                                                                                      PD-1000-15
                                                               COURT OF CRIMINAL APPEALS
                                                                               AUSTIN, TEXAS
                                                               Transmitted 8/4/2015 3:23:58 PM
                        No. _______________                      Accepted 8/6/2015 2:14:26 PM
                                                                                ABEL ACOSTA
                                                                                        CLERK
                COURT OF CRIMINAL APPEALS
                        OF TEXAS

                        The State of Texas,
                             Appellant                               August 6, 2015


                                   v.

                     Lawrence Clark Sandlin

                   from the Court of Appeals for the
                    Fifth Judicial District at Dallas

                           05-14-00072-CR



     STATE’S PETITION FOR DISCRETIONARY REVIEW



An appeal from the 416th Judicial District Court, Collin County, Texas
            The Honorable Chris Oldner, Judge Presiding


                                        Greg Willis
                                        Criminal District Attorney
                                        Collin County, Texas

                                        John R. Rolater, Jr.
                                        Chief of the Appellate Division

                                        Emily Johnson-Liu
                                        Assistant Criminal District Attorney
                                        2100 Bloomdale Rd., Suite 200
                                        McKinney, TX 75071
                                        State Bar No. 24032600
                                        (972) 548-4323 FAX (214) 491-4860
                                        ejohnson-liu@co.collin.tx.us
              Identity of Judge, Parties, and Counsel

Trial Court............................THE HONORABLE CHRIS OLDNER

                               Presiding Judge
                               416th District Court
                               Collin County, TX

Appellant ..............................THE STATE OF TEXAS

                               Greg Willis
                               District Attorney

                               Matt Rolston
                               (Former) Assistant District Attorney
                               TRIAL COUNSEL

                               Emily Johnson-Liu
                               Assistant District Attorney
                               APPELLATE COUNSEL
                               Collin County District Attorney’s Office
                               2100 Bloomdale Rd., Suite 200
                               McKinney, Texas 75071

Appellee ................................LAWRENCE CLARK SANDLIN

                               John Gioffredi
                               4131 N. Central Expressway, Ste 680
                               Dallas, Texas 75204
                               TRIAL COUNSEL

                               Jerry D. Kelly
                               4131 N. Central Expressway, Ste 110
                               Dallas, Texas 75204
                               APPELLATE COUNSEL




                                                                          i
                                       Table of Contents

Identity of Judge, Parties, and Counsel .................................................... i

Index of Authorities.................................................................................. iv

Statement Regarding Oral Argument ...................................................... 1

Statement of the Case ............................................................................... 1

Statement of Procedural History .............................................................. 1

Grounds for Review ................................................................................... 2

Issue One

          An officer’s reliance on the mandatory blood-draw
          provision for DWIs with a child passenger (Transp.
          Code § 724.012(b)(2)) was reasonable under the
          Fourth Amendment and did not require suppression
          of the blood-test results. (RR 5-25)

Issue Two

          Given that a motion for rehearing was and still is
          pending in State v. Villarreal and thus Villarreal does
          not have the status of law, the court of appeals erred
          in treating Villarreal as dictating the result in the
          instant case.

The Facts and Issues Argued Below ......................................................... 2

Argument ................................................................................................... 6

I. The blood results should not have been suppressed ........................... 6

    A. Reasonable under the Fourth Amendment ..................................... 6

    B. Sanction of exclusion is not warranted ............................................ 7




                                                                                                             ii
II. The court of appeals should not have given Villarreal
    the weight of controlling authority ................................................... 10

Prayer for Relief ...................................................................................... 13

Certificate of Service ............................................................................... 13

Certificate of Compliance ........................................................................ 13

Appendix: Opinion of the Court of Appeals




                                                                                                          iii
                                      Index of Authorities
Cases

Cole v. State, No. PD-0077-15
 (granted Apr. 22, 2015) ................................................................... 7,9,10

Davis v. United States, 131 S. Ct. 2419
 (2011)....................................................................................................... 8

Holidy v. State, No. PD-0622-14
 (granted Aug. 20, 2014) .......................................................................... 6

Illinois v. Krull, 480 U.S. 340
  (1987)....................................................................................................... 7

Karenev v. State, 281 S.W.3d 428
 (Tex. Crim. App. 2009) ............................................................................ 7

Lloyd v. State, 453 S.W.3d 544
 (Tex. App.—Dallas 2014, pet. ref ’d) .................................................. 5,10

Missouri v. McNeely, 133 S. Ct. 1552
 (2013)................................................................................................... 1, 3

Reeder v. State, No. 0601-14
 (granted Aug. 20, 2014) .......................................................................... 6

State v. Mayorga, 876 S.W.2d 176
 (Tex. App.—Dallas 1994), aff'd, 901 S.W.2d 943.................................... 9

State v. Mayorga, 901 S.W.2d 943
 (Tex. Crim. App. 1995) ............................................................................ 9

State v. Mazuca, 375 S.W.3d 294
 (Tex. Crim. App. 2012) ............................................................................ 9

State v. Sandlin, No. 05-14-00072-CR, 2015 WL 294660
  (Tex. App.—Dallas Jan. 22, 2015
(not designated for publication) ........................................................ 1, 4, 5




                                                                                                                iv
State v. Smith, No. PD-1615-14
 (granted Feb. 11, 2015) ........................................................................... 7

State v. Villarreal, PD-0306-14, 2014 WL 6734178
 (Tex. Crim. App. Nov. 26, 2014), reh’g granted (Feb. 25, 2015)......... 4, 5

Wong Sun v. United States, 371 U.S. 471
 (1963)....................................................................................................... 9

Yeager v. State, 727 S.W.2d 280
 (Tex. Crim. App. 1987) .................................................................... 10,11
Statutes, Codes, and Rules

Tex. Code Crim. Proc. art. 38.23 ............................................................... 8

Tex. Penal Code § 49.045............................................................................... 1, 3

Tex. Transp. Code § 724.012(b) ..................................................... 2,3,5,6,7

Tex. R. App. P. 66.3(b) ............................................................................... 6

Tex. R. App. P. 66.3(f).............................................................................. 10

Tex. R. App. P. 68.2(a) ............................................................................... 1




                                                                                                               v
To the Honorable Court of Criminal Appeals of Texas:


               Statement Regarding Oral Argument

     The State does not request argument.


                        Statement of the Case

     Lawrence Sandlin was indicted for DWI with a child passenger.

CR 7; Tex. Penal Code § 49.045. Sandlin filed a motion to suppress the

results of his blood test based on Missouri v. McNeely, 133 S. Ct. 1552

(2013). CR 17-19. The trial court granted the motion, and the State

appealed. CR 20.

                   Statement of Procedural History

     The court of appeals handed down its opinion on January 22,

2015. State v. Sandlin, No. 05-14-00072-CR, 2015 WL 294660 (Tex.

App.—Dallas Jan. 22, 2015) (not designated for publication). The State

timely filed a motion for rehearing on February 6, 2015, which was

denied July 14, 2015. This petition is thus timely filed on or before

August 13, 2015. Tex. R. App. P. 68.2(a).




                                                                      1
                        Grounds for Review

Issue One

      An officer’s reliance on the mandatory blood-
      draw provision for DWIs with a child passenger
      (Transp. Code § 724.012(b)(2)) was reasonable
      under the Fourth Amendment and did not
      require suppression of the blood-test results.
      (RR 5-25)

Issue Two

      Given that a motion for rehearing was still
      pending in State v. Villarreal and thus
      Villarreal did not have the status of law, the
      court of appeals erred in treating Villarreal as
      dictating the result in the instant case.

               The Facts and Issues Argued Below

I. The offense

     In June 2012—nine months before the Supreme Court’s April

2013 decision in Missouri v. McNeely—Officer Roger Smith pulled

Lawrence Sandlin over for making an unsafe lane change that forced

the police officer out of his lane. RR 5-8. Sandlin, who was driving a

Mini Cooper, had his 8-year-old daughter with him in the car and

admitted he had been drinking alcohol. RR 9, 11. Based on Sandlin’s

performance on the standard battery of field sobriety tests, Officer



                                                                     2
Smith arrested Sandlin for DWI with a child passenger under Penal

Code § 49.045. RR 10-11.

     Sandlin refused the officer’s request to voluntarily provide a

breath or blood specimen. RR 12. Relying solely on Transportation Code

§ 724.012(b)(2), which mandates a blood draw when a suspect is

arrested for DWI with a child passenger, Officer Smith directed a nurse

to take a sample of Sandlin’s blood. RR 13, 15, 17.

II. The trial court

     Sandlin moved to suppress his blood-test results under Missouri v.

McNeely, 133 S. Ct. 1552 (2013). CR 17-19. At the suppression hearing,

Sandlin’s   counsel   admitted   that   Officer   Smith’s   actions   were

“completely understandable.” RR 18. After all, the officer was relying on

a statute which, at the time, had not yet “come into question.” RR 15,

18. Nevertheless, Sandlin argued that McNeely required suppression of

warrantless blood draws conducted under the statute. RR 18-19. The

prosecutor took the opposite position, arguing that Texas’s implied

consent law in Transportation Code chapter 724 authorized the blood

draw despite McNeely. RR 19-20. The trial judge sided with Sandlin and

explained that he was “troubled” by the argument that implied consent


                                                                         3
could override a suspect’s express refusal. RR 21, 23-25. The State

appealed.

III. The court of appeals

         In its brief to the Fifth District Court of Appeals in Dallas, the

State argued that Sandlin’s warrantless blood draw was justified under

the Fourth Amendment because Sandlin, like any other driver, had

given his implicit but irrevocable consent under a statutory framework

that legitimately aimed to protect the public from the carnage caused by

drunk drivers.

         While the instant case was still pending in the Dallas court, this

Court issued its original opinion in Villarreal. State v. Villarreal, PD-

0306-14, 2014 WL 6734178, at *11 (Tex. Crim. App. Nov. 26, 2014),

reh’g granted (Feb. 25, 2015). Although Villarreal was not yet final and

a motion for rehearing had been filed in Villarreal,1 the Fifth Court of

Appeals issued its opinion in the instant case, relying on Villarreal to

affirm the suppression of the blood results. Sandlin, 2015 WL 294660.

The Dallas court quoted Villarreal at length in disposing of the State’s

complaint on appeal:



    The State filed a motion for rehearing in Villarreal in December 2014.
1


                                                                             4
     In this case, the State argues that Sandlin gave implied
     consent to provide a breath or blood specimen which was
     irrevocable   under     section   724.012(b)     of   Texas
     Transportation Code because he had a child passenger in
     the vehicle with him. In Villarreal, however, the Texas
     Court of Criminal Appeals specifically rejected this
     argument:

          To the extent the State suggests that the
          implied-consent and mandatory-blood-draw
          provisions in the Transportation Code
          categorically extinguish a DWI suspect’s right
          to withdraw consent when some aggravating
          circumstance is present, that suggestion
          cannot be squared with the requirement that,
          to be valid for Fourth Amendment purposes,
          consent must be freely and voluntarily given
          based on the totality of the circumstances, and
          must not have been revoked or withdrawn at
          the time of the search. In other words, implied
          consent that has been withdrawn or revoked
          by a suspect cannot serve as a substitute for
          the free and voluntary consent that the Fourth
          Amendment requires.

     Id. at *11 (internal citations omitted); Lloyd v. State, No.
     05–13–01004–CV, 2014 WL 7249747, at *3 (Tex.App.—
     Dallas Dec. 22, 2014, no pet. h.). The record in this
     instance clearly demonstrates that the appellee refused
     consent. Accordingly, we reject this argument.

Sandlin, 2015 WL 294660, at *2.



                                                                    5
                           Argument

I. The blood results should not have been suppressed

     This Court should grant review because the court of appeals

decided an important question of state and federal law that is unsettled

and should be settled by this Court. See Tex. R. App. P. 66.3(b). That

question is whether warrantless blood draws conducted under the

conditions listed in § 724.012 are reasonable under the Fourth

Amendment. The other outstanding question, addressed in subsection B

below, is whether the federal and state exclusionary rules require

suppression when the warrantless blood draw occurred before McNeely.

A. Reasonable under the Fourth Amendment

     Like numerous other cases, the issue in this case revolves around

whether a blood draw conducted pursuant to the implied consent and

mandatory blood draw provisions of Chapter 724 of the Transportation

Code is reasonable under the Fourth Amendment. Because this Court

has already granted review to decide this issue in numerous other

pending cases, review is also warranted in the instant case. See, e.g.,

Villarreal, No. PD-0306-14; Holidy v. State, No. PD-0622-14 (granted

Aug. 20, 2014); Reeder v. State, No. 0601-14 (granted Aug. 20, 2014);


                                                                      6
State v. Smith, No. PD-1615-14 (granted Feb. 11, 2015); Cole v. State,

No. PD-0077-15 (granted Apr. 22, 2015).

B. Sanction of exclusion is not warranted

     If an officer believed a person was driving a child around while

intoxicated and declined to provide a breath or blood sample, it would

have been objectively reasonable in June 2012 for an officer to require a

sample without a warrant. Not only that, § 724.012(b) mandated that

the officer do so. Tex. Transp. Code § 724.012(b). As Sandlin’s counsel

put it in this case, § 724.012(b) had not “come into question,” and it was

presumptively constitutional. RR 15; Karenev v. State, 281 S.W.3d 428,

434 (Tex. Crim. App. 2009) (“Statutes are presumed to be constitutional

until it is determined otherwise. The State and the trial court should

not be required to anticipate that a statute may later be held to be

unconstitutional.”).

     If anything, it is the legislature and not the officer who is to blame

if statutory blood draws turn out to be unconstitutional. Under such

circumstances, the sanction of excluding the blood evidence will not

further the aim of an exclusionary rule—deterring unlawful police

conduct. Illinois v. Krull, 480 U.S. 340, 347 (1987). At a high price to


                                                                          7
society, it would penalize officers without bringing about any greater

compliance with the laws on the books. See id. Still more, as the United

States Supreme Court recognized in Davis v. United States, it will have

a counter effect. Penalizing the blameless officer who follows the

mandate of the current law will only discourage conscientious officers

from doing their duty, where a controlling law specifically authorizes a

particular police practice. Davis v. United States, 131 S. Ct. 2419, 2429

(2011).

     Because    Texas   officers   face   these   same   incentives   and

disincentives, this Court should find that the Texas Exclusionary Rule,

like its federal counterpart, does not mechanistically require the harsh

sanction of exclusion in this circumstance. The statutory “good-faith”

exception to Texas’s Exclusionary Rule, Code of Criminal Procedure

Article 38.23(b), which exempts an officer’s good-faith reliance on a

warrant, is inapplicable here because no warrant was ever involved.

But other doctrines do apply. In order for evidence to be excluded under

Texas law, for example, the evidence must be “obtained in violation” of

a constitutional provision or statute. Tex. Code Crim. Proc. art. 38.23.

And evidence has been “obtained in violation” when that evidence is


                                                                        8
arrived at by exploiting an illegality. State v. Mayorga, 901 S.W.2d 943,

946 (Tex. Crim. App. 1995); see also Wong Sun v. United States, 371

U.S. 471, 487-88 (1963); State v. Mazuca, 375 S.W.3d 294, 300 (Tex.

Crim. App. 2012). The timing of events matters. When the crime has

not yet occurred (as in Mayorga) or the police conduct not yet illegal, the

evidence is not “within the field of exploitation.” See Mayorga, 901

S.W.2d at 946 (quoting lower court decision in State v. Mayorga, 876

S.W.2d 176, 178 (Tex. App.—Dallas 1994)). Where no court had yet held

the officer’s conduct illegal, and where a presumptively constitutional

statute appeared to mandate the actions he undertook here, Officer

Smith can hardly be said to have exploited an illegality.

     Because it is important to Texas law whether the sanction of

exclusion can be justified in these circumstances and because this Court

has already granted review of this issue in Cole v. State, No. PD-0077-

15, this Court should grant review in the instant case. This issue was

implicitly passed on by the trial court; even defense counsel

acknowledged that the officer’s actions were “understandable” at the

time he acted. RR 18. Consequently, this Court should remand to the




                                                                         9
court of appeals to decide in the first instance whether the Texas

Exclusionary Rule requires suppression.

      Alternatively, this Court should find for the reasons set out in the

State Prosecuting Attorney’s brief in Cole that suppression is not

warranted. See State Prosecuting Attorney’s Brief on the Merits, Cole v.

State, No. PD-0077-15 (filed June 4, 2015).

II. The court of appeals should not have given Villarreal the
    weight of controlling authority

      This Court should also grant review because the court of appeals’s

departure from the usual course of judicial proceedings warrants

intervention by this Court. See Tex. R. App. P. 66.3(f). Instead of

conducting its own analysis of the issue that the State presented in this

appeal, the court of appeals relied solely2 on a non-final opinion by this

Court in Villarreal.

      In Yeager v. State, another court of appeals also relied on an

opinion of this Court that was still pending on rehearing. Yeager v.




 Although the court’s decision also cites its published opinion in Lloyd v. State, that
2

decision relies exclusively on Villarreal as well. Lloyd v. State, 453 S.W.3d 544, 547
(Tex. App.—Dallas 2014, pet. ref ’d) (“With respect to the first argument, the court
of criminal appeals already considered and rejected this precise argument [in
Villarreal].”).
                                                                                    10
State, 727 S.W.2d 280, 281 n.1 (Tex. Crim. App. 1987). In that instance,

the Court of Criminal Appeals advised:

     Parties appearing before this Court and the Courts of
     Appeals should proceed with caution when relying on non-
     final opinions. An opinion which is not final is not a part
     of the jurisprudence of this State.

Yeager, 727 S.W.2d at 281 n.1. Here, the court of appeals relied on

Villarreal to the exclusion of any other analysis.

     This is not to say that a court of appeals cannot find a non-final

opinion of this Court to be persuasive authority. Of course it may do so.

After all, such a decision had the support of a majority of the judges of

this Court for at least one period of time, and indeed, in many cases, an

opinion in which a motion for rehearing is pending may ultimately

carry the weight of authority when the opinion becomes final.

     But the court of appeals in the instant case did not merely agree

with the reasoning in Villarreal. Instead, the court of appeals rejected

the State’s arguments because, in the court’s view, Villarreal required

that result. As the court of appeals explained in its opinion, Villarreal

had “specifically rejected” the State’s argument and “[a]ccordingly,” the

court of appeals rejected it. From the court of appeals’s treatment of

Villarreal, there appeared no other alternative.

                                                                       11
     Because the court of appeals ceded its authority to decide the

instant appeal based on an opinion of this Court that lacks the force of

law and thus could not dictate the result, this Court should intervene

and grant review.




                                                                      12
                           Prayer for Relief

     Wherefore, the State of Texas prays that this Court will grant the

petition and ultimately reverse the decision of the court of appeals.

                                        Respectfully submitted,

                                        Greg Willis
                                        District Attorney
                                        Collin County, Texas

                                        John R. Rolater, Jr.
                                        Chief of the Appellate Division

                                        /s/ Emily Johnson-Liu
                                        Emily Johnson-Liu
                                        Assistant District Attorney
                                        2100 Bloomdale Rd., Suite 200
                                        State Bar No. 24032600
                                        ejohnson-liu@co.collin.tx.us
                                        (972) 548-4323
                                        FAX (214) 491-4860

                        Certificate of Service

     The State has e-served counsel for Lawrence Sandlin, the

Honorable Jerry Kelly, through the eFileTexas.gov filing system and

sent a copy to The Honorable Lisa McMinn, State Prosecuting Attorney,

on this, the 4th day of August 2015.

                                        /s/ Emily Johnson-Liu




                                                                          13
                      Certificate of Compliance

     This petition for discretionary review complies with the word

limitations in Texas Rule of Appellate Procedure 9.4(i)(2). In reliance on

the word count of the computer program used to prepare this petition,

the undersigned attorney certifies that this document contains 2,046

words, exclusive of the sections exempted by Rule 9.4(i)(1).

                                /s/ Emily Johnson-Liu
                                Assistant District Attorney




                                                                      14
         APPENDIX


Opinion of the Court of Appeals,
         Jan. 22, 2015
AFFIRMED; and Opinion Filed January 22, 2015.




                                         S   In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-14-00072-CR

                           THE STATE OF TEXAS, Appellant
                                       V.
                         LAWRENCE CLARK SANDLIN, Appellee

                      On Appeal from the 416th Judicial District Court
                                   Collin County, Texas
                          Trial Court Cause No. 416-82012-2012

                             MEMORANDUM OPINION
                            Before Justices Bridges, Lang, and Evans
                                    Opinion by Justice Evans

       The State of Texas appeals the trial court’s decision to grant appellee Lawrence Clark

Sandlin’s motion to suppress. In a single issue, the State contends that the mandatory blood

draw provision of Section 724.012(b) of the Texas Transportation Code is lawful because it

authorizes irrevocable consent in narrow circumstances.        Finding no merit in the State’s

argument, we affirm the trial court’s order granting the motion to suppress.

                                         BACKGROUND

       On the evening of June 30, 2012, police officer Roger Smith noticed that a white Mini

Cooper began drifting out its lane and making unsafe lane changes. Officer Smith stopped the

car and noticed that Sandlin, the driver, had his eight-year old daughter in the car with him.

Sandlin admitted he had been consuming alcohol. Officer Smith conducted a breath test which

indicated the presence of alcohol in Sandlin’s system. Officer Smith also performed the field
sobriety tests on Sandlin which also indicated that he had been driving while intoxicated.

Sandlin was then arrested for driving while intoxicated with a passenger under fifteen years of

age. After taking him to the jail, Officer Smith requested that Sandlin provide a breath and blood

specimen and Sandlin refused. Officer Smith then informed Sandlin that pursuant to the Texas

Transportation Code, it was mandatory that Sandlin provide a sample. See TEX. TRANSP. CODE

ANN. § 724.012(b) (West 2011). A nurse then took a blood specimen from Sandlin at the jail.

         Sandlin was indicted for the felony offense of DWI with a child passenger. Sandlin filed

a motion to suppress alleging that the warrantless, nonconsensual blood draw was a violation of

his Fourth Amendment rights under the United States Constitution. The trial court granted the

motion to suppress and the State filed this appeal. While this appeal was pending, the court of

criminal appeals issued its opinion in State v. Villarreal, No. PD-0306-14, 2014 WL 6734178

(Tex. Crim. App. Nov. 26, 2014), addressing involuntary blood draws taken under the authority

of the Texas Transportation Code.

                                              ANALYSIS

         In a single issue, the State claims that the trial court erred by granting Sandlin’s motion to

suppress.    The State argues that the blood draw was lawful because the statutory scheme

establishes prospective, but irrevocable, consent in certain narrow circumstances. We disagree.

         We apply a bifurcated standard of review of a trial court’s ruling on a motion to suppress

by giving almost total deference to the trial court’s determinations of fact and reviewing de novo

the trial court’s application of law. State v. McLain, 337 S.W.3d 268, 271 (Tex. Crim. App.

2011).

         The Texas Court of Criminal Appeals recently addressed whether a warrantless,

nonconsensual testing of a DWI suspect’s blood violates the suspect’s Fourth Amendment rights.

Villarreal, 2014 WL 6734178. In Villarreal, the suspect was stopped for a traffic violation. Id.

                                                  –2–
at *1. As the suspect exhibited signs of intoxication, a DWI investigation was conducted. Id.

The suspect refused to perform standardized field sobriety tests and refused to provide a blood

specimen. Id.     After the officer discovered that the suspect had been convicted of DWI on

several occasions, the suspect’s blood was drawn over his objection based on section 724.012(b)

of the Texas Transportation Code. Id. at *2. The suspect then moved to suppress the blood test

results and the trial court granted the motion. Id. On review to the court of criminal appeals, the

State argued that the court of appeals erred in holding that a warrantless blood draw conducted

pursuant to the provisions of the transportation code violates the Fourth Amendment. Id. at *6.

The court of criminal appeals rejected the State’s contention that the implied-consent and

mandatory blood draw provisions established a constitutionally valid basis for conducting a

nonconsensual search in the absence of a search warrant. Id.

       In this case, the State argues that Sandlin gave implied consent to provide a breath or

blood specimen which was irrevocable under section 724.012(b) of Texas Transportation Code

because he had a child passenger in the vehicle with him. In Villarreal, however, the Texas

Court of Criminal Appeals specifically rejected this argument:

       To the extent the State suggests that the implied-consent and mandatory-blood-
       draw provisions in the Transportation Code categorically extinguish a DWI
       suspect’s right to withdraw consent when some aggravating circumstance is
       present, that suggestion cannot be squared with the requirement that, to be valid
       for Fourth Amendment purposes, consent must be freely and voluntarily given
       based on the totality of the circumstances, and must not have been revoked or
       withdrawn at the time of the search. In other words, implied consent that has
       been withdrawn or revoked by a suspect cannot serve as a substitute for the free
       and voluntary consent that the Fourth Amendment requires.

Id. at *11 (internal citations omitted); Lloyd v. State, No. 05-13-01004-CV, 2014 WL 7249747,

at *3 (Tex. App.—Dallas Dec. 22, 2014, no pet. h.).          The record in this instance clearly

demonstrates that the appellee refused consent. Accordingly, we reject this argument.




                                               –3–
                                        CONCLUSION

       We resolve the State’s issue against it and affirm the trial court’s order granting the

motion to suppress.



                                                         / David Evans/
                                                         DAVID EVANS
                                                         JUSTICE


Do Not Publish
TEX. R. APP. P. 47
140072F.U05




                                             –4–
                                         S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

THE STATE OF TEXAS, Appellant                        On Appeal from the 416th Judicial District
                                                     Court, Collin County, Texas
No. 05-14-00072-CR         V.                        Trial Court Cause No. 416-82012-2012.
                                                     Opinion delivered by Justice Evans.
LAWRENCE CLARK SANDLIN, Appellee                     Justices Bridges and Lang participating.

       Based on the Court’s opinion of this date, the order of the trial court granting the motion
to suppress is AFFIRMED.


Judgment entered this 22nd day of January, 2015.




                                               –5–
