally, this

Court should conclude that given the absence of a warrant, the absence of

exigent circumstances, and the absence of consent, the State clearly failed

to demonstrate that the involuntary blood draw was reasonable under the

Fourth Amendment or that an exception to the Fourth Amendment’s

warrant requirement is applicable in this case (as was the State’s burden).

Villarreal, id. at *34; U.S. Const. Amend. IV. See also Weems, 434


                                    Page 57 of 72
	  
S.W.3d at 665 (the implied consent statute [Tex. Transp. Code § 724.011

(2012)] and the mandatory blood draw statute [Tex. Transp. Code §

724.012 (2012)] are not exceptions to the warrant requirement of the Fourth

Amendment).

            For the same reasons as in Villarreal, Sutherland, 436 S.W.3d at 29-

31, and in Weems, no exigent circumstances existed in the case before this

Court because Thomas made no effort to obtain a warrant. See also Gentry,

2014 Tex. App. LEXIS 9538, Id. at *9 (the implied consent and

mandatory blood draw statutory schemes found in the Texas Transportation

Code are not exceptions to the warrant requirement under the Fourth

Amendment).

               ix. Even if Chapter 724.012(b)             was   constitutional,   its
                   requirements cannot be met.
            In McBride v. State, 946 S.W.2d 100, 101 (Tex. App.—Texarkana

       1997, pet. ref’d), the court held that there are three essential elements that

       must be met in order to require a specimen under §724.012(b): (1) there

       must be an accident; (2) there must be a death or danger of death as a result

       of Appellant’s actions; and (3) there must be a refusal of the request for the

       specimen. If one of these elements cannot be found, then §724.012 is not

       applicable. Id.



                                          Page 58 of 72
	  
            In the case at bar, Appellant did not refuse to provide a specimen. As

       a result, even if the mandatory draw provision was not unconstitutional,

       §724.012(b) clearly cannot apply to Appellant’s case.

               x. The good-faith exception does not apply in this case.
            The good-faith exception to the Fourth Amendment provides that

if an officer relies in “good faith” on a statute authorizing his warrantless

search and the statute is later determined to be unconstitutional, the federal

exclusionary rule does not apply. See Illinois v. Krull, 480 U.S. 340, 342,

355 (1987). The federal good- faith exception is a federal judicially-created

exception that runs counter to Texas law. See Tex. Code Crim. Proc. Art.

38.23(b) (2012).

            Three good-faith exceptions exist under federal law: (1) where an

officer relies in good faith on a statute authorizing a warrantless search, and

the statute is later found to be unconstitutional; (2) the search was

conducted in good- faith reliance upon binding appellate precedent which is

later overturned; and (3) where the search was conducted in good-faith

reliance upon a warrant which is later determined to be improperly

issued. See Davis v. United States, 131 S.Ct. 2419, 2427-2428 (2011);

Krull, 480 U.S. at 342; and United States v. Leon, 468 U.S. 897, 923-924

(1984).


                                         Page 59 of 72
	  
       Unlike the federal exclusionary rule, in Texas, the exclusionary rule is

statutory. See Tex. Code Crim. Proc. Art. 38.23(b) (2012). The Texas

exclusionary rule already has an exception for “a law enforcement

officer acting in objective good faith reliance upon a warrant issued by a

neutral magistrate based on probable cause.” Id. Nowhere in the Texas

exclusionary rule does it provide that an officer may rely in good faith

when there was no warrant issued by a neutral magistrate based on

probable cause. Further, the exceptions to the federal exclusionary rule

apply to the Texas statutory exclusionary rule only if they are consistent

with the plain language of the statute. See Douds v. State, 434 S.W.3d 842,

861 (Tex. App. Houston [14th Dist.] 2014, pet. granted) (en banc). The

Court of Criminal Appeals has previously rejected an effort to broaden the

Texas good- faith exception using the federal rule. Douds, 434 S.W.3d at

861-862, citing Howard v. State, 617 S.W.2d 191, 193 (Tex. Crim. App.

1979) (op. on rehearing)      (The federal good-faith exception does       not

apply to the Texas statutory good-faith exception).

       And since “the Texas good faith exception is more limited than the

scope of its federal counterpart... an officer’s good faith reliance on the

law or existing precedent is not recognized as an exception to the Texas

exclusionary rule.” See State v. Jackson, 435 S.W.3d 819, 831 (Tex. App.


                                    Page 60 of 72
	  
Eastland 2014, pet. granted). For instance, in Wehrenberg v. State, 416

S.W.3d 458, 473 (Tex. Crim. App. 2013), the Court of Criminal

Appeals adopted the federal independent source exception to the

exclusionary rule. But in State v. Daugherty, 931 S.W.2d 268, 270 (Tex.

Crim. App. 1996), the Court of Criminal Appeals refused to adopt the

federal inevitable-discovery exception to the exclusionary rule.

       In the instant case, because no warrant was issued, the good- faith

exception does not apply. See Jackson, 435 S.W.3d at 831 and Douds, 434

S.W.3d at 862. This conclusion is consistent with the holding in Weems, in

which the Fourth Court of Appeals, in citing Krull, 480 U.S. at 342,

confirmed that “[A] statute cannot support objectively reasonable reliance

if, in passing the statute, the legislature wholly abandoned its responsibility

to enact constitutional laws...Nor can a law enforcement officer be said to

have acted in good-faith reliance upon a statute if its provisions are such

that a reasonable officer should have known that the statute was

unconstitutional.” Weems, id. at 666. The Fourth Court of Appeals

confirmed that other than where there is an actual warrant, there is no

good-faith exception in the Texas exclusionary rule under Article 38.23. Id.;




                                    Page 61 of 72
	  
Tex. Code Crim. Proc. Art. 38.23 (2012); Douds, 434 S.W.3d at 862 (Good-

faith exceptions of Davis and Krull do not apply to the Texas exclusionary

rule).

            xi. The holding in McNeely applies to this case because this
                case was pending when McNeely was handed down.
         The holding in McNeely is applicable to Appellant’s case. In

Griffith v. Kentucky, 479 U.S. 314, 328 (1987), the Supreme Court held that

a newly- announced constitutional rule for conducting criminal prosecutions

must be applied retroactively to all cases pending on direct review or not

yet final when the rule was announced.              By implication, a newly-

announced constitutional rule applies to any case that is pending before a

trial court when the rule is handed down. Only if a case becomes “final”

(i.e., conviction becomes final because the direct appeal fails) would the

holding in Teague v. Lane, 489 U.S. 288, 310 (1989) apply, where the

Supreme Court held that new federal constitutional rules do not apply

retroactively to those cases that became final before the new rule was created.

         In the case before this Court, Appellant was charged by information

on February 7, 2012, and this case is now on direct appeal. (CR, 16).

McNeely was handed down on April 17, 2013. Thus, on April 17, 2013, the

case before this Court was pending before the trial court, so the holding

McNeely applies to this case.

                                    Page 62 of 72
	  
        xii. Appellant was harmed by the trial court’s error of
             denying the motion to suppress.
       Under Texas Rule of Appellate Procedure 44.2(a), the admission of

evidence obtained in violation of the Fourth Amendment is subject to a

constitutional harm analysis. See Hernandez v. State, 60 S.W.3d 106, 106

(Tex. Crim. App. 2001); Tex. Rule App. Proc. 44.2(a) (2015). If the

appellate record reveals constitutional error that is subject to harmless error

review, a reviewing court must reverse the judgment of conviction or

punishment unless the court determines beyond a reasonable doubt that the

error did not contribute to the conviction or punishment. See Tex. Rule App.

Proc. 44.2(a) (2015). The harmless error inquiry “should adhere strictly to

the question of whether the error committed in a particular case contributed

to the verdict obtained in that case.” Snowden v. State, 353 S.W.3d 815,

821 (Tex. Crim. App. 2011). The trial court’s admission of the blood test

evidence and all the evidence after Appellant’s arrest clearly contributed to

Appellant’s conviction. See Holmes v. State, 323 S.W.3d 163, 173-174

(Tex. Crim. App. 2010). Thus, Appellant was harmed by the trial

court’s error of denying the motion to suppress.




                                    Page 63 of 72
	  
         xiii. Conclusion
       Under   the   Fourth   Amendment,      the   holdings   in   McNeely,

Villarreal, and other Texas courts of appeal, the trial court erred when

it denied Appellant’s motion to suppress the blood test results because: (1)

Thomas admitted he did not even try to obtain a warrant for Appellant’s

blood; (2) there were no exigent circumstances justifying the warrantless

blood draw under Texas Transportation Code § 724.012; (3) Thomas had

no probable cause to arrest Appellant; (4) the trial court’s decision is not

correct on any theory of law applicable to the case; (5) the good-faith

exception does not apply in this case; (6) the holding in McNeely apply to

this case because this case was pending when McNeely was handed down;

and

(7) Appellant was harmed by the trial court’s error of denying the

motion to suppress. As a result, Appellant prays that this Court reverse

the Judgment and sentence for Driving While Intoxicated, suppress all

the evidence seized from Appellant, including the blood results and all

evidence due to the illegal arrest, and remand this case back to the trial

court for a new trial. See Tex. Code Crim. Proc. Art. 44.25 (2015) and Tex.

Rule App. Proc. 43.2(d) (2015).




                                   Page 64 of 72
	  
       2. Issue Two: The trial court erred and Appellant was harmed
          when the trial court denied Appellant the right to present the
          totality of the legal evidence raising an issue of material fact,
          which was an element of the offense, and, which—in turn—
          allowed the State to admit evidence, obtained in violation of the
          Constitutions and laws of the United States of America and the
          State of Texas, against Appellant at trial.


          i. Statement of Facts
       The State made an oral motion in limine seeking to prevent the

defense from any mention of the issue of exigent circumstances or implied

consent during voir dire or trial. (RR6, 5). Appellant argued that this

prevented him from presenting a defense and from putting before the jury

facts relevant to a 38.23 determination by the jury. (RR6, 5–16). The trial

court granted this motion. (RR6, 9–16). During trial, counsel for the State

sought to introduce evidence of Appellant being unconscious, the DIC-24

being read, and such being proper under the protocol of DPS. (RR6, 95–97).

Counsel for Appellant objected and a discussion was had at the bench that

the State was violating the order on the Motion in Limine. (RR6, 96). This

discussion was later put on the record.       (RR6, 118–120).      Appellant’s

objections were overruled. Appellant called Thomas and made an offer of

proof as to the evidence sought to be put before the jury. (RR6, 120–125).

Appellant then made argument before the court that the denial of the right to

present the testimony given in the offer of proof violated Appellant’s right to

                                    Page 65 of 72
	  
present a defense, and denied Appellant due process of law under the federal

and state constitutions. (RR6, 126–128). The State then cross-examined

Thomas and the following exchange was had:

       Q. You also testified that there was not sufficient time for you
       to go through the process to get a blood warrant?

       A. If I – if I had wanted to cite the search warrant issue, I
       wouldn’t have had time. I wasn’t even—the search warrant
       didn’t even come into play because I had implied consent
       available to me through the way of the statute.

(RR6, 128–129, see also RR6, 130 at lines 10-20, RR6, 131). The State

argued that the admission of the evidence was “not an element of the

offense,” would be “overly confusing to the jury,” was a “waste of time,”

and was not relevant.”         Further, the State argued that the “only

determination [the jury was] going to make at the end of their case [was if]

the State [had] proven that the defendant was intoxicated.” (RR6, 132).

Attorney for Appellant argued that Art. 38.23 provided for the jury to make

a decision as to the legality of the search and ultimate seizure of Appellant’s

blood. (RR6, 135, 140, 141-142). Though the court acknowledged that Art.

38.23 encompassed both probable cause and the constitutionality of the

seizure, the court denied Appellant the right to go into the matters (testified

to in the offer of proof) in front of the jury. The court acknowledged that a

38.23 instruction would be given.      (RR6, 148).     Yet, the court denied


                                    Page 66 of 72
	  
Appellant the right to do present said evidence to the jury, and denied

Appellant’s objection to that ruling. (RR6, 138, 142).

          ii. Introduction
       As is shown in Issue 1, the blood evidence was obtained illegally—

both under implied consent and under the mandatory blood draw provision.

Because the court denied Appellant’s motion to suppress, the results of the

unconstitutional blood draw were presented to the jury. Then the trial court

denied Appellant’s request during trial to present material evidence

regarding the circumstances of the blood draw, despite the fact that the

evidence was (1) probative of the issue at hand; (2) not likely to impress the

jury in an irrational, but indelible way; (3) not going to take an unreasonable

amount of time to develop; and (4) was necessary for Appellant’s defense.

          iii. Standard of Review is Abuse of Discretion
       An appellate court reviews a trial court's ruling on the admission of

evidence for an abuse of discretion. See Weatherred v. State, 15 S.W.3d 540,

542 (Tex. Crim. App. 2000). A trial court abuses its discretion when its

decision is so clearly wrong as to lie outside that zone within which

reasonable persons might disagree. Webb v. State, 36 S.W.3d 164, 176 (Tex.

App.--Houston [14th Dist.] 2000, pet. ref'd).




                                    Page 67 of 72
	  
          iv. Applicable Law
       In weighing the probative value of offered evidence under Rule 403, a

trial court considers (1) the evidence's inherent probative value; (2) its

potential to impress the jury in some irrational but indelible way; (3) the

amount of time the proponent needs to develop the evidence; and (4) the

proponent's need for the evidence. Peters v. State, 93 S.W.3d 347, 351 (Tex.

App. Houston 14th Dist. 2002, no pet.) (citing Wheeler v. State, 67 S.W.3d

879, 888 (Tex. Crim. App. 2002); Montgomery v. State, 810 S.W.2d 372,

389-90 (Tex. Crim. App. 1990) (opinion on reh'g)).

          v. The trial court abused their discretion in not allowing
             material evidence—which was both relevant and probative
             to be introduced to the jury.
       How the evidence was obtained in this case was a material fact—

which went directly to an element of the offense—namely the per se

intoxication of persons with a blood alcohol content of .08 or higher.

Denying admission of the facts related to the blood draw, namely the facts

regarding implied consent and exigent circumstances denied Appellant the

opportunity to present a defense, and the opportunity to squarely put in front

of the jury the issues to be decided in the Art. 38.23 instruction. First, this

evidence had inherent probative value, not only to the Art. 38.23 motion, but

to the issue of per se intoxication, which was used to convict Appellant.

Second, this evidence would not have impressed the jury in an irrational, but
                                    Page 68 of 72
	  
indelible way—and certainly would not have confused the jury as argued by

the State. As this Court is aware, prosecutors have long used both implied

consent and mandatory blood draw terminology in their presentation of the

case to convict.          Third, very little time was needed to present this

information, and this same amount of time was used—outside of the

presence of the jury—to make an offer of proof. And finally, as stated

above, this evidence was material, going directly to the heart of one of the

elements of the offense. Defendant’s need for it was striking.

               vi. Conclusion
            Under the Fourteenth Amendment of the United States Constitution,

       and under Art I, § 10, of the Texas Constitution, Appellant was denied the

       right to present a defense and denied due process of law when The trial

       court erred and Appellant was harmed when the trial court denied

       Appellant the right to present the totality of the legal evidence raising an

       issue of material fact, which was an element of the offense, and, which—in

       turn—allowed the State to admit evidence, obtained in violation of the

       Constitutions and laws of the United States of America and the State of

       Texas, against Appellant at trial. As a result, Appellant prays that this

       Court reverse the Judgment and Sentence for Driving While Intoxicated,

       and remand this case back to the trial court for a new trial. See Tex. Code


                                         Page 69 of 72
	  
       Crim. Proc. Art 44.25 (2015) and Tex. R. App. Proc. 43(d) (2015).

         IX.       Conclusion and Prayer
               For the above reasons, Appellant prays that upon appellate

       review, this Court of Appeals reverse the Judgment of Conviction and

       Sentence (Jury Trial) entered and imposed by the trial court in cause

       number 2012-1-0206, suppress all evidence seized in this case, including

       the blood evidence, and remand the case back to the trial court for

       further proceedings consistent with the opinion of this Court.

                                     Respectfully submitted,

                                     /s/ John Hunter Smith
                                     John Hunter Smith
                                     SBN: 24028393

                                     Wynne & Smith
                                     707 W. Washington
                                     Sherman, Texas 75092
                                     Tel. (903)-893-8177
                                     Fax (903)-892-0916


                                     _______________________
                                     Kristin R. Brown
                                     SBN: 24081458

                                     Law Office Of Kristin R. Brown, PLLC
                                     18208 Preston Road, Suite D9375
                                     Dallas, Texas 75252
                                     Tel. (214)-446-3909
                                     Fax (214)-481-4868

                                     Attorneys For Appellant

                                         Page 70 of 72
	  
       X. Certificate of Service
          This is to certify that a copy of this brief has been emailed to Ms.

Karla Baugh-Hackett, Grayson County District Attorney’s Office, 200 S.

Crockett, Sherman, Texas 75090 on the 4th day of May, 2015, by email to

baughk@co.grayson.tx.us.

                                   __________________________
                                   John Hunter Smith
                                   Kristin R. Brown




                                      Page 71 of 72
	  
       XI. Certificate of Compliance with Tex. Rule App. Proc. 9.4

         Under Texas Rule of Appellate Procedure 9.4, this certifies that this

document complies with the type volume limitations because it is computer

generated and does not exceed 15,000 words. Using the word-count feature

of Microsoft Word, the undersigned certifies that this document contains

13,877 words in the entire document except in the following sections:

caption, identity of parties and counsel, statement regarding oral argument,

table of contents, index of authorities, statement of the case, statement of

issues presented, statement of jurisdiction, statement of procedural history,

signature, proof of service, certification, certificate of compliance, and

appendix. This document also complies with the typeface requirements

because it has been prepared in a proportionally-spaced typeface using

Microsoft Word in 14-point font.



                                  /s/ Kristin R. Brown
                                  ________________________________
                                  Kristin R. Brown
                                  John Hunter Smith




                                     Page 72 of 72
	  
