                                                                               PD-0577-15
                        PD-0577-15                           COURT OF CRIMINAL APPEALS
                                                                              AUSTIN, TEXAS
                                                             Transmitted 5/12/2015 1:06:36 PM
                      No.____________                          Accepted 5/12/2015 4:23:47 PM
                                                                               ABEL ACOSTA
                                                                                       CLERK
                                In the
                      Court of Criminal Appeals
                      
                        No. 01-12-01001-CR
  In the Court of Appeals for the First District of Texas at Houston
                      
                            No. 1309538
                   th
         In the 339 District Court of Harris County, Texas
                      
                  ANTONIO RUIZ PEREZ
                              Appellant
                                 V.
                  THE STATE OF TEXAS
                         Appellee
                     
STATE’S PETITION FOR DISCRETIONARY REVIEW
                     

                                              DEVON ANDERSON
                                              District Attorney
                                              Harris County, Texas

                                              ERIC KUGLER
                                              Assistant District Attorney
                                              Harris County, Texas
   May 12, 2015                               TBC No. 796910

                                              NATHAN MOSS
                                              Assistant District Attorney
                                              Harris County, Texas

                                              1201 Franklin, Suite 600
                                              Houston, Texas 77002
                                              Tel.: 713-755-5826
                                              FAX: 713-755-5809

                                              Counsel for Appellee

                ORAL ARGUMENT REQUESTED
       IDENTITY OF JUDGE, PARTIES, AND COUNSEL


Counsel for the State:

      Devon Anderson  District Attorney of Harris County

      Eric Kugler  Assistant District Attorney on appeal

      Nathan Moss; James Reed  Assistant District Attorneys at trial

Appellant or criminal defendant:

      Antonio Ruiz Perez

Counsel for Appellant:

      Joseph Salhab  Counsel on appeal

      Jon Jaworski  Counsel at trial

Trial Judge:

      Hon. J. Michael Wilkinson  Presiding Judge




                                   i
                                        TABLE OF CONTENTS

IDENTITY OF JUDGE, PARTIES, AND COUNSEL...............................................i

INDEX OF AUTHORITIES .................................................................................... iii

STATEMENT REGARDING ORAL ARGUMENT ................................................. v

STATEMENT OF THE CASE..................................................................................vi

STATEMENT OF PROCEDURAL HISTORY ........................................................vi

STATEMENT OF FACTS ......................................................................................... 1

GROUNDS FOR REVIEW ....................................................................................... 2

   A. The lower court erred in finding that the challenge to the blood draw was
   preserved for appellate review because the appellant did not timely raise the
   warrant issue during the suppression hearing and never presented evidence of the
   lack of a search warrant. .........................................................................................2

   B. The lower court erred in reversing the conviction based on State v.
   Villarreal, PD-0306-14, 2014 WL 6734178 (Tex. Crim. App. Nov. 26, 2014),
   because this Court has granted rehearing in that case............................................2

   C. The lower court erred in finding a constitutional violation in the blood draw
   when the officer made a reasonable mistake of law under Heien v. N. Carolina,
   135 S. Ct. 530 (U.S. 2014). ....................................................................................2

ARGUMENT ............................................................................................................. 2

PRAYER FOR RELIEF ........................................................................................... 12

CERTIFICATE OF SERVICE AND COMPLIANCE............................................. 13




                                                           ii
                                    INDEX OF AUTHORITIES


CASES

Amador v. State,
 221 S.W.3d 666 (Tex. Crim. App. 2007) ................................................................6

Aviles v. State,
  385 S.W.3d 110 (Tex. App.—
  San Antonio 2012, pet. ref’d) ......................................................................... 10, 11

Beeman v. State,
  86 S.W.3d 613 (Tex. Crim. App. 2002).......................................................... 10, 11
Bell v. State,
  928 S.W.2d 566 (Tex. Crim. App. 1996) ................................................................8
Evans v. State,
  14-13-00642-CR, 2015 WL 545702 (Tex. App.—
  Houston [14th Dist.] Feb. 10, 2015, no. pet. h.) ..................................................10
Gore v. State,
 451 S.W.3d 182 (Tex. App.—
 Houston [1st Dist.] 2014, pet. filed) ................................................................. 9, 11
Heien v. North Carolina,
 135 S.Ct. 530 (2014) ................................................................................3, 8, 9, 11
Missouri v. McNeely,
 133 S.Ct. 1552 (2013) ........................................................................................2, 9

Perez v. State,
  01-12-01001-CR, 2014 WL 943126 (Tex. App.—
  Houston [1st Dist.] Mar. 11, 2014, no pet.) ...................................................... vi, 3

Perez v. State,
  01-12-01001-CR, 2015 WL 1245469 (Tex. App.—
  Houston [1st Dist.] Mar. 17, 2015, pet. filed) ...................................................... vi

Phillips v. Bramlett,
  288 S.W.3d 876 (Tex. 2009)...................................................................................7


                                                        iii
Russell v. State,
  717 S.W.2d 7 (Tex. Crim. App. 1986) ....................................................................6

State v. Neesley,
  239 S.W.3d 780 (Tex. Crim. App. 2007) ........................................................ 10, 11

State v. Villarreal,
  PD-0306-14, 2014 WL 6734178 (Tex. Crim. App. Nov. 26, 2014).......................7

United States v. Riddle,
 5 Cranch 311, 3 L.Ed. 110 (1809) ..........................................................................8




STATUTES

TEX. TRANSP. CODE § 724.012(b) (West 2010) ..........................................................9
TEX. TRANSP. CODE § 724.012(b)(3)(A) (West 2010)................................................9
TEX. TRANSP. CODE § 724.012(b)(3)(B) (West 2010) .............................................. 11




RULES

TEX. R. APP. P. 33.1(a) ................................................................................................6
TEX. R. APP. P. 49.5 .................................................................................................. vi

TEX. R. APP. P. 66.3 ....................................................................................................3

TEX. R. APP. P. 68.2 .................................................................................................. vi

TEX. R. APP. P. 68.4 (c) ...............................................................................................v




                                                           iv
               STATEMENT REGARDING ORAL ARGUMENT

      Pursuant to TEX. R. APP. P. 68.4 (c), the State requests oral argument because

the substantive issues in this case could affect a large number of DWI blood-draw

cases throughout the State, and oral argument may help to further clarify the

factual and legal issues.




                                         v
TO THE HONORABLE COURT OF CRIMINAL APPEALS OF TEXAS:


                         STATEMENT OF THE CASE

      The appellant was charged with driving while intoxicated as a third offender

(CR – 10).    A jury found him guilty, and the trial court thereafter assessed

punishment at 25 years in prison (CR – 309, 313).




                 STATEMENT OF PROCEDURAL HISTORY

      The court of appeals originally affirmed the conviction, finding that the

appellant had failed to preserve his blood search warrant issue. Perez v. State, 01-

12-01001-CR, 2014 WL 943126 (Tex. App.—Houston [1st Dist.] Mar. 11, 2014,

no pet.) (attached as Appendix A). But the appellant filed a motion for rehearing,

and the lower court reversed the conviction, finding that the issue was preserved.

Perez v. State, 01-12-01001-CR, 2015 WL 1245469, at *1 (Tex. App.—Houston

[1st Dist.] Mar. 17, 2015, pet. filed) (attached as Appendix B). The State filed a

further motion for rehearing under TEX. R. APP. P. 49.5, which was denied on April

14. This petition for discretionary review is timely if filed on or before May 14,

2015. TEX. R. APP. P. 68.2.




                                         vi
                             STATEMENT OF FACTS

      At around 11:52 p.m. on June 10, 2011, Brian McCandless with the Humble

Police Department was on patrol when he saw a red Corvette weaving through the

lanes on a highway (RR. V – 22-24, 66) (St. Ex. 7). He followed the vehicle for a

couple of miles, and observed that it continually swerved within its lane, which is a

sign of intoxication (RR. V – 25-26).        McCandless turned on his emergency

equipment to stop the Corvette, which exited the highway and stopped in a moving

lane of traffic (RR. V – 32-33, 35, 41) (St. Ex. 6).

      McCandless walked up to the Corvette, saw that the appellant was driving,

and noticed a strong odor of alcohol coming from the vehicle (RR. V – 42). The

appellant admitted to drinking starting at 7:00 p.m., but he could not remember

how many drinks he had ingested (RR. V – 43, 54-55). The officer administered

the horizontal gaze nystagmus test to the appellant, and the appellant showed signs

of intoxication (RR. V – 44-48).        But the appellant refused to perform any

additional tests (RR. V – 52). He also refused to provide a breath specimen, which

lead to a suspension of his license (RR. V – 64-65) (St. Ex. 7).

      Officer McCandless asked his dispatch for the appellant’s criminal history,

and he was able to verify that the appellant had at least two prior DWI convictions

(RR. V – 66, 81) (St. Ex. 11). Therefore, the officer was required to obtain a

specimen from the appellant in order to determine his level of intoxication (RR. V
– 85-87).       The Supreme Court had not yet issued its opinion in Missouri v.

McNeely, 133 S.Ct. 1552 (2013), so Officer McCandless believed that he was

required and authorized to obtain the appellant’s blood based on Section 724.012

of the Texas Transportation Code (RR. V – 75). Blood was drawn from the

appellant at a hospital at 1:20 a.m. on June 11, and testing of it revealed that his

blood-alcohol level was 0.17, more than twice the legal limit (RR. V – 162-163)

(St. Ex. 10).


                             GROUNDS FOR REVIEW

      A.        The lower court erred in finding that the challenge to    the
                blood draw was preserved for appellate review because     the
                appellant did not timely raise the warrant issue during   the
                suppression hearing and never presented evidence of       the
                lack of a search warrant.

      B.        The lower court erred in reversing the conviction based on
                State v. Villarreal, PD-0306-14, 2014 WL 6734178 (Tex.
                Crim. App. Nov. 26, 2014), because this Court has granted
                rehearing in that case.
      C.        The lower court erred in finding a constitutional violation in
                the blood draw when the officer made a reasonable mistake
                of law under Heien v. N. Carolina, 135 S. Ct. 530 (U.S. 2014).

                                    ARGUMENT

      This petition for discretionary review should be granted because the analysis

used by the court of appeals has so far departed from the accepted and usual course

of judicial proceedings so as to call for an exercise of this Court’s power of



                                           2
supervision. TEX. R. APP. P. 66.3. Specifically, the court of appeals originally

recognized that the issue was not preserved for appellate review, but then reversed

itself on rehearing despite the fact that the appellant did not timely raise the

warrant issue during the suppression hearing and never presented evidence of the

lack of a search warrant. Furthermore, the court of appeals based its holding on an

opinion from this Court that has been granted a rehearing. Finally, the court of

appeals failed to consider the implications of Heien v. N. Carolina, 135 S. Ct. 530

(U.S. 2014), where the officer in this case made a reasonable mistake of law in

obtaining the blood sample.

      The court of appeals initially held that the appellant had not preserved his

search warrant issue for appellate review. Perez, 2014 WL 943126 at *7. On

rehearing, however, the court of appeals held that the issue was preserved partly

because the appellant filed a boilerplate pre-trial motion to suppress, which

claimed that the evidence was not obtained “pursuant to a search warrant, was

absent exigent circumstances, and made without probable cause to believe the

Accused was engaged in criminal activity or that such evidence, if any, was in

danger of being destroyed.” Perez, 2015 WL 1245469 at *1. This written motion

was eight pages long, was filed almost one year prior to trial, and contained,

according to the appellant’s own count, at least fifteen different bases for

suppression (CR – 11-18). Moreover, the appellant never obtained a ruling on this



                                        3
written motion to suppress, which was not even mentioned during the suppression

hearing (CR – 18). Rather, the motion to suppress was an oral motion made at the

end of the hearing (RR. IV – 52).

      The trial court held a suppression hearing during which Officer McCandless

was the sole witness (CR – 11) (RR. IV – 10). McCandless’s testimony was

limited to the reasonable suspicion for the traffic stop, which appears to have been

the agreed-upon basis for the motion because the appellant cross-examined him

solely on that issue and requested only that “the court suppress the arrest as well as

the video.” (RR. IV – 39-52). The trial court denied the appellant’s oral motion to

suppress and asked that the appellant be arraigned outside the presence of the jury

(RR. IV – 52).

      After the trial court had denied the oral motion to suppress, the appellant

made an additional objection to the admission of “anything dealing with the blood

tests” as follows:

             On the record, I am making an objection to the mention, to the
      admission, to any reference to the blood test, taking results or
      anything dealing with the blood test of my client, Antonio Perez,
      based on the failure of the state to get a warrant for the blood taking
      under the Statute 725, I believe it is, 12(B). There is no authority for
      the officer to take the blood of my client without a warrant, and that is
      what he did in this case.

             My client was under arrest. He invoked his right to counsel
      prior to the taking of – or the request for the blood. He refused to do
      the request for blood and breath. He was taken to the hospital.



                                          4
                The form that the officer filled out which is the THP-51 form is
         the old form. It does not have anything in there except that the officer
         has to reasonably believe and check one of these boxes that there was
         an accident with death, serious bodily injury or hospital treatment for
         bodily injury; two, that there was a DWI with a minor child under 15;
         three, prior convictions for specific offense and four, the DWI third
         which he was supposed to check one of those boxes which he didn’t
         do it.

                In this case, he used this authority to withdraw blood against
         my client’s consent and denied him of his constitutional right of
         illegal search and seizure in this case, the illegal search and seizure by
         the police in this case.

                He didn’t follow the statutory authority that required him to in
         this particular case to have a warrant before he withdrew the blood
         from my client; and on that basis, we are asking the court to suppress
         or deny the blood taking, mentioning of the blood or any aspects of a
         blood test in this case.

(RR. IV – 52-54). Thus, the appellant appeared to argue that McCandless failed

comply with the statute because he did not check the appropriate box on the THP-

51 form and that he was therefore required to obtain a warrant (RR. IV – 53). The

State responded that “the THP-51 form is merely a form with regard to liability,”

and that McCandless properly complied with the “controlling part of the

Transportation Code [] 724.012.” (RR. IV – 54). The appellant countered that “a

mandatory warrant would be the only way that they could withdraw blood in this

case,” and affirmed that he was specifically referring to “724.012(B)(3)(B).” (RR.

IV – 55). The trial court then denied the appellant’s additional oral motion (RR. IV

– 55).



                                             5
      The defendant in a criminal proceeding who alleges a Fourth Amendment

violation bears the burden of producing some evidence that rebuts the presumption

of proper police conduct. Amador v. State, 221 S.W.3d 666, 672 (Tex. Crim. App.

2007) (citing Russell v. State, 717 S.W.2d 7, 9 (Tex. Crim. App. 1986) (“When a

defendant seeks to suppress evidence on the basis of a Fourth Amendment

violation, this Court has placed the burden of proof initially upon the defendant ...

[who] must produce evidence that defeats the presumption of proper police

conduct and therefore shifts the burden of proof to the State.”) (citations omitted)).

“A defendant meets his initial burden of proof by establishing that a search or

seizure occurred without a warrant.” Id. The burden then shifts to the State to

prove that the search or seizure was nonetheless reasonable under the totality of the

circumstances. Id., 221 S.W.3d at 672-73.

      In the present case, because the suppression hearing dealt only with the issue

of reasonable suspicion for the traffic stop, there was no evidence that the search

occurred without a warrant. Therefore, the State never had the burden of proof to

show reasonableness, and the issue was never joined or preserved for appellate

review. Furthermore, by laying behind the log during the suppression hearing and

failing to correct the mistaken impressions of the prosecutor and the trial court

regarding the basis for the suppression, the appellant failed to preserve the issue for

appellate review. See TEX. R. APP. P. 33.1(a) (“As a prerequisite to presenting a



                                          6
complaint for appellate review, the record must show that: (1) the complaint was

made to the trial court by a timely request, objection, or motion that: (A) stated the

grounds for the ruling that the complaining party sought from the trial court with

sufficient specificity to make the trial court aware of the complaint, unless the

specific grounds were apparent from the context…”) (emphasis added); Phillips v.

Bramlett, 288 S.W.3d 876, 882-83 (Tex. 2009) ( “the asserted error was not

preserved because the trial court’s response indicated that it did not understand the

objection, and counsel made no further attempt to clarify the court’s understanding

or obtain a ruling on his objection.”).    Therefore, the court of appeals erred in

reversing itself on the issue of preservation. This Court should assure the court of

appeals that its original opinion was correct and affirm the conviction.

      In its opinion on rehearing, the court of appeals relied primarily upon State v.

Villarreal, PD-0306-14, 2014 WL 6734178 (Tex. Crim. App. Nov. 26, 2014), for

the proposition that the warrantless taking of the appellant’s blood sample violated

his Fourth Amendment rights. Perez, 2015 WL 1245469, at *6. But this Court has

granted rehearing in that case, which was decided by a five to four vote.

Therefore, because Villarreal guided so much of the lower court’s opinion on

rehearing, this Court should reverse, remand, or affirm the case depending on the

ultimate outcome of Villarreal. See, e.g., Bell v. State, 928 S.W.2d 566 (Tex. Crim.




                                          7
App. 1996) (“At the time of its opinion, this Court’s opinion in Clewis…had been

handed down but was not yet final, as rehearing was pending.”) (emphasis added).

      Whatever the ultimate holding in Villarreal, the court of appeals erred in

finding that the blood draw violated the constitution when Officer McCandless

made a reasonable mistake of law. In Heien v. North Carolina, 135 S.Ct. 530

(2014), a police officer pulled over a vehicle because one brake light was out on

the vehicle and he believed the statute at issue required two working brake lights.

Id., 135 S.Ct. at 534. During a subsequent search based on the suspicious behavior

of the occupants, the officer found cocaine in the vehicle. Id. The trial court denied

the appellant’s motion to suppress, but the North Carolina Court of Appeals

reversed, holding that the statute only required one working brake light. Id.

      The United States Supreme Court granted review in Heien and held in an

eight-to-one majority opinion that the search was reasonable because suspicion can

be based on a reasonable mistake of law as well as a reasonable mistake of fact.

Id., 135 S.Ct. at 536. The Court traced this principal back to its earliest days when

Justice Marshall declared “A doubt as to the true construction of the law is as

reasonable a cause for seizure as a doubt respecting the fact.” United States v.

Riddle, 5 Cranch 311, 313, 3 L.Ed. 110 (1809). The concurring opinion clarified

that the law at issue must be so doubtful in construction “that a reasonable judge




                                          8
could agree with the officer’s view.” Heien, 135 S.Ct. at 541 (Kagan, J.,

concurring).

      In the present case, numerous reasonable judges have agreed with Officer

McCandless’s interpretation of the statute at issue.      Section 724.012 of the

Transportation Code provides in part that 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 [DWI] and the person refuses the

officer’s request to submit to the taking of a specimen voluntarily.” TEX. TRANSP.

CODE § 724.012(b) (West 2010) (emphasis added).           One of the enumerated

circumstances is having two prior DWI convictions. TEX. TRANSP. CODE §

724.012(b)(3)(A) (West 2010). But the text of the statute does not independently

allow for the taking of a blood sample. Rather, it simply requires the taking of a

sample in certain enumerated instances. In light of Missouri v. McNeely, 133 S.Ct.

1552, 1558 (2013), the officer is still required to obtain the sample through

constitutionally permissible means. Gore v. State, 451 S.W.3d 182, 189 (Tex.

App.—Houston [1st Dist.] 2014, pet. filed) (“While the statute does make a blood

draw without consent mandatory in certain circumstances, it does not mandate a

blood draw without a warrant.”).

      In the present case, Officer McCandless apparently believed that Section

724.012 allowed him to obtain the blood sample without a search warrant (RR. V –



                                         9
75). Thus, he was operating under a mistake of law when he obtained the sample

without a search warrant or a recognized exception to a search warrant.

Nevertheless, it was a reasonable mistake of law because many reasonable judges,

including those on this Court, have interpreted Section 724.012 as a sufficient

independent authorization for obtaining a sample. See Beeman v. State, 86 S.W.3d

613, 616 (Tex. Crim. App. 2002) (“implied consent statutes do not prevent the

State from obtaining evidence by alternative constitutional means”); State v.

Neesley, 239 S.W.3d 780, 786 (Tex. Crim. App. 2007) (“We hold that in cases

which satisfy the conditions for mandatory taking of a specimen under

§724.012(b), a peace officer is required to take one specimen of breath or blood

and is permitted to take no more than one specimen) (emphasis added); Aviles v.

State, 385 S.W.3d 110, 116 (Tex. App.—San Antonio 2012, pet. ref’d), vacated,

134 S.Ct. 902 (2014) (“the warrantless seizure of Aviles’s blood was conducted

according to the prescriptions of the Transportation Code, and without violating

Aviles’s Fourth Amendment rights.”). Therefore, under Heien, the search in the

present case was reasonable and should have been upheld by this Court.

      In Evans v. State, 14-13-00642-CR, 2015 WL 545702 (Tex. App.—Houston

[14th Dist.] Feb. 10, 2015, no. pet. h.) (not designated for publication), another

court of appeals rejected an argument under Heien because the officer in that case

took the blood sample “in accordance with the exact language of the mandatory



                                       10
blood draw provision. Because Trooper Robinson did not misinterpret the statute,

there can be no mistake of law defense.” Id., 2015 WL 545702 at *4 n.5. But the

Evans court misstated the relevant statute. The Evans court stated that the “implied

consent statute does not authorize a blood draw, without [] consent, unless the

mandatory blood draw provisions of Section 724.012(b) are implicated.” Id., 2015

WL 545702 at *4. But the text of Section 724.012(b) does not authorize anything.

It requires the taking of a sample, but says nothing about the authority to take it.

TEX. TRANSP. CODE § 724.012(b)(3)(B) (West 2010). Moreover, such a view of

Section 724.013(b) flies in the face of the lower court’s holding that “While the

statute does make a blood draw without consent mandatory in certain

circumstances, it does not mandate a blood draw without a warrant.” Gore, 451

S.W.3d at 189. Therefore, Evans was based on a faulty reading of the statute, and

its conclusion is invalid.

      The trial court did not abuse its discretion in denying the appellant’s motion

to suppress because Officer McCandless was operating under a reasonable mistake

of the law when he obtained the appellant’s blood sample. See Heien, 135 S.Ct.

530; see also Beeman, 86 S.W.3d at 616; Neesley, 239 S.W.3d at 786; Aviles, 385

S.W.3d at 116. Therefore, the trial court’s decision should have been affirmed.

This Court should grant the State’s petition and correct the most recent opinion by

the lower court of appeals in this case.



                                           11
                             PRAYER FOR RELIEF

      It is respectfully requested that this petition should be granted and that the

court of appeals should be reversed.

                                                  DEVON ANDERSON
                                                  District Attorney
                                                  Harris County, Texas

                                                  /s/ Eric Kugler
                                                  ERIC KUGLER
                                                  Assistant District Attorney
                                                  Harris County, Texas
                                                  1201 Franklin, Suite 600
                                                  Houston, Texas 77002
                                                  (713) 755-5826
                                                  kugler_eric@dao.hctx.net
                                                  TBC No. 796910




                                          12
             CERTIFICATE OF SERVICE AND COMPLIANCE

        This is to certify that: (a) the word count function of the computer program
used to prepare this document reports that there are 2,831 words in the relevant
sections; and (b) a copy of the foregoing instrument will be served by
efile.txcourts.gov to:

      Joseph Salhab                       Lisa McMinn
      Attorney at Law                     State Prosecuting Attorney
      2028 Buffalo Terrace                P.O. Box 13046
      Houston, Texas 77019                Austin, Texas 78711
      josephsalhab@mindspring.com         Lisa.McMinn@SPA.texas.gov


                                                /s/ Eric Kugler
                                                ERIC KUGLER
                                                Assistant District Attorney
                                                Harris County, Texas
                                                1201 Franklin, Suite 600
                                                Houston, Texas 77002
                                                (713) 755-5826
                                                TBC No. 796910

Date: January 22, 2015




                                        13
14
                     Appendix A

                   Perez v. State,
          01-12-01001-CR, 2014 WL 943126
(Tex. App.—Houston [1st Dist.] Mar. 11, 2014, no pet.)
Only the Westlaw citation is currently available.


NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS.
UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.


                                                 Court of Appeals of Texas,
                                                     Houston (1st Dist.).
                                               Antonio Ruiz PEREZ, Appellant
                                                             v.
                                               The STATE of Texas, Appellee.


                                                    No. 01–12–01001–CR.
                                                      March 11, 2014.


Background: Following denial of his motion to suppress evidence, defendant was convicted, in the 339th District Court,
Harris County, Maria T. Jackson, J., of driving while intoxicated (DWI), third offense, and sentence of twenty-five years’
confinement was imposed. Defendant appealed.


Holdings: The Court of Appeals, Evelyn V. Keyes, J., held that:
(1) arresting officer had probable cause to support warrantless arrest of defendant for DWI, and
(2) warrantless taking of defendant’s blood sample following his DWI arrest did not violate defendant’s Fourth Amendment
rights, as defendant’s consent to taking of blood sample was implied pursuant to applicable provision of implied consent law.


    Affirmed.


                                                      West Headnotes


[1] Criminal Law 110         1139


110 Criminal Law
   110XXIV Review
       110XXIV(L) Scope of Review in General
         110XXIV(L)13 Review De Novo
             110k1139 k. In general. Most Cited Cases


Criminal Law 110         1158.12


110 Criminal Law
   110XXIV Review
       110XXIV(O) Questions of Fact and Findings
         110k1158.8 Evidence
             110k1158.12 k. Evidence wrongfully obtained. Most Cited Cases


    When reviewing a trial court’s denial of a motion to suppress, the appellate court gives almost total deference to a trial
court’s express or implied determinations of historical facts, while reviewing de novo the court’s application of the law of
search and seizure to those facts.
                                                              b
[2] Criminal Law 110         1144.12


110 Criminal Law
   110XXIV Review
       110XXIV(M) Presumptions
         110k1144 Facts or Proceedings Not Shown by Record
             110k1144.12 k. Reception of evidence. Most Cited Cases


     An appellate court reviewing a trial court’s ruling on a motion to suppress views the evidence in the light most favorable
to the trial court’s ruling.


[3] Criminal Law 110         392.54


110 Criminal Law
   110XVII Evidence
       110XVII(I) Competency in General
         110k392.1 Wrongfully Obtained Evidence
             110k392.54 k. Trial judge as sole arbiter of credibility. Most Cited Cases


     At a hearing on a motion to suppress, the trial court is the sole trier of fact and judge of credibility of the witnesses and
the weight to be given to their testimony, and the trial court may choose to believe or disbelieve any part or all of a witness’s
testimony.


[4] Criminal Law 110         1134.49(4)


110 Criminal Law
   110XXIV Review
       110XXIV(L) Scope of Review in General
         110XXIV(L)4 Scope of Inquiry
             110k1134.49 Evidence
               110k1134.49(4) k. Illegally obtained evidence. Most Cited Cases


    The appellate court sustains the trial court’s ruling on a motion to suppress only if it is reasonably supported by the
record and correct on any theory of law applicable to the case.


[5] Automobiles 48A         349(6)


48A Automobiles
   48AVII Offenses
      48AVII(B) Prosecution
        48Ak349 Arrest, Stop, or Inquiry; Bail or Deposit
           48Ak349(2) Grounds
              48Ak349(6) k. Intoxication. Most Cited Cases


    Arresting officer had probable cause to believe that defendant committed offense of driving while intoxicated (DWI), as
necessary to support warrantless arrest of defendant for DWI, where officer observed defendant commit a moving violation
                                                                c
by failing to maintain his lane, defendant stopped vehicle in an unsafe location when officer initiated traffic stop, officer
smelled strong odor of alcohol and defendant admitted he had been drinking alcoholic beverages, defendant was unsteady on
his feet when he complied with officer’s request to exit vehicle, defendant failed only field sobriety test to which he
submitted, the horizontal gaze nystagmus (HGN) test, and defendant failed to submit to other field sobriety testing or provide
a blood or breath sample. U.S.C.A. Const.Amend. 4.


[6] Arrest 35      63.4(13)


35 Arrest
   35II On Criminal Charges
       35k63 Officers and Assistants, Arrest Without Warrant
          35k63.4 Probable or Reasonable Cause
             35k63.4(13) k. Personal knowledge or observation in general. Most Cited Cases


    Warrantless arrest for an offense committed in the officer’s presence is reasonable if the officer has probable cause.
U.S.C.A. Const.Amend. 4.


[7] Arrest 35      63.4(2)


35 Arrest
   35II On Criminal Charges
       35k63 Officers and Assistants, Arrest Without Warrant
          35k63.4 Probable or Reasonable Cause
             35k63.4(2) k. What constitutes such cause in general. Most Cited Cases


Arrest 35       63.4(4)


35 Arrest
   35II On Criminal Charges
       35k63 Officers and Assistants, Arrest Without Warrant
          35k63.4 Probable or Reasonable Cause
             35k63.4(4) k. Time of existence; after-acquired information. Most Cited Cases


     Probable cause for a warrantless arrest exists if, at the moment the arrest is made, the facts and circumstances within the
arresting officer’s knowledge and of which he has reasonably trustworthy information are sufficient to warrant a prudent man
in believing that the person arrested had committed or was committing an offense. U.S.C.A. Const.Amend. 4.


[8] Arrest 35      63.4(2)


35 Arrest
   35II On Criminal Charges
       35k63 Officers and Assistants, Arrest Without Warrant
          35k63.4 Probable or Reasonable Cause
             35k63.4(2) k. What constitutes such cause in general. Most Cited Cases


Arrest 35       63.4(3)


                                                               d
35 Arrest
   35II On Criminal Charges
       35k63 Officers and Assistants, Arrest Without Warrant
          35k63.4 Probable or Reasonable Cause
             35k63.4(3) k. Suspicion or rumor. Most Cited Cases


   A finding of probable cause, as necessary to support warrantless arrest, requires more than bare suspicion, but less than
would justify conviction. U.S.C.A. Const.Amend. 4.


[9] Arrest 35      63.4(2)


35 Arrest
   35II On Criminal Charges
       35k63 Officers and Assistants, Arrest Without Warrant
          35k63.4 Probable or Reasonable Cause
             35k63.4(2) k. What constitutes such cause in general. Most Cited Cases


     Test for probable cause to support a warrantless arrest is objective, is unrelated to the subjective beliefs of the arresting
officer, and requires a consideration of the totality of the circumstances facing the arresting officer. U.S.C.A. Const.Amend.
4.


[10] Searches and Seizures 349         192.1


349 Searches and Seizures
   349VI Judicial Review or Determination
       349k192 Presumptions and Burden of Proof
         349k192.1 k. In general. Most Cited Cases


    Once a defendant alleging a Fourth Amendment violation has carried his initial burden of producing some evidence
rebutting the presumption of proper police conduct, such as by establishing that a seizure occurred without a warrant, then the
burden shifts to the State to prove that the seizure was nonetheless reasonable. U.S.C.A. Const.Amend. 4.


[11] Automobiles 48A         419


48A Automobiles
   48AIX Evidence of Sobriety Tests
      48Ak417 Grounds for Test
        48Ak419 k. Grounds or cause; necessity for arrest. Most Cited Cases


     Warrantless taking of defendant’s blood sample, following his arrest for driving while intoxicated (DWI), did not violate
defendant’s Fourth Amendment rights by requiring him to submit to a warrantless blood test without his consent, as
defendant’s consent to the taking of a blood sample was implied pursuant to provision of implied consent law requiring the
state to obtain a blood or breath sample from an individual arrested for DWI if the arresting officer has reliable information
that the individual has two or more previous DWI convictions; officer validly arrested defendant for DWI, and officer had
obtained reliable information from police station dispatch that defendant had at least two prior DWI convictions prior to
taking defendant to hospital for blood draw. U.S.C.A. Const.Amend. 4; V.T.C.A., Transportation Code § 724.012(b)(3)(B).


                                                                e
[12] Searches and Seizures 349         14


349 Searches and Seizures
   349I In General
       349k13 What Constitutes Search or Seizure
         349k14 k. Taking samples of blood, or other physical specimens; handwriting exemplars. Most Cited Cases


    The taking of a blood specimen is a search and seizure under the Fourth Amendment. U.S.C.A. Const.Amend. 4.


[13] Searches and Seizures 349         24


349 Searches and Seizures
   349I In General
       349k24 k. Necessity of and preference for warrant, and exceptions in general. Most Cited Cases


    A warrantless search or seizure is per se unreasonable, unless it falls under a recognized exception to the warrant
requirement. U.S.C.A. Const.Amend. 4.


[14] Searches and Seizures 349         171


349 Searches and Seizures
   349V Waiver and Consent
       349k171 k. In general. Most Cited Cases


    One exception to the requirement that a search be supported by a warrant is a search that is conducted pursuant to
consent. U.S.C.A. Const.Amend. 4.


[15] Criminal Law 110        1043(3)


110 Criminal Law
   110XXIV Review
       110XXIV(E) Presentation and Reservation in Lower Court of Grounds of Review
         110XXIV(E)1 In General
             110k1043 Scope and Effect of Objection
               110k1043(3) k. Adding to or changing grounds of objection. Most Cited Cases


    Defendant who sought suppression of his blood test results in driving while intoxicated (DWI) prosecution waived
appellate review of his argument that portions of implied consent law were unconstitutional by failing to raise those specific
arguments before the trial court; although defendant argued before the trial court that the taking of his blood following his
DWI arrest violated his Fourth Amendment Rights by requiring him to submit to a warrantless blood test without consent,
defendant did not specifically argue that the implied consent statute was unconstitutional. U.S.C.A. Const.Amend. 4.


Joseph Salhab, Houston, for Appellant.


Devon Anderson, District Attorney, Eric Kugler, Assistant District Attorney, Houston, for Appellee.



                                                              f
Panel consists of Justices KEYES, HIGLEY, and MASSENGALE.


                                                         OPINION
EVELYN V. KEYES, Justice.
    *1 A jury convicted appellant, Antonio Ruiz Perez, of driving while intoxicated (“DWI”), third offense, and the trial
court assessed his punishment at twenty-five years’ confinement. In two points of error, appellant argues that the trial court
erred in denying his motion to suppress because: (1) the arresting officer lacked probable cause to arrest him without a
warrant and (2) the warrantless taking of his blood sample violated the Fourth Amendment under to Missouri v. McNeely.


    We affirm.


                                                         Background
     At approximately 11:50 p.m. on June 10, 2011, Officer B. McCandless observed a red Corvette failing to maintain a
single marked lane and followed it for several miles. After observing further unsafe driving, Officer McCandless initiated a
traffic stop, and the Corvette exited the highway and stopped in the outside lane of the service road. Upon approaching the
Corvette, Officer McCandless observed that appellant was the driver and that a strong odor of alcohol was coming from the
vehicle. Officer McCandless testified that appellant stated that he had been drinking, so he administered the horizontal gaze
nystagmus (HGN) test and determined that appellant showed signs of intoxication. Officer McCandless detained appellant
and decided to conduct additional sobriety testing in a safer environment. However, appellant refused to provide a breath
specimen.


    Pursuant to his detention of appellant, Officer McCandless obtained appellant’s criminal history through the station’s
dispatch system and determined that he had two prior DWI convictions. Officer McCandless then took appellant to a hospital
where appellant’s blood was drawn at approximately 1:20 a.m. on June 11. The blood test revealed that appellant had a blood
alcohol level of 0.17, more than twice the legal limit.


     At trial, appellant filed a general motion to suppress that did not specifically mention the blood draw but argued
generally that “[t]he acquisition of the evidence which the Government will offer in this cause was not pursuant to a search
warrant, was absent exigent circumstances, and made without probable cause to believe the Accused was engaged in criminal
activity or that such evidence, if any, was in danger of being destroyed.” Officer McCandless was the only witness at the
hearing on the motion to suppress. He testified that a little before midnight on June 10, 2011, he observed a red Corvette
“swerving and failing to maintain a single marked lane” in a manner that posed a danger to the surrounding vehicles. The
officer testified that based on his “past experience and the past arrests that [he] had made, just seeing the way that [the
Corvette driver] was acting, the time of night and the roadway that [they] were on, that led me to believe that he was possibly
intoxicated” or impaired by some means. Officer McCandless then initiated the traffic stop. Appellant cross-examined
Officer McCandless on the basis for his probable cause to initiate the traffic stop. Appellant then asked “that the court
suppress the arrest as well as the video.” The trial court denied the motion to suppress.


    *2 Appellant’s attorney then stated:


    On the record, I am making an objection to the mention, to the admission, to any reference to the blood test, taking
  results or anything dealing with the blood test of my client, [appellant], based on the failure of the State to get a warrant for
  the blood taking under the Statute 725, I believe it is, 12(b).


    There is no authority for the officer to take the blood of my client without a warrant, and that is what he did in this case.


    My client was under arrest. He invoked his right to counsel prior to the taking of—or the request for the blood. He


                                                                g
  refused to do the request for blood and breath. He was taken to the hospital.


      He further stated that the officer failed to fill out the “THP–51” form correctly because he did not check one of the boxes
and “he used this authority to withdraw blood against my client’s consent and denied him of his constitutional right of illegal
search and seizure in this case.” He went on to argue that Officer McCandless “didn’t follow the statutory authority that
required him to in this particular case to have a warrant before he withdrew the blood from my client.” Appellant asked the
trial court to suppress “any aspects of a blood test in this case.”


     The State responded that Transportation Code section 724.012 was the controlling authority in this case and that it did
not require that a search warrant be obtained if one of the listed criteria was met. The State also argued that the “THP–51
form is merely a form with regard to liability” and that “the officer’s testimony would be the best form of evidence as to this
case and why a mandatory blood draw was a necessity.” FN1 Appellant responded:


  Therefore, it will be the Constitution of the United States as well as the statutory laws of the State of Texas on the search
  and seizure law; and I don’t believe that the State has properly followed the law when they withdrew the blood here and the
  statutory and the constitutional law and case law regarding withdrawal of blood with a warrant. They didn’t obtain a
  warrant. This is a warrantless search while the person was in custody under arrest and while the person also invoked his
  right to counsel; and therefore, a mandatory warrant would be the only way that they could withdraw blood in this case.


    The trial court verified that the State was relying on Transportation Code section 724.012(b)(3)(B). It then denied
appellant’s motion to “suppress or deny the admission of the blood test.”


     At trial, Officer McCandless testified before the jury regarding his arrest of appellant for DWI. He testified again
regarding his observations that led him to initiate the traffic stop. He stated that when he made contact with appellant he
“could smell a strong odor of alcoholic beverage emitting from the vehicle.” He further testified that appellant “admitted to
having been drinking” and “could not remember how many he had to drink.” Officer McCandless also observed when
appellant exited the vehicle that appellant was “slightly unsteady” and “not balanced.” He testified that he then administered
the HGN test to appellant, which is a test “where we check the eyes and have them follow a stimulus or your finger with both
of their eyes to check to see if there is equal tracking, to check to see if there is any involuntary jerking or bouncing of the
eye.” Officer McCandless observed “a lack of smooth pursuit,” which indicated to him that appellant was intoxicated.


     *3 Rather than completing the remainder of the HGN test, he decided “to detain [appellant] to get us off of the roadway
for my safety and his.” Officer McCandless testified that he believed it would have been unsafe to administer the full battery
of field sobriety tests at the location where appellant stopped his vehicle because they were “in a moving lane of traffic,”
making it more likely that they could be struck by traffic exiting the nearby highway or driving along the service road. He
handcuffed appellant and placed him in the police vehicle to “take him back to [the] station to complete the standardized field
sobriety tests in a controlled environment.”


    However, upon returning to the station, appellant refused to complete any of the field sobriety tests. At that point, based
on appellant’s driving, “the strong odor of alcohol emitting from the vehicle, the time of night, the fact that he started
drinking at 7:00 and [could not] remember how many alcoholic beverages he had consumed,” Officer McCandless placed
appellant under arrest for suspicion of DWI and asked for a breath or blood specimen. He read appellant a statutory warning
advising that he was under arrest for DWI, that a refusal to submit a specimen would result in having his license taken away,
and that such a refusal could be used as potential evidence of guilt in any future proceedings. Appellant refused to give a
breath or blood sample and refused to sign the statutory warning.


    At that point, Officer McCandless asked the station’s dispatch to run appellant’s criminal history, and he discovered that
appellant had at least two prior DWI convictions. At trial, appellant stipulated, for jurisdictional purposes only, to the
                                                               h
existence of two prior DWI convictions. Officer McCandless testified that the two prior convictions satisfied the statutory
requirement for obtaining a mandatory blood specimen, stating, “At the time of the suspect’s arrest, I possessed or received
reliable information from a credible source that on two or more occasions the suspect had previously been convicted of or
placed on community supervision of an offense under [the appropriate sections of the] Texas Penal Code.” He transported
appellant to a local hospital where his blood was drawn at 1:20 a.m. on June 11,2011.


     Wesley Colwell, the nurse who drew appellant’s blood, testified regarding the procedure he employed to take appellant’s
blood sample. Dr. Jeff Walterscheid, the assistant chief toxicologist at the Harris County Institute of Forensic Sciences,
testified regarding the results of appellant’s blood test. He testified that appellant had a blood alcohol level of 0.17, which
was “roughly double” the legal limit.


    The jury convicted appellant of DWI and the trial court assessed his punishment at twenty-five years’ confinement. This
appeal followed.


                                                              Analysis
    Appellant argues that the trial court erred in failing to suppress the results of his blood draw.


A. Standard of Review
     *4 [1][2][3][4] We review a denial of a motion to suppress evidence for an abuse of discretion. Shepherd v. State, 273
S.W.3d 681, 684 (Tex.Crim.App.2008) (citing State v. Dixon, 206 S.W.3d 587, 590 (Tex.Crim.App.2006)). When we review
a trial court’s denial of a motion to suppress, we give “almost total deference to a trial court’s express or implied
determinations of historical facts [while] review[ing] de novo the court’s application of the law of search and seizure to those
facts.” Id. We view the evidence in the light most favorable to the trial court’s ruling. Wiede v. State, 214 S.W.3d 17, 24
(Tex.Crim.App.2007) (quoting State v. Kelly, 204 S.W.3d 808, 818 (Tex.Crim.App.2006)). The trial court is the “sole trier of
fact and judge of credibility of the witnesses and the weight to be given to their testimony.” St. George v. State, 237 S.W.3d
720, 725 (Tex.Crim.App.2007). The trial court may choose to believe or disbelieve any part or all of a witness’s testimony.
Green v. State, 934 S.W.2d 92, 98 (Tex.Crim.App.1996). We sustain the trial court’s ruling only if it is reasonably supported
by the record and correct on any theory of law applicable to the case. Laney v. State, 117 S.W.3d 854, 857
(Tex.Crim.App.2003).


B. Probable Cause to Arrest
     [5] In his first point of error, appellant argues that the trial court erred in denying his motion to suppress and admitting
his blood test results because the State did not show probable cause for his warrantless arrest for DWI.


     [6][7] The Fourth Amendment to the United States Constitution, which is made applicable to the states by the Due
Process Clause of the Fourteenth Amendment, guarantees that “[t]he right of the people to be secure in their persons ...
against unreasonable ... seizures, shall not be violated.” U.S. CONST. amends. IV, XIV; Amador v. State, 275 S.W.3d 872,
878 (Tex.Crim.App.2009). Under the Fourth Amendment, a warrantless arrest for an offense committed in the officer’s
presence is reasonable if the officer has probable cause. Amador, 275 S.W.3d at 878 (citing United States v. Watson, 423 U.S.
411, 418, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976)). “ ‘Probable cause’ for a warrantless arrest exists if, at the moment the arrest
is made, the facts and circumstances within the arresting officer’s knowledge and of which he has reasonably trustworthy
information are sufficient to warrant a prudent man in believing that the person arrested had committed or was committing an
offense.” Id. (citing Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964)).


    [8][9][10] A finding of probable cause requires “more than bare suspicion” but less than would justify conviction. Id.
(quoting Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949)). The test for probable cause is
objective, “unrelated to the subjective beliefs of the arresting officer,” and “it requires a consideration of the totality of the
circumstances facing the arresting officer.” Id. Once a defendant has carried his initial burden of producing some evidence

                                                                i
rebutting the presumption of proper police conduct—i.e. by establishing that the seizure occurred without a warrant—the
burden shifts to the State to prove that the seizure was nonetheless reasonable. Id.


     *5 Here, evidence at the suppression hearing indicated that Officer McCandless observed appellant commit a moving
violation by failing to maintain his lane and observed appellant weaving within his lane and crossing onto the shoulder.
Officer McCandless testified that he was concerned appellant’s driving posed a danger to the other drivers on the roadway.
When Officer McCandless pulled appellant over, he smelled a strong odor of alcohol coming from appellant’s vehicle,
appellant acknowledged that he had consumed alcoholic beverages, and appellant was unsteady on his feet as he complied
with Officer McCandless’s request that he exit the vehicle. Officer McCandless also administered a portion of the HGN test
and determined that appellant was possibly intoxicated, and appellant refused to cooperate with further field sobriety testing.
Given the totality of the circumstances, this evidence constituted “more than a bare suspicion” and was sufficient to warrant
Officer McCandless’s belief that appellant had committed the offense of DWI. See id.


     Appellant argues that this case is similar to State v. Mosely, and, thus, we should reverse the trial court. However, we
consider Mosely to be distinguishable from the present case. The trial court in Mosely granted the defendant’s motion to
suppress and its findings of fact and conclusions of law supported that ruling, which is not the case here. See 348 S.W.3d
435, 441 (Tex.App.-Austin 2011, pet. ref’d) (“The question we must answer is whether this record so thoroughly satisfies the
State’s burden of establishing that [the officer] had probable cause to arrest Mosely for DWI that the trial court’s ruling to the
contrary was an abuse of discretion.”). Furthermore, while the court in Mosely concluded that evidence that Mosely had
caused an accident, his breath smelled of alcohol, his eyes were bloodshot, and he had admitted to having a couple of drinks
did not constitute evidence of probable cause in that case, the State here presented additional evidence establishing Officer
McCandless’s probable cause for arresting appellant. See id. at 441 (concluding State did not establish that Mosely “lacked
the normal use of his mental or physical faculties” because no officer performed field sobriety testing or “form[ed] an opinion
as to whether Mosely was intoxicated”; officers did not observe slurred speech, trouble maintaining balance, or “anything
else to suggest that [Mosely] was physically or mentally impaired”).


     Here, as we have already stated, Officer McCandless observed appellant driving in an unsafe manner that violated at
least one provision of the Transportation Code; appellant smelled strongly of alcohol and admitted that he had been drinking;
and appellant was unsteady on his feet. Officer McCandless testified that the circumstances surrounding appellant’s traffic
stop, including the unsafe driving, the unsafe location appellant chose to pull over, and appellant’s actions and speech at the
time he was stopped, led him to form the opinion that appellant was intoxicated, unlike the officers in Mosely who testified
that they did not form an opinion regarding whether Mosely was intoxicated. See Henderson v. State, 29 S.W.3d 616, 622
(Tex.App.-Houston [1st Dist.] 2000, pet ref’d) (concluding that officer’s testimony “that an individual is intoxicated is
probative evidence of intoxication.”). And, unlike Mosely, in which officers did not administer field sobriety tests to Mosely,
appellant failed the only portion of the field sobriety testing to which he submitted, refused to allow Officer McCandless to
complete the field sobriety testing, and refused to provide a breath or blood sample. See TEX. TRANSP. CODE ANN. §
724.061 (Vernon 2011) (“A person’s refusal of a request by an officer to submit to the taking of a specimen of breath or
blood, whether the refusal was express or the result of an intentional failure to give the specimen, may be introduced into
evidence at the person’s trial.”); Bartlett v. State, 270 S.W.3d 147, 153 (Tex.Crim.App.2008) (observing that defendant’s
refusal to submit to breath test is admissible under Transportation Code section 724.061 as tending to show defendant’s
consciousness of guilt). Thus, we conclude that Mosely is distinguishable from the present case.


   *6 We cannot conclude that the trial court abused its discretion in denying appellant’s motion to suppress on this ground.
We overrule appellant’s first point of error.


C. Constitutionality of Blood Draw
    [11] In his second point of error, appellant argues that the warrantless taking of his blood sample violated his Fourth
Amendment rights by requiring him to submit to a blood test without his consent and without other justification for the

                                                                j
search.


     [12][13][14] The taking of a blood specimen is a search and seizure under the Fourth Amendment. Schmerber v.
California, 384 U.S. 757, 767, 86 S.Ct. 1826, 1834, 16 L.Ed.2d 908 (1966). A warrantless search or seizure is per se
unreasonable, unless it falls under a recognized exception to the warrant requirement. Katz v. United State, 389 U.S. 347,
357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967); Walter v. State, 28 S.W.3d 538, 541 (Tex.Crim.App.2000). One such
exception is a search conducted pursuant to consent. See Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043–
44, 36 L.Ed.2d 854 (1973). The Court of Criminal Appeals has stated that “[t]he implied consent law does just that—it
implies a suspect’s consent to a search in certain instances. This is important when there is no search warrant, since it is
another method of conducting a constitutionally valid search.” Beeman v. State, 86 S.W.3d 613, 615 (Tex.Crim.App.2002)
(en banc). The Court of Criminal Appeals held,


  The implied consent law expands on the State’s search capabilities by providing a framework for drawing DWI suspects’
  blood in the absence of a search warrant. It gives officers an additional weapon in their investigative arsenal, enabling them
  to draw blood in certain limited circumstances even without a search warrant.


     Id. at 616.


    Both the United States Supreme Court and the Court of Criminal Appeals have recognized a two-part analysis for
determining the legality of a blood draw: reviewing courts must determine whether the police were justified in requiring the
appellant to submit to a blood test and whether the means and procedures employed in taking the blood respected the relevant
Fourth Amendment standards of reasonableness. See State v. Johnston, 336 S.W.3d 649, 658 (Tex.Crim.App.2011) (citing
Schmerber, 384 U.S. at 768, 86 S.Ct. at 1834).


     Section 724.012(b)(3)(B) provides that “[a] peace officer shall require the taking of a specimen of the person’s breath or
blood if ... the officer arrests the person for an offense under Chapter 49, Penal Code, involving the operation of a motor
vehicle ... and the person refuses the officer’s request to submit to the taking of a specimen voluntarily” if, “at the time of the
arrest, the officer possesses or receives reliable information from a credible source that the person ... on two or more
occasions, has been previously convicted of ... an offense under Section 49.04, 49.05, 49.06, or 49.065, Penal Code.” TEX.
TRANSP. CODE ANN. § 724.012(b)(3)(B).


     *7 The State presented evidence that satisfied the elements of this implied consent statute. Officer McCandless testified
that he arrested appellant for suspicion of DWI when appellant refused to comply with further field sobriety testing or to
provide a breath or blood sample voluntarily. Pursuant to this arrest, Officer McCandless asked the station’s dispatcher to
provide him a copy of appellant’s criminal history. The copy of appellant’s criminal history from the dispatcher provided
McCandless with reliable information from a credible source that appellant had at least two previous DWI convictions.
Appellant stipulated to the two previous convictions at trial for “jurisdictional purposes” and does not challenge their
existence on appeal. Thus, the State established that the blood sample was taken pursuant to section 724.012(b)(3)(B), which
served to imply appellant’s consent to the taking of the blood sample. See id.; Beeman, 86 S.W.3d at 615–16. We conclude
that this is evidence of implied consent that the police were justified in relying on under the circumstances of this case in
requiring appellant to submit to a blood test. See Johnston, 336 S.W.3d at 658.


     [15] In part of his second point of error, appellant argues that Transportation Code section 724.012(b) is itself
unconstitutional because it “cannot authorize what the Constitution forbids.” However, he did not argue in the trial court that
the statute itself was unconstitutional because it provides for implied consent to a blood draw. He complained only that the
taking of his blood violated his Fourth Amendment rights by requiring him to submit to a warrantless blood test without
consent. Thus, he did not preserve his complaint that the statute is unconstitutional because it authorizes warrantless blood
draws based on implied consent. See TEX.R.APP. P. 33.1. Accordingly, we need not address his argument that section

                                                                k
724.012(b) is unconstitutional in light of Missouri v. McNeely, ––– U.S. ––––, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013).


    We conclude that the warrantless taking of appellant’s blood sample in compliance with Transportation Code section
724.012(b) did not violate his Fourth Amendment rights by requiring him to submit to a warrantless blood test without his
consent. We express no opinion as to the constitutionality of implied consent. We overrule appellant’s second point of error.


                                                        Conclusion
    We affirm the judgment of the trial court.


        FN1. Form THP–51 is the statutory authorization form that allows a peace officer to require that a hospital perform
        a mandatory blood drawing. See TEX. TRANSP. CODE ANN. § 724.012(b) (Vernon 2011); State v. Neesley, 239
        S.W.3d 780, 782 n. 2 (Tex.Crim.App.2007).


Tex.App.–Houston [1 Dist.],2014.
Perez v. State
--- S.W.3d ----, 2014 WL 943126 (Tex.App.-Hous. (1 Dist.))


END OF DOCUMENT




                                                              l
                      Appendix B

                    Perez v. State,
          01-12-01001-CR, 2015 WL 1245469
(Tex. App.—Houston [1st Dist.] Mar. 17, 2015, pet. filed)




                           m
                                                                          while reviewing de novo the court’s application
                     2015 WL 1245469                                      of the law of search and seizure to those facts.
       Only the Westlaw citation is currently available.
                                                                          Cases that cite this headnote
     NOTICE: THIS OPINION HAS NOT BEEN
     RELEASED FOR PUBLICATION IN THE
PERMANENT LAW REPORTS. UNTIL RELEASED,
IT IS SUBJECT TO REVISION OR WITHDRAWAL.
                                                                    [2]
          OPINION ON REHEARING                                            Criminal Law
           Court of Appeals of Texas,                                       Reception of evidence
               Houston (1st Dist.
                                                                          An appellate court reviewing a trial court’s
         Antonio Ruiz Perez, Appellant                                    ruling on a motion to suppress views the
                         v.                                               evidence in the light most favorable to the trial
           The State of Texas, Appellee                                   court’s ruling.
  NO. 01–12–01001–CR | Opinion issued March 17,
                       2015                                               Cases that cite this headnote


Synopsis
Background: Following denial of his motion to suppress
evidence, defendant was convicted in the 339th District             [3]
                                                                          Criminal Law
Court, Harris County, Maria T. Jackson, J., of driving                      Trial judge as sole arbiter of credibility
while intoxicated (DWI), third offense, and sentence of 25
years’ confinement was imposed. Defendant appealed.                       At a hearing on a motion to suppress, the trial
                                                                          court is the sole trier of fact and judge of
                                                                          credibility of the witnesses and the weight to be
                                                                          given to their testimony, and the trial court may
Holdings: On rehearing, the Court of Appeals, Evelyn V.                   choose to believe or disbelieve any part or all of
Keyes, J., held that:                                                     a witness’s testimony.
[1]
   arresting officer had probable cause to support                        Cases that cite this headnote
warrantless arrest of defendant for DWI;
[2]
    warrantless taking of defendant’s blood sample
pursuant to implied consent law violated Fourth
Amendment; and                                                      [4]
                                                                          Criminal Law
[3]
                                                                            Illegally obtained evidence
   error in allowing evidence regarding the warrantless                   Criminal Law
taking of defendant’s blood sample and his toxicology                       Theory and Grounds of Decision in Lower
results was harmful.                                                      Court

Reversed and remanded.                                                    The appellate court sustains the trial court’s
                                                                          ruling on a motion to suppress only if it is
                                                                          reasonably supported by the record and correct
                                                                          on any theory of law applicable to the case.
  West Headnotes (17)                                                     Cases that cite this headnote

 [1]
            Criminal Law
              Review De Novo
                                                                    [5]
            Criminal Law                                                  Automobiles
              Evidence wrongfully obtained                                  Intoxication

            When reviewing a trial court’s denial of a                    Arresting officer had probable cause to believe
            motion to suppress, the appellate court gives                 that defendant committed offense of driving
            almost total deference to a trial court’s express             while intoxicated (DWI), as necessary to support
            or implied determinations of historical facts,                warrantless arrest of defendant for DWI, where

                                                                n
      officer observed defendant commit a moving
      violation by failing to maintain his lane,                       Cases that cite this headnote
      defendant stopped vehicle in an unsafe location
      when officer initiated traffic stop, officer
      smelled strong odor of alcohol and defendant
      admitted he had been drinking alcoholic                   [9]
      beverages, defendant was unsteady on his feet                    Arrest
      when he complied with officer’s request to exit                    What constitutes such cause in general
      vehicle, defendant failed only field sobriety test
      to which he submitted, the horizontal gaze                       Test for probable cause to support a warrantless
      nystagmus (HGN) test, and defendant failed to                    arrest is objective, is unrelated to the subjective
      submit to other field sobriety testing or provide                beliefs of the arresting officer, and requires a
      a blood or breath sample. U.S. Const. Amend. 4.                  consideration of the totality of the circumstances
                                                                       facing the arresting officer. U.S. Const. Amend.
      Cases that cite this headnote                                    4.

                                                                       Cases that cite this headnote


[6]
      Arrest
        Personal knowledge or observation in general            [10]
                                                                       Searches and Seizures
      Warrantless arrest for an offense committed in                     Presumptions and Burden of Proof
      the officer’s presence is reasonable if the officer
      has probable cause. U.S. Const. Amend. 4.                        Once a defendant alleging a Fourth Amendment
                                                                       violation has carried his initial burden of
      Cases that cite this headnote                                    producing some evidence rebutting the
                                                                       presumption of proper police conduct, such as
                                                                       by establishing that a seizure occurred without a
                                                                       warrant, then the burden shifts to the State to
                                                                       prove that the seizure was nonetheless
[7]
      Arrest                                                           reasonable. U.S. Const. Amend. 4.
        What constitutes such cause in general
      Arrest                                                           Cases that cite this headnote
        Time of existence; after-acquired information

      Probable cause for a warrantless arrest exists if,
      at the moment the arrest is made, the facts and           [11]
      circumstances within the arresting officer’s                     Criminal Law
      knowledge and of which he has reasonably                           Wrongfully obtained evidence
      trustworthy information are sufficient to warrant                Criminal Law
      a prudent man in believing that the person                         Sufficiency and Scope of Motion
      arrested had committed or was committing an
      offense. U.S. Const. Amend. 4.                                   Defendant preserved for appellate review his
                                                                       argument that warrantless taking of his blood
      Cases that cite this headnote                                    sample, following arrest for driving while
                                                                       intoxicated (DWI), violated his Fourth
                                                                       Amendment rights by requiring him to submit to
                                                                       blood test without his consent, though
                                                                       defendant’s general motion to suppress did not
[8]
      Arrest                                                           specifically mention the blood draw, where
        What constitutes such cause in general                         motion to suppress argued generally that the
      Arrest                                                           State’s warrantless acquisition of evidence was
        Suspicion or rumor                                             not valid, defendant’s attorney objected at the
                                                                       suppression hearing to the State’s failure to
      A finding of probable cause, as necessary to                     obtain a warrant for the blood draw and asked
      support warrantless arrest, requires more than                   trial court to suppress “any aspects of a blood
      bare suspicion, but less than would justify                      test” in the case, and defendant’s attorney
      conviction. U.S. Const. Amend. 4.                                asserted at the suppression hearing that implied
                                                                       consent law did not provide authority for officer

                                                            o
       to take defendant’s blood without a warrant.                     general
       U.S. Const. Amend. 4; Tex. Transp. Code Ann.                     Searches and Seizures
       § 724.012; Tex. R. App. P. 33.1.                                   Necessity of and preference for warrant, and
                                                                        exceptions in general
       Cases that cite this headnote
                                                                        In general, to comply with the Fourth
                                                                        Amendment, a search of a person pursuant to a
                                                                        criminal investigation (1) requires a search
[12]
                                                                        warrant or a recognized exception to the warrant
       Criminal Law                                                     requirement, and (2) must be reasonable under
         Constitutional questions                                       the totality of the circumstances. U.S. Const.
                                                                        Amend. 4.
       If a party fails to properly object to errors at
       trial, even constitutional errors can be forfeited,              Cases that cite this headnote
       and the Court of Appeals should not address the
       merits of forfeited errors on appeal. Tex. R.
       App. P. 33.1.

       Cases that cite this headnote                             [16]
                                                                        Automobiles
                                                                          Consent, express or implied

                                                                        Warrantless taking of defendant’s blood sample
[13]
                                                                        pursuant to implied consent law, following
       Criminal Law                                                     defendant’s arrest for driving while intoxicated
         Adding to or changing grounds of objection                     (DWI), did not fall within consent exception to
                                                                        warrant requirement and, thus, violated Fourth
       Defendant who sought suppression of his blood                    Amendment; defendant had revoked or
       test results in driving while intoxicated (DWI)                  withdrawn any implied consent to the blood
       prosecution did not preserve for appellate                       draw when he refused to provide a breath or
       review his argument that portions of implied                     blood specimen after his arrest and refused to
       consent law were unconstitutional, where                         sign statutory warnings that officer had provided
       defendant did not argue in the trial court that the              to him regarding consequences of failing to
       implied consent law itself was unconstitutional,                 provide a specimen. U.S. Const. Amend. 4; Tex.
       but instead complained only that the taking of                   Transp. Code Ann. § 724.012(b).
       his blood violated his Fourth Amendment rights
       by requiring him to submit to warrantless blood                  2 Cases that cite this headnote
       test without adequate consent. U.S. Const.
       Amend. 4; Tex. Transp. Code Ann. §
       724.012(b); Tex. R. App. P. 33.1.

       Cases that cite this headnote                             [17]
                                                                        Criminal Law
                                                                          Evidence wrongfully obtained

                                                                        Trial court’s violation of defendant’s Fourth
[14]
                                                                        Amendment rights, during prosecution for
       Searches and Seizures                                            driving while intoxicated (DWI), in allowing
         Taking samples of blood, or other physical                     evidence regarding the warrantless taking of
       specimens; handwriting exemplars                                 defendant’s blood sample and his toxicology
                                                                        results was harmful and, thus, required reversal,
       The taking of a blood specimen is a search and                   where jury charge instructed jurors that
       seizure under the Fourth Amendment. U.S.                         “intoxicated” meant “having an alcohol
       Const. Amend. 4.                                                 concentration of 0.08 or more,” and assistant
                                                                        chief toxicologist testified that defendant’s
       Cases that cite this headnote                                    blood sample contained .17 grams of ethanol per
                                                                        100 milliliters and that this amount of alcohol
                                                                        was “roughly double” the legal limit in Texas.
                                                                        U.S. Const. Amend. 4; Tex. R. App. P. 44.2(a).
[15]
       Searches and Seizures                                            Cases that cite this headnote
         Fourth Amendment and reasonableness in

                                                             p
                                                                   McCandless detained appellant and decided to conduct
                                                                   additional sobriety testing in a safer environment.
                                                                   However, appellant refused to provide a breath specimen.

                                                                   Pursuant to his detention of appellant, Officer
On Appeal from the 339th District Court, Harris                    McCandless obtained appellant’s criminal history through
County, Texas, Trial Court Case No. 1309538                        the station’s dispatch system and determined that
                                                                   appellant had two prior DWI convictions. Officer
Attorneys and Law Firms                                            McCandless then took appellant to a hospital where
Joseph Salhab, Houston, TX, for Appellant.                         appellant’s blood was drawn at approximately 1:20 a.m.
                                                                   on June 11. The blood test revealed that appellant had a
Devon Anderson, District Attorney, Eric Kugler,
                                                                   blood alcohol level of 0.17, more than twice the legal
Assistant District Attorney, Houston, TX, for State of
                                                                   limit.
Texas.

Panel consists of Justices Keyes, Higley, and Massengale.          At trial, appellant filed a general motion to suppress that
                                                                   did not specifically mention the blood draw but instead
                                                                   argued generally that the evidence offered by the State
                                                                   was not obtained “pursuant to a search warrant, was
                                                                   absent exigent circumstances, and made without probable
                                                                   cause to believe the Accused was engaged in criminal
             OPINION ON REHEARING                                  activity or that such evidence, if any, was in danger of
                                                                   being destroyed.” Officer McCandless was the only
Evelyn V. Keyes, Justice                                           witness at the hearing on the motion to suppress. He
*1 Appellant, Antonio Ruiz Perez, moved for rehearing of           testified that a little before midnight on June 10, 2011, he
our March 11, 2014 opinion. We grant rehearing,                    observed a red Corvette “swerving and failing to maintain
withdraw the opinion and judgment dated March 11,                  a single marked lane” in a manner that posed a danger to
2014, and issue this opinion and judgment in their stead. 1        the surrounding vehicles. The officer testified that, based
Appellant’s motion for en banc reconsideration is                  on his “past experience and the past arrests that [he] had
dismissed as moot.                                                 made, just seeing the way that [the Corvette driver] was
                                                                   acting, the time of night and the roadway that [they] were
A jury convicted appellant of driving while intoxicated            on, that led me to believe that he was possibly
(“DWI”), third offense, and the trial court assessed his           intoxicated” or impaired by some means. Officer
punishment at twenty-five years’ confinement. In two               McCandless then initiated the traffic stop. Appellant
points of error, appellant argues that the trial court erred       cross-examined Officer McCandless on the basis for his
in denying his motion to suppress because: (1) the                 probable cause to initiate the traffic stop. Appellant then
arresting officer lacked probable cause to arrest him              asked “that the court suppress the arrest as well as the
without a warrant and (2) the warrantless taking of his            video.” The trial court denied the motion to suppress.
blood sample violated his rights under the Fourth
Amendment.                                                         *2 Appellant’s attorney then stated:

We reverse and remand.                                               On the record, I am making an objection to the
                                                                     mention, to the admission, to any reference to the blood
                                                                     test, taking results or anything dealing with the blood
                                                                     test of my client, [appellant], based on the failure of the
                                                                     State to get a warrant for the blood taking under the
                      Background                                     Statute 725, I believe it is, 12(b).
At approximately 11:50 p.m. on June 10, 2011, Officer B.
McCandless observed a red Corvette failing to maintain a             There is no authority for the officer to take the blood of
single marked lane and followed it for several miles. After          my client without a warrant, and that is what he did in
observing further unsafe driving, Officer McCandless                 this case.
initiated a traffic stop, and the Corvette exited the
highway and stopped in the outside lane of the service               My client was under arrest. He invoked his right to
road. Upon approaching the Corvette, Officer                         counsel prior to the taking of—or the request for the
McCandless observed that appellant was the driver and                blood. He refused to do the request for blood and
that a strong odor of alcohol was coming from the                    breath. He was taken to the hospital.
vehicle. Officer McCandless testified that appellant stated
that he had been drinking, so he administered the                  He further stated that the officer failed to fill out the
horizontal gaze nystagmus (“HGN”) test and determined              “THP–51” form correctly because he did not check one of
that appellant showed signs of intoxication. Officer               the boxes and the officer “used this authority to withdraw

                                                               q
blood against my client’s consent and denied him of his            lack of smooth pursuit,” which indicated to him that
constitutional right of illegal search and seizure in this         appellant was intoxicated.
case.” He went on to argue that Officer McCandless
“didn’t follow the statutory authority that required him to        *3 Rather than completing the remainder of the HGN test,
in this particular case to have a warrant before he                he decided “to detain [appellant] to get us off of the
withdrew the blood from my client.” Appellant asked the            roadway for my safely and his.” Officer McCandless
trial court to suppress “any aspects of a blood test in this       testified that he believed it would have been unsafe to
case.”                                                             administer the full battery of field sobriety tests at the
                                                                   location where appellant stopped his vehicle because they
The State responded that Transportation Code section               were “in a moving lane of traffic,” making it more likely
724.012 was the controlling authority in this case and that        that they could be struck by traffic exiting the nearby
it did not require that a search warrant be obtained if one        highway or driving along the service road. He handcuffed
of the listed criteria was met. The State also argued that         appellant and placed him in the police vehicle to “take
the “THP–51 form is merely a form with regard to                   him back to [the] station to complete the standardized
liability” and that “the officer’s testimony would be the          field sobriety tests in a controlled environment.”
best form of evidence as to this case and why a mandatory
blood draw was a necessity.”2 Appellant responded:                 However, upon returning to the station, appellant refused
                                                                   to complete any of the field sobriety tests. At that point,
            Therefore, it will be             the                  based on appellant’s driving, “the strong odor of alcohol
            Constitution of the United States as                   emitting from the vehicle, the time of night, [and] the fact
            well as the statutory laws of the                      that he started drinking at 7:00 and [could not] remember
            State of Texas on the search and                       how many alcoholic beverages he had consumed,” Officer
            seizure law; and I don’t believe that                  McCandless placed appellant under arrest for suspicion of
            the State has properly followed the                    DWI and asked for a breath or blood specimen. He read
            law when they withdrew the blood                       appellant a statutory warning advising that he was under
            here and the statutory and the                         arrest for DWI, that a refusal to submit a specimen would
            constitutional law and case law                        result in having his license taken away, and that such a
            regarding withdrawal of blood with                     refusal could be used as potential evidence of guilt in any
            a warrant. They didn’t obtain a                        future proceedings. Appellant refused to give a breath or
            warrant. This is a warrantless                         blood sample and refused to sign the statutory warning.
            search while the person was in
            custody under arrest and while the                     At that point, Officer McCandless asked the station’s
            person also invoked his right to                       dispatch to run appellant’s criminal history, and he
            counsel; and therefore, a mandatory                    discovered that appellant had at least two prior DWI
            warrant would be the only way that                     convictions. At trial, appellant stipulated, for
            they could withdraw blood in this                      jurisdictional purposes only, to the existence of two prior
            case.                                                  DWI convictions. Officer McCandless testified that the
                                                                   two prior convictions satisfied the statutory requirement
The trial court verified that the State was relying on             for obtaining a mandatory blood specimen, stating, “At
Transportation Code section 724.012(b)(3)(B). It then              the time of the suspect’s arrest, I possessed or received
denied appellant’s motion to “suppress or deny the                 reliable information from a credible source that on two or
admission of the blood test.”                                      more occasions the suspect had previously been convicted
                                                                   of or placed on community supervision of an offense
At trial, Officer McCandless testified before the jury             under [the appropriate sections of the] Texas Penal
regarding his arrest of appellant for DWI. He testified            Code.” He transported appellant to a local hospital where
again regarding his observations that led him to initiate          his blood was drawn at 1:20 a.m. on June 11, 2011.
the traffic stop. He stated that when he made contact with
appellant he “could smell a strong odor of alcoholic               Wesley Colwell, the nurse who drew appellant’s blood,
beverage emitting from the vehicle.” He further testified          testified regarding the procedure he employed to take
that appellant “admitted to having been drinking” and              appellant’s blood sample. Dr. Jeff Walterscheid, the
“could not remember how many he had to drink.” Officer             assistant chief toxicologist at the Harris County Institute
McCandless also observed when appellant exited the                 of Forensic Sciences, testified regarding the results of
vehicle that appellant was “slightly unsteady” and “not            appellant’s blood test. He testified that appellant had a
balanced.” He testified that he then administered the HGN          blood alcohol level of 0.17, which was “roughly double”
test to appellant, which is a test “where we check the eyes        the legal limit.
and have them follow a stimulus or your finger with both
of their eyes to check to see if there is equal tracking, to       The jury convicted appellant of DWI and the trial court
check to see if there is any involuntary jerking or                assessed his punishment at twenty-five years’
bouncing of the eye.” Officer McCandless observed “a               confinement. This appeal followed.

                                                               r
                                                                     Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d
                                                                     142 (1964)).
                                                                     [8] [9] [10]
                                                                              A finding of probable cause requires “more than
                          Analysis                                   bare suspicion” but less than would justify conviction. Id.
Appellant argues that the trial court erred in failing to            (quoting Brinegar v. United States, 338 U.S. 160, 175, 69
suppress the results of his blood draw.                              S.Ct. 1302, 93 L.Ed. 1879 (1949)). The test for probable
                                                                     cause is objective, “unrelated to the subjective beliefs of
                                                                     the arresting officer,” and “it requires a consideration of
                                                                     the totality of the circumstances facing the arresting
A. Standard of Review                                                officer.” Id. Once a defendant has carried his initial
[1] [2] [3] [4]
                We review a denial of a motion to suppress           burden of producing some evidence rebutting the
evidence for an abuse of discretion. Shepherd v. State,              presumption of proper police conduct—i.e. by
273 S.W.3d 681, 684 (Tex.Crim.App.2008) (citing State                establishing that the seizure occurred without a warrant—
v. Dixon, 206 S.W.3d 587, 590 (Tex.Crim.App.2006)).                  the burden shifts to the State to prove that the seizure was
When we review a trial court’s denial of a motion to                 nonetheless reasonable. Id.
suppress, we give “almost total deference to a trial court’s
express or implied determinations of historical facts                Here, evidence at the suppression hearing indicated that
[while] reviewing] de novo the court’s application of the            Officer McCandless observed appellant commit a moving
law of search and seizure to those facts.” Id. We view the           violation by failing to maintain his lane and observed
evidence in the light most favorable to the trial court’s            appellant weaving within his lane and crossing onto the
ruling. Wiede v. State, 214 S.W.3d 17, 24                            shoulder. Officer McCandless testified that he was
(Tex.Crim.App.2007) (quoting State v. Kelly, 204 S.W.3d              concerned appellant’s driving posed a danger to the other
808, 818 (Tex.Crim.App.2006)). The trial court is the                drivers on the roadway. When Officer McCandless pulled
“sole trier of fact and judge of credibility of the witnesses        appellant over, he smelled a strong odor of alcohol
and the weight to be given to their testimony.” St. George           coming from appellant’s vehicle, appellant acknowledged
v. State, 237 S.W.3d 720, 725 (Tex.Crim.App.2007). The               that he had consumed alcoholic beverages, and appellant
trial court may choose to believe or disbelieve any part or          was unsteady on his feet as he complied with Officer
all of a witness’s testimony. Green v. State, 934 S.W.2d             McCandless’s request that he exit the vehicle. Officer
92, 98 (Tex.Crim.App.1996). We sustain the trial court’s             McCandless also administered a portion of the HGN test
ruling only if it is reasonably supported by the record and          and determined that appellant was possibly intoxicated,
correct on any theory of law applicable to the case. Laney           and appellant refused to cooperate with further field
v. State, 117 S.W.3d 854, 857 (Tex.Crim.App.2003).                   sobriety testing. Given the totality of the circumstances,
                                                                     this evidence constituted “more than a bare suspicion”
                                                                     and was sufficient to warrant Officer McCandless’s belief
                                                                     that appellant had committed the offense of DWI. See id.
B. Probable Cause to Arrest
*4 [5]In his first point of error, appellant argues that the
                                                                     Appellant argues that this case is similar to State v.
trial court erred in denying his motion to suppress and
                                                                     Mosely, and, thus, we should reverse the trial court.
admitting his blood test results because the State did not
                                                                     However, we consider Mosely to be distinguishable from
show probable cause for his warrantless arrest for DWI.
                                                                     the present case. The trial court in Mosely granted the
[6]   [7]                                                            defendant’s motion to suppress and its findings of fact
      The Fourth Amendment to the United States
                                                                     and conclusions of law supported that ruling, which is not
Constitution, which is made applicable to the states by the
                                                                     the case here. See 348 S.W.3d 435, 441 (Tex. App.–
Due Process Clause of the Fourteenth Amendment,
                                                                     Austin 2011, pet. ref’d) (“The question we must answer is
guarantees that “[t]he right of the people to be secure in
                                                                     whether this record so thoroughly satisfies the State’s
their persons ... against unreasonable ... seizures, shall not
                                                                     burden of establishing that [the officer] had probable
be violated.” U.S. CONST. amends. IV, XIV; Amador v.
                                                                     cause to arrest Mosely for DWI that the trial court’s ruling
State, 275 S.W.3d 872, 878 (Tex.Crim.App.2009). Under
                                                                     to the contrary was an abuse of discretion.”).
the Fourth Amendment, a warrantless arrest for an offense
                                                                     Furthermore, while the court in Mosely concluded that
committed in the officer’s presence is reasonable if the
                                                                     evidence that Mosely had caused an accident, his breath
officer has probable cause. Amador, 275 S.W.3d at 878
                                                                     smelled of alcohol, his eyes were bloodshot, and he had
(citing United States v. Watson, 423 U.S. 411, 418, 96
                                                                     admitted to having a couple of drinks did not constitute
S.Ct. 820, 46 L.Ed.2d 598 (1976)). “ ‘Probable cause’ for
                                                                     evidence of probable cause in that case, the State here
a warrantless arrest exists if, at the moment the arrest is
                                                                     presented additional evidence establishing Officer
made, the facts and circumstances within the arresting
                                                                     McCandless’s probable cause for arresting appellant. See
officer’s knowledge and of which he has reasonably
                                                                     id. at 441 (concluding State did not establish that Mosely
trustworthy information are sufficient to warrant a
                                                                     “lacked the normal use of his mental or physical
prudent man in believing that the person arrested had
                                                                     faculties” because no officer performed field sobriety
committed or was committing an offense.” Id. (citing
                                                                 s
testing or “form[ed] an opinion as to whether Mosely was
                                                                   [12]
intoxicated”; officers did not observe slurred speech,                To preserve a complaint for appellate review, Texas
trouble maintaining balance, or “anything else to suggest          Rule of Appellate Procedure 33.1 requires that: (1) the
that [Mosely] was physically or mentally impaired”).               complaining party made a timely and specific request,
                                                                   objection, or motion; and (2) the trial court either ruled on
*5 Here, as we have already stated, Officer McCandless             the request, objection, or motion or refused to rule and the
observed appellant driving in an unsafe manner that                complaining party objected to that refusal. TEX. R. APP.
violated at least one provision of the Transportation Code;        P. 33.1(a); Geuder v. State, 115 S.W.3d 11, 13
appellant smelled strongly of alcohol and admitted that he         (Tex.Crim.App.2003). If a party fails to properly object to
had been drinking; and appellant was unsteady on his feet.         errors at trial, even constitutional errors can be forfeited.
Officer McCandless testified that the circumstances                Clark      v.     State,    365     S.W.3d       333,     339
surrounding appellant’s traffic stop, including the unsafe         (Tex.Crim.App.2012). We should not address the merits
driving, the unsafe location appellant chose to pull over,         of forfeited errors on appeal. Wilson v. State, 311 S.W.3d
and appellant’s actions and speech at the time he was              452, 473–74 (Tex.Crim.App.2010) (quoting Ford v. State,
stopped, led him to form the opinion that appellant was            305 S.W.3d 530, 532–33 (Tex.Crim.App.2009)).
intoxicated, unlike the officers in Mosely who testified
that they did not form an opinion regarding whether                At trial, appellant filed a general motion to suppress that
Mosely was intoxicated. See Henderson v. State, 29                 did not specifically mention the blood draw but argued
S.W.3d 616, 622 (Tex.App.–Houston [1st Dist.] 2000, pet            generally that “[t]he acquisition of [the State’s] evidence
ref’d) (concluding that officer’s testimony “that an               was not pursuant to a search warrant, was absent exigent
individual is intoxicated is probative evidence of                 circumstances, and made without probable cause to
intoxication.”). And, unlike Mosely, in which officers did         believe the Accused was engaged in criminal activity or
not administer field sobriety tests, appellant failed the          that such evidence, if any, was in danger of being
only portion of the field sobriety testing to which he             destroyed.”
submitted, refused to allow Officer McCandless to
complete the field sobriety testing, and refused to provide        Appellant’s attorney also objected, on the record at the
a breath or blood sample. See TEX. TRANSP. CODE                    suppression hearing, to the State’s failure to obtain a
ANN. § 724.061 (Vernon 2011) (“A person’s refusal of a             warrant “for the blood taking under the Statute 725, I
request by an officer to submit to the taking of a specimen        believe it is, 12(b). There is no authority for the officer to
of breath or blood, whether the refusal was express or the         take the blood of my client without a warrant, and that is
result of an intentional failure to give the specimen, may         what he did in this case.” Appellant’s attorney also argued
be introduced into evidence at the person’s trial.”);              that Officer McCandless “didn’t follow the statutory
Bartlett     v.    State,    270     S.W.3d     147,    153        authority that required him to in this particular case to
(Tex.Crim.App.2008) (observing that defendant’s refusal            have a warrant before he withdrew the blood from my
to submit to breath test is admissible under Transportation        client.” Appellant asked the trial court to suppress “any
Code section 724.061 as tending to show defendant’s                aspects of a blood test in this case.”
consciousness of guilt). Thus, we conclude that Mosely is
distinguishable from the present case.                             The State responded that Transportation Code section
                                                                   724.012 was the controlling authority in this case and that
We cannot conclude that the trial court abused its                 it did not require that a search warrant be obtained if one
discretion in denying appellant’s motion to suppress on            of the listed criteria was met. Appellant responded by
this ground. We overrule appellant’s first point of error.         asserting another objection:

                                                                                Therefore, it will be             the
                                                                                Constitution of the United States as
C. Warrantless Blood Draw                                                       well as the statutory laws of the
In his second point of error, appellant argues that the                         State of Texas on the search and
warrantless taking of his blood sample violated his Fourth                      seizure law; and I don’t believe that
Amendment rights by requiring him to submit to a blood                          the State has properly followed the
test without his consent and without other justification for                    law when they withdrew the blood
the search.                                                                     here and the statutory and the
                                                                                constitutional law and case law
                                                                                regarding withdrawal of blood with
                                                                                a warrant. They didn’t obtain a
1. Was this complaint preserved?                                                warrant. This is a warrantless
[11]
     The State argues, both in its original brief and in its                    search while the person was in
response to appellant’s motion for rehearing, that                              custody under arrest and while the
appellant did not preserve this complaint for consideration                     person also invoked his right to
on appeal.                                                                      counsel; and therefore, a mandatory

                                                               t
             warrant would be the only way that                      to the warrant requirement include the consent exception,
             they could withdraw blood in this                       the exigency exception, the automobile exception, the
             case.                                                   search-incident to arrest exception, and the special-needs
                                                                     doctrine. See Villarreal, ––– S.W.3d at ––––, 2014 WL
*6 Appellant complains on appeal that the warrantless                6734178, at *8 (discussing consent, automobile, search-
taking of his blood sample violated his Fourth                       incident-to-arrest, and special-needs exceptions); Gore v.
Amendment rights. We conclude that his objection that                State, 451 S.W.3d 182, 193–97 (Tex.App.–Houston [1st
the statute relied upon by the State did not provide                 Dist.] 2014, pet. filed) (discussing exigency exception)
“authority for the officer to take the blood of my client
without a warrant” and his objection based on “the                   *7 [16]Here, it is undisputed that appellant’s blood sample
Constitution of the United States as well as the statutory           was taken without a warrant. However, the State argues
laws of the State of Texas on the search and seizure law”            that Officer McCandless complied with the mandatory
for obtaining evidence without a warrant preserved this              blood draw statute. Thus, we construe its argument as
complaint for our review. These objections were                      asserting that the consent exception applies because
sufficient to put the trial court on notice that appellant was       appellant’s blood sample was taken pursuant to Texas’
complaining that his Fourth Amendment rights against                 implied consent/mandatory blood draw statutory scheme,
unreasonable search and seizure were violated by the                 or alternatively, that the mandatory blood draw statute
warrantless taking of his blood sample.                              itself constitutes an exception to the warrant requirement.

[13]
   However, appellant also argues, in part of his second             The Transportation Code contains a provision establishing
point of error, that Transportation Code section                     implied consent to the taking of a blood or breath
724.012(b) is itself unconstitutional because it “cannot             specimen for all drivers arrested on suspicion of DWI:
authorize what the Constitution forbids.” He did not argue
in the trial court that the statute itself was                                   If a person is arrested for an
unconstitutional. He complained only that the taking of                          offense arising out of acts alleged
his blood violated his Fourth Amendment rights by                                to have been committed while the
requiring him to submit to a warrantless blood test                              person was operating a motor
without adequate consent under the Fourth Amendment.                             vehicle in a public place ... the
Thus, he did not preserve his complaint regarding the                            person is deemed to have
constitutionality of the statute.3 See TEX. R. APP. P. 33.1.                     consented, subject to this chapter,
                                                                                 to submit to the taking of one or
Accordingly, we address only appellant’s complaint that                          more specimens of the person’s
the warrantless taking of his blood violated his Fourth                          breath or blood for analysis to
Amendment rights.                                                                determine the alcohol concentration
                                                                                 or the presence in the person’s
                                                                                 body of a controlled substance,
                                                                                 drug, dangerous drug, or other
2. Did the warrantless taking of appellant’s blood                               substance.
sample violate his Fourth Amendment rights?
[14]
     As we recognized above, the Fourth Amendment                    TEX. TRANSP. CODE ANN. § 724.011(a) (Vernon
protects against unreasonable searches and seizures. U.S.            2011); Villarreal, –––S.W.3d at ––––, 2014 WL 6734178,
CONST. amend. IV; State v. Villarreal, ––– S.W.3d ––––               at *6. This provision is “modified by section 724.013,
, ––––, No. PD–0306–14, 2014 WL 6734178, at *8                       which establishes a right to refuse to provide a breath or
(Tex.Crim.App. Nov. 26, 2014). The taking of a blood                 blood sample in routine DWI cases.” TEX. TRANSP.
specimen is a search and seizure under the Fourth                    CODE ANN. § 724.013 (Vernon 2011) (providing that “a
Amendment. Schmerber v. California, 384 U.S. 757, 767,               specimen may not be taken if a person refuses to submit
86 S.Ct. 1826, 1834, 16 L.Ed.2d 908 (1966); Villarreal, –            to the taking of a specimen designated by a peace
–– S.W.3d at ––––, 2014 WL 6734178, at *9.                           officer”); Villarreal, ––– S.W.3d at ––––, 2014 WL
                                                                     6734178, at *6.
[15]
   “In general, to comply with the Fourth Amendment, a
search of a person pursuant to a criminal investigation (1)          However, the right to refuse is not absolute because
requires a search warrant or a recognized exception to the           section 724.012(b) establishes that when certain
warrant requirement, and (2) must be reasonable under                aggravating factors are present during a DWI stop, an
the totality of the circumstances.” Villarreal, ––– S.W.3d           officer is required to obtain a specimen even if the suspect
at ––––, 2014 WL 6734178, at *8; see also Katz v. United             refuses. TEX. TRANSP. CODE ANN. § 724.012(b)
States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d             (Vernon 2011); Villarreal, ––– S.W.3d at ––––, 2014 WL
576 (1967) (holding that warrantless search or seizure is            6734178, at *6. Specifically, section 724.012(b)(3)(B)
per se unreasonable unless it falls under recognized                 provides that a peace officer “shall require the taking of a
exception to warrant requirement). Established exceptions            specimen of the person’s breath or blood” if the arrest is

                                                                 u
for an offense “involving the operation of a motor vehicle          Texas’s statutory scheme have reached that same
... and the person refuses the officer’s request to submit to       conclusion.” Id. at ––––, at *13; see also Gore, 451
the taking of a specimen voluntarily” and if, “at the time          S.W.3d at 193 (holding that implied consent/mandatory
of the arrest, the officer possesses or receives reliable           blood draw statutes as applied to defendant whose blood
information from a credible source that the person ... on           was drawn without warrant or another exception to
two or more occasions, has been previously convicted of             warrant requirement violated Fourth Amendment in part
... an offense under Section 49.04, 49.05, 49.06, or                because “implied consent that cannot be withdrawn does
49.065, Penal Code....” TEX. TRANSP. CODE ANN. §                    not meet the requirements for voluntary consent under the
724.012(b)(3)(B); Villarreal, ––– S.W.3d at ––––, 2014              Fourth Amendment”); State v. Anderson, 445 S.W.3d
WL 6734178, at *7.                                                  895, 908 (Tex.App.–Beaumont 2014, no pet.) (concluding
                                                                    that section 724.012(b) “does not constitute an exception
In our original opinion, we applied the Court of Criminal           to the Fourth Amendment’s warrant requirement”); Aviles
Appeals’ precedents and held that the implied consent               v. State, 443 S.W.3d 291, 294 (Tex.App.–San Antonio
statute implied appellant’s consent to the blood sample,            2014, pet. filed) (op. on remand) (holding same); Forsyth
and thus, his Fourth Amendment rights were not violated             v. State, 438 S.W.3d 216, 222–23 (Tex.App.–Eastland
here. See Schneckloth v. Bustamonte, 412 U.S. 218, 219,             2014, pet. ref’d) (holding that implied consent under
93 S.Ct. 2041, 2043–44, 36 L.Ed.2d 854 (1973) (holding              Transportation Code is not equivalent to voluntary
that search conducted pursuant to consent is recognized             consent for Fourth Amendment purposes).
exception to warrant requirement); Beeman v. State, 86
S.W.3d 613, 615 (Tex.Crim.App.2002) (en banc) (stating,             The Court of Criminal Appeals in Villarreal stated, “We
in dicta, that implied consent law “implies a suspect’s             agree with these courts’ assessments that, in the context of
consent to a search in certain instances” and that such             a nonconsensual, warrantless bodily search of a person
consent was important “when there is no search warrant,             suspected of criminal activity, a statute providing for
since it is another method of conducting a constitutionally         irrevocable implied consent cannot supply the type of
valid search”).                                                     voluntary consent necessary to establish an exception to
                                                                    the Fourth Amendment warrant requirement.” –––
However, while this case has been pending on direct                 S.W.3d at ––––, 2014 WL 6734178, at *14. It concluded
appeal, the Court of Criminal Appeals considered the                that “implied consent that has been withdrawn or revoked
question of whether a warrantless search of a DWI                   by a suspect cannot serve as a substitute for the free and
suspect’s blood conducted pursuant to section 724.012(b)            voluntary consent that the Fourth Amendment requires.”
complied with Fourth Amendment requirements in State                Id. at ––––, at *11.
v. Villarreal, ––– S.W.3d at –––– – ––––,2014 WL
6734178, at *6–8. The State argued in part that the taking          Finally, the Villarreal court rejected the argument that the
of Villarreal’s blood sample was “categorically                     mandatory blood draw statute itself constituted an
reasonable” under “the consent exception [to the warrant            exception to the warrant requirement. It reaffirmed the
requirement], applicable in the form of a prior waiver              Supreme Court’s determination that, “in the absence of a
through implied consent.”4 Id. at ––––, at *10. The State           search warrant, a ‘search of the person is reasonable only
asserted that, “in light of the existence of the implied-           if it falls within a recognized exception’ to the warrant
consent and mandatory-blood-draw provisions [of the                 requirement.” Id. at ––––, ––––, at *8, 17(quoting
Transportation Code,] a driver ‘impliedly agrees ahead of           Missouri v. McNeely, ––– U.S. ––––, 133 S.Ct. 1552,
time that, in exchange for the privilege of driving on our          1558, 185 L.Ed.2d 696 (2013)). The majority in Villarreal
roads, he is willing to waive the right to a warrant in [the        rejected the dissenting justice’s opinion that “a
limited circumstances set out in the mandatory-blood-               warrantless, nonconsensual blood draw conducted
draw provisions].’ ” Id. at ––––, at *11.                           pursuant to provisions in the Transportation Code should
                                                                    be upheld as generally reasonable in light of the
*8 The Court of Criminal Appeals rejected this argument.            Legislature’s clear intent to except such a search from the
Id. It held that, “to be valid for Fourth Amendment                 warrant requirement.” Id. at ––––, at *18. In reaching its
purposes, consent must be freely and voluntarily given              conclusion, the Villarreal court relied in part on the recent
based on the totality of the circumstances, and must not            Supreme Court opinion in McNeely.
have been revoked or withdrawn at the time of the
search.” Id. (citing Schneckloth, 412 U.S. at 227, 93 S.Ct.         “McNeely reaffirmed the principle that a compelled
at 2047–48, and Florida v. Jimeno, 500 U.S. 248, 252,               physical intrusion beneath the skin to obtain evidence in a
111 S.Ct. 1801, 1804, 114 L.Ed.2d 297 (1991)). The court            criminal investigation implicates significant privacy
cited cases from several other jurisdictions that have              interests, and this privacy interest is not automatically
recently considered this issue and have rejected the                diminished simply because an individual is suspected of a
proposition that a DWI suspect waives his Fourth                    serious DWI offense.” Id. (citing McNeely, 133 S.Ct. at
Amendment rights through implied consent. Id. at ––––,              1558). McNeely also held that “ ‘the general importance
at *13–14. It also “observe[d] that almost all of the Texas         of the government’s interest in [curbing DWI offenses]
courts of appeals that have considered such challenges to           does not justify departing from the warrant requirement

                                                                v
without a showing’ that some established exception, such           search “may not be premised on the consent exception to
as exigency, applies.” Id. (quoting McNeely, 133 S.Ct. at          the warrant requirement” and that “the State must come
1565). The Court of Criminal Appeals concluded:                    forth with some other recognized exception to the warrant
                                                                   requirement”).
  [A]lthough we acknowledge the magnitude of the
  drunk driving problem in Texas and the government’s              Accordingly, we conclude that the taking of appellant’s
  legitimate and substantial interest in curbing that              blood sample here violated his Fourth Amendment rights,
  problem, we see no compelling need on the part of law            and the trial court erred in refusing to suppress the blood
  enforcement to undertake to solve this problem through           sample. See Katz, 389 U.S. at 357, 88 S.Ct. at 514;
  warrantless, nonconsensual searches of suspects’ blood.          Villarreal, –––– S.W.3d at ––––, ––––, 2014 WL
  This is particularly so in light of the fact that warrants       6734178, at *11, 14.
  for such blood testing are often readily available,
  thereby providing the “traditional justification that a
  warrant provides.” The marginal benefit to law
  enforcement in combating Texas’s drunk-driving                   3. Was the error in this case harmful?
                                                                   [17]
  problem through warrantless searches is generally                     Because the error here violated appellant’s rights under
  outweighed by an individual’s substantial privacy                the Fourth Amendment, we must reverse the judgment
  interest here.                                                   unless we determine beyond a reasonable doubt that the
                                                                   error did not contribute to the conviction or punishment.
*9 Id.(internal citations omitted) (quoting McNeely, 133           See TEX. R. APP. P. 44.2(a); Weems v. State, 434 S.W.3d
S.Ct. at 1559).                                                    655, 667 (Tex.App.–San Antonio 2014, pet. granted).

Here, it is undisputed that Officer McCandless did not             Here, the jury charge instructed the jurors that
obtain a warrant. Furthermore, appellant refused to                “intoxicated” means:
provide a breath or blood specimen after Officer
McCandless had arrested him on suspicion of DWI, and                    (A) not having the normal use of mental or physical
he refused to sign the statutory warnings that Officer                  faculties by reason of the introduction of alcohol, a
McCandless had provided to him regarding the                            controlled substance, a drug, a dangerous drug, a
consequences of his failure to provide a specimen. Under                combination of two or more of those substances, or
the totality of the circumstances, appellant had revoked or             any other substance into the body; or
withdrawn any implied consent to the blood draw at the
time of the search. Thus, we conclude that appellant did                *10 (B) having an alcohol concentration of 0.08 or
not provide consent consistent with the requirements of                 more.
the Fourth Amendment. See Schneckloth, 412 U.S. at 227,
93 S.Ct. at 2047–48; Villarreal, –––S.W.3d at ––––, ––––           (Emphasis added). The State presented Officer
, 2014 WL 6734178, at *11, 14; Gore, 451 S.W.3d at 193.            McCandless’s testimony regarding appellant’s conduct
                                                                   leading up to and following his arrest as evidence of
Furthermore, we conclude that the warrantless taking of            intoxication. The State also presented the testimony of the
appellant’s blood sample pursuant to the implied                   nurse who took appellant’s blood sample on the night he
consent/mandatory blood draw statutory scheme did not              was arrested. Finally, the State presented the testimony of
satisfy the requirements of the Fourth Amendment                   Dr. Jeff Walterscheid, the assistant chief toxicologist at
without a showing that some established exception to the           the Harris County Institute of Forensic Sciences. Dr.
warrant requirement applied. See Villarreal, –––– S.W.3d           Walterscheid testified that appellant’s blood sample
––––, ––––, 2014 WL 6734178, at *11, 18; Gore, 451                 contained .17 grams of ethanol per 100 milliliters and that
S.W.3d at 193; see also McNeely, 133 S.Ct. at 1565                 this amount of alcohol was “[r]oughly double” the legal
(holding that “the general importance of the government’s          limit in Texas.
interest in [curbing DWI offenses] does not justify
departing from the warrant requirement without a                   Given the testimony regarding the taking of appellant’s
showing’ ” that some established exception to warrant              blood sample and his toxicology results and the jury’s
requirement applies). The State did not present evidence           instruction that intoxicated means, in part, “having an
regarding any other exception to the warrant requirement           alcohol concentration of 0.08 or more,” we cannot
at the suppression hearing. See Amador v. State, 221               determine beyond a reasonable doubt that the error did
S.W.3d 666, 672–73 (Tex.Crim.App.2007) (holding that               not contribute to appellant’s conviction. See Weems, 434
once defendant establishes absence of warrant, State must          S.W.3d at 667.
prove that warrantless blood draw was reasonable under
totality of circumstances); Gore, 451 S.W.3d at 193                We conclude that the warrantless taking of appellant’s
(holding, where appellant withdrew any implied consent             blood sample in this case violated his Fourth Amendment
that she may have given and affirmatively refused to give          rights by requiring him to submit to a blood test without a
consent for warrantless blood draw, that warrantless               warrant or a recognized exception to the warrant
                                                                   requirement. We further conclude that this error was
                                                               w
harmful and accordingly remand the case for a new trial                                            Conclusion
consistent with our opinion.                                               We reverse the judgment of the trial court and remand for
                                                                           a new trial consistent with this opinion.
We sustain appellant’s second point of error with respect
to his complaint that the warrantless taking of his blood
violated his Fourth Amendment rights.



Footnotes
1        After our original consideration of this case, the Court of Criminal Appeals decided State v. Villarreal, ––– S.W.3d ––––
         , No. PD–0306–14, 2014 WL 6734178 (Tex.Crim.App. Nov. 26, 2014) (motion for reh’g granted) and this Court decided
         Gore v. State, 451 S.W.3d 182 (Tex.App.–Houston [1st Dist.] 2014, pet. filed). We invited supplemental briefing from
         the parties in light of these cases, but no supplemental briefs were filed.
2        Form THP–51 is the statutory authorization form that allows a peace officer to require that a hospital perform a
         mandatory blood draw. See TEX. TRANSP. CODE ANN. § 724.012(b) (Vernon 2011); State v. Neesley, 239 S.W.3d
         780, 782 n. 2 (Tex.Crim.App.2007).
3        On rehearing, appellant argues that his failure to object was excused under the “right not recognized” exception to the
         general rules of preservation. See Black v. State, 816 S.W.2d 350, 368 (Tex.Crim.App.1991) (Campbell, J., concurring)
         (explaining, under “right not recognized” exception, that defendant is excused from objecting if (1) claim was so novel
         that basis of claim was not reasonably available at time of trial, or (2) law was so well settled by Court of Criminal
         Appeals that objection at time of trial would have been futile). However, more recent precedent from the Court of
         Criminal Appeals has held that the “right not recognized” exception is inconsistent with current Texas law of error
         preservation. See, e.g., Sanchez v. State, 120 S.W.3d 359, 365–67 (Tex.Crim.App.2003). We also observe that this is
         not a case where the objection was insufficient or unspecific—appellant made no objection to the constitutionality of
         the statute in any way. See Karenev v. State, 281 S.W.3d 428, 434 (Tex.Crim.App.2009) (holding that facial challenge
         to constitutionality of statute is forfeitable right that is waived if defendant fails to raise it in trial court); Curry v. State,
         910 S.W.2d 490, 496 (Tex.Crim.App.1995) (holding that, to preserve error, defendant must make specific, timely
         challenge to constitutionality of statute as applied to him).
4        The State in Villarreal also argued that its search was permissible pursuant to the automobile exception, the special-
         needs exception, and the search-incident-to-arrest exception. Villarreal, –––S.W.3d at ––––, 2014 WL 6734178, at *10.
         The Court of Criminal Appeals rejected the State’s arguments on all of these grounds. Id. at –––– – ––––, at * *10–15.
         However, we do not discuss the court’s holdings on these grounds here because the only exception asserted by the
         State in the present case in the consent exception.




    End of Document                                                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.




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