                          PD-1460-15                                             PD-1460-15
                                                               COURT OF CRIMINAL APPEALS
                                                                                AUSTIN, TEXAS
                                                               Transmitted 11/9/2015 8:55:07 AM
                                                                Accepted 11/10/2015 4:06:57 PM
                                                                                 ABEL ACOSTA
                                                                                         CLERK
                           PD-____________


                   Court of Criminal Appeals of Texas


                       THE STATE OF TEXAS,
                                Petitioner

                                    v.

                          LAURA PALANZA,
                               Respondent



          State’s Petition from the 13th District Court of Appeals
(Cause #13-13-00528-CR), on State’s Appeal from the 347th District Court of
                  Nueces County (Cause #12-CR-1505-H)

     STATE’S PETITION FOR DISCRETIONARY REVIEW

                                     A. Cliff Gordon
                                     Tex. Bar #00793838
                                     Asst. Dist. Atty., 105th Dist.
                                     Nueces County Courthouse
                                     901 Leopard St., Rm. 206
                                     Corpus Christi, TX 78401
                                     361.888.0410 phone
                                     361.888.0399 fax
      November 10, 2015
                                     cliff.gordon@nuecesco.com

                                     Attorney for Petitioner
              IDENTITY OF JUDGE, PARTIES, AND COUNSEL

Trial Court Judge: Honorable Missy Medary, Presiding Judge of the 347th
              District Court of Nueces County

Petitioner:     The State of Texas, District Attorney for the 105th Judicial
                District, represented by

                Appellate counsel:

                     A. Cliff Gordon, Asst. Dist. Atty.
                     901 Leopard St., Rm. 206
                     Corpus Christi, TX 78401

                Trial and appellate counsel:

                      Mark Skurka, District Attorney
                      Jacqueline Rae, Asst. Dist. Atty.
                      901 Leopard St., Rm. 206
                      Corpus Christi, TX 78401

Respondent: Laura Palanza, represented by

                Trial and Appellate Counsel:

                      Lisa Greenberg
                      James Granberry
                      622 S. Tancahua St.
                      Corpus Christi, TX 78401




                                       i
                                         TABLE OF CONTENTS

IDENTITY OF JUDGE, PARTIES, AND COUNSEL ......................................... i
INDEX OF AUTHORITIES .................................................................................. iii
STATEMENT REGARDING ORAL ARGUMENT .......................................... iv
STATEMENT OF THE CASE .............................................................................. iv
STATEMENT OF PROCEDURAL HISTORY ................................................... iv
QUESTION PRESENTED FOR REVIEW ........................................................... v
     1. Whether the implied consent and mandatory blood draw
        provisions of the Texas Transportation Code are a
        constitutionally valid alternative to the warrant requirement ........... v
ARGUMENT ............................................................................................................1
PRAYER ....................................................................................................................1
CERTIFICATE OF COMPLIANCE ......................................................................2
CERTIFICATE OF SERVICE .................................................................................3
APPENDIX ...............................................................................................................4
     1. Opinion of the 13th Court of Appeals .....................................................4




                                                             ii
                                     INDEX OF AUTHORITIES


Cases
State v. Villarreal, No. PD-0306-14, 2014 WL 6734178 (Tex. Crim. App.
      Nov. 26, 2014), reh’g granted (Feb. 25, 2015) ............................................1
Rules
Tex. R. App. P. 66.3 .................................................................................................1




                                                          iii
             STATEMENT REGARDING ORAL ARGUMENT

      The State does not believe that oral argument would be helpful to

determine this appeal because the issue has already been argued in State v.

Villarreal, No. PD-0306-14, 2014 WL 6734178 (Tex. Crim. App. Nov. 26,

2014), reh’g granted (Feb. 25, 2015).

                        STATEMENT OF THE CASE

      A grand jury indicted Laura Palanza for Intoxication Assault.

Opinion at 2. The trial court granted her motion to suppress evidence

relating to the warrantless draw of her blood pursuant to TEX. TRANSP.

CODE § 724.012(b). Opinion at 2. The 13th Court of Appeals affirmed,

holding that § 724.012 is not a constitutionally recognized alternative to the

warrant requirement. Opinion at 5.

               STATEMENT OF PROCEDURAL HISTORY

 Date court of appeals’ Opinion handed down         October 8, 2015

         Date State filed Motion for Rehearing      n/a

          Date Motion for Rehearing overruled       n/a




                                        iv
               QUESTION PRESENTED FOR REVIEW

1.   Whether the implied consent and mandatory blood draw provisions

     of the Texas Transportation Code are a constitutionally valid

     alternative to the warrant requirement.




                                    v
                                 ARGUMENT

      Although this issue was initially decided against the State in State v.

Villarreal, No. PD-0306-14, 2014 WL 6734178 (Tex. Crim. App. Nov. 26,

2014), reh’g granted (Feb. 25, 2015), the Court has yet to issue a final

decision. Thus, the State respectfully requests that cases like the present

one, with similar or identical issues, be held under consideration until

Villarreal does become final and binding.

      The State continues to argue that the implied consent and mandatory

blood draw provisions of the Texas Transportation Code are a

constitutionally valid alternative to the warrant requirement, and that the

decision of the Thirteenth Court of Appeals to the contrary decides an

important question of federal law that has not been, but should be, settled

by the Court of Criminal Appeals. See Tex. R. App. P. 66.3(b).

                                     PRAYER

      For these reasons, the State requests that the Court grant this petition

for discretionary review, reverse the court of appeals’ judgment, and grant

the State all other proper relief.



                                       1
                                Respectfully Submitted,

                                /s/ A. Cliff Gordon
                                A. Cliff Gordon
                                Tex. Bar #00793838
                                Asst. Dist. Atty., 105th Dist.
                                Nueces County Courthouse
                                901 Leopard St., Rm. 206
                                Corpus Christi, TX 78401
                                361.888.0410 phone
                                361.888.0399 fax
                                cliff.gordon@nuecesco.com



                CERTIFICATE OF COMPLIANCE

     According to the word count of the computer program used to
prepare this document, it contains 727 words.




                               2
                     CERTIFICATE OF SERVICE

     On November 9, 2015, a true copy of the foregoing was served via
eServe on the following:

     Ms. Lisa Greenberg
     lisagreenberglaw@gmail.com
     Mr. James Granberry
     jgranberrylaw@sbcglobal.net
     622 S. Tancahua St.
     Corpus Christi, TX 78401
     Appellate Counsel for Appellee

                                /s/ A. Cliff Gordon_______________
                                A. Cliff Gordon




                                  3
                              APPENDIX

1.   Opinion of the 13th Court of Appeals




                                   4
                          NUMBER 13-13-00528-CR

                          COURT OF APPEALS

                THIRTEENTH DISTRICT OF TEXAS

                  CORPUS CHRISTI – EDINBURG

THE STATE OF TEXAS,                                            Appellant,

                                      v.

LAURA PALANZA,                                                   Appellee.


                  On appeal from the 347th District Court
                        of Nueces County, Texas.


                       MEMORANDUM OPINION
 Before Chief Justice Valdez and Justices Rodriguez and Longoria
           Memorandum Opinion by Chief Justice Valdez

      By one issue, the State appeals the trial court's granting of appellee Laura

Palanza’s motion to suppress a warrantless blood sample under the Fourth Amendment.

We affirm.

                                 I.    BACKGROUND
       After being involved in a car accident that injured another person, Palanza was

arrested for intoxication assault and transported to a hospital. At the hospital, a sample

of Palanza’s blood was taken without her consent and without a warrant. Thereafter,

Palanza filed a motion to suppress evidence of the blood sample under the Fourth

Amendment. The trial court held a hearing on Palanza’s motion to suppress.

       At the hearing on Palanza’s motion to suppress, the arresting officer testified that

he instructed the phlebotomist at the hospital to draw Palanza’s blood “because of serious

bodily injury to the other [person] involved in the accident.” The arresting officer also

testified that although he did not attempt to obtain a warrant on the night of Palanza’s

arrest, it would have taken between forty-five and ninety minutes to get one. When asked

why he failed to obtain a warrant, the arresting officer could provide no reason other than

to say that his agency had no policy requiring police officers to obtain a warrant in blood-

draw cases at the time of Palanza’s arrest.

       Citing Missouri v. McNeely, Palanza argued at the suppression hearing that no

exigent circumstance existed to permit the arresting officer to obtain a sample of her blood

without a warrant. See 133 S. Ct. 1552 (2013) (holding that, absent a showing of exigent

circumstances, warrantless blood draws in drunk-driving cases violate the Fourth

Amendment). At the end of the suppression hearing, the trial court agreed with Palanza

and granted her motion to suppress. This appeal followed.

                                 II.    MOTION TO SUPPRESS

       By its sole issue, the State contends that the trial court erred when it suppressed

evidence of the warrantless blood sample.

       A. STANDARD OF REVIEW AND APPLICABLE LAW



                                              2
       We review a trial court’s decision on a motion to suppress for an abuse of

discretion. Crain v. State, 315 S.W.3d 43, 48 (Tex. Crim. App. 2010). Under our abuse

of discretion analysis, we use a bifurcated standard of review. State v. Ross, 32 S.W.3d

853, 856 (Tex. Crim. App. 2000) (en banc) (citing Guzman v. State, 955 S.W.2d 85, 88

(Tex. Crim. App. 1997) (en banc)). We give almost total deference to the trial court’s

findings of historical fact that are supported by the record and to its resolution of mixed

questions of law and fact that turn on an evaluation of credibility and demeanor. Amador

v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007) (citing Guzman, 995 S.W.2d at 89).

We “review de novo ‘mixed questions of law and fact’ that do not depend upon credibility

and demeanor.” Id. (quoting Montanez v. State, 195 S.W.3d 101, 107 (Tex. Crim. App.

2006)).

       “To suppress evidence on an alleged Fourth Amendment violation, the defendant

bears the initial burden of producing evidence that rebuts the presumption of proper police

conduct.” Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). “A defendant

satisfies this burden by establishing that a search or seizure occurred without a warrant.”

Id. Once a defendant establishes there was no warrant, the burden shifts to the State to

prove the warrantless search was reasonable under the totality of the circumstances.

Amador, 221 S.W.3d at 672–73. The State satisfies this burden if it proves an exception

to the warrant requirement. See Gutierrez, 221 S.W.3d at 685.

       One well-recognized exception to the warrant requirement applies “when the

exigencies of the situation make the needs of law enforcement so compelling that a

warrantless search is objectively reasonable under the Fourth Amendment.” McNeely,

133 S. Ct. at 1558. A variety of circumstances may give rise to an exigency sufficient to



                                            3
justify a warrantless search, including the imminent destruction of evidence. Id. Courts

look to the “totality of circumstances” to determine whether a law enforcement officer

faced an emergency that justified acting without a warrant. Id. at 1559. In McNeely, the

United States Supreme Court recently clarified the exigency exception in the context of

warrantless blood draws in drunk-driving cases. Id. In that case, the State sought a per

se rule for blood testing in drunk-driving cases, contending that “whenever an officer has

probable cause to believe an individual has been driving under the influence of alcohol,

exigent circumstances will necessarily exist because [blood alcohol concentration (BAC)]

evidence is inherently evanescent.” Id. at 1560. As such, the State claimed that “so long

as the officer has probable cause and the blood test is conducted in a reasonable manner,

it is categorically reasonable for law enforcement to obtain the blood sample without a

warrant.” Id. The Court rejected the per se rule advocated by the State, concluding:

       [W]hile the natural dissipation of alcohol in the blood may support a finding of
       exigency in a specific case . . . it does not do so categorically. Whether a
       warrantless blood test of a drunk-driving suspect is reasonable must be
       determined case by case based on the totality of the circumstances.

Id. at 1563.    Thus, the United States Supreme Court held that in drunk-driving

investigations, “the natural dissipation of alcohol in the bloodstream does not constitute

an exigency in every case sufficient to justify conducting a blood test without a warrant.”

Id. at 1568.    In doing so, the Court reaffirmed its long-standing totality-of-the-

circumstances approach to determine whether a law enforcement officer faces an

emergency that justifies acting without a warrant under the exigency exception. Id.

       Section 724.012 of the Texas Transportation Code states in pertinent part that “[a]

peace officer shall require the taking of a specimen of the person's breath or blood under

any of the [listed] circumstances if the officer arrests the person for an offense under

                                            4
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.” See TEX.

TRANSP. CODE ANN. § 724.012(b) (West, Westlaw current through 2015 R.S.). The

applicable subsection states that an officer must take the person's blood if “the person

was the operator of a motor vehicle . . . involved in an accident that the officer reasonably

believes occurred as a result of the offense and, at the time of the arrest, the officer

reasonably believes that . . . an individual other than the person has suffered serious

bodily injury” as a direct result of the accident. Id. § 724.012(b)(1)(B).

       B. DISCUSSION

       The State argues on appeal that the arresting officer was authorized to obtain a

sample of Palanza’s blood pursuant to section 724.012(b)(1)(B) because Palanza was

arrested for an intoxication offense where an accident occurred and another person

suffered serious bodily injury. According to the State, this circumstance—serious bodily

injury to another person—will always be sufficient to supply an exigency that justifies

warrantless blood draws in drunk-driving cases. In other words, the State contends that

section 724.012(b)(1)(B) creates a per se exigent circumstance, which authorizes blood

draws in every case falling within that section. We disagree.


       Similar to the State’s argument in McNeely, the State’s categorical approach to

determining whether an exigency exists is inconsistent with McNeely’s holding that each

case be evaluated on a case-by-case basis under the totality of the circumstances. See

McNeely, 133 S.Ct. at 1563 (holding that “whether a warrantless blood test of a drunk-

driving suspect is reasonable must be determined case by case based on the totality of

the circumstances”). Furthermore, the court of criminal appeals has rejected the State’s


                                              5
argument, holding that “the provisions in the Transportation Code do not, taken by

themselves, form a constitutionally valid alternative to the Fourth Amendment warrant

requirement” and “a nonconsensual search of a DWI suspect's blood conducted pursuant

to the mandatory-blood-draw and implied-consent provisions in the Transportation Code,

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

requirement, violates the Fourth Amendment.” See State v. Villarreal, No. PD–0306–14,

2014 WL 6734178, at *20–21 (Tex. Crim. App. Nov. 26, 2014) (reh’g granted); see also

State v. Montes de Oca, No. 13-14-00289-CR, 2015 WL 4504927, at *4 (Tex. App.—

Corpus Christi July 23, 2015, no. pet. h.) (mem. op., not designated for publication) (citing

Villarreal and holding that section 724.012 of the transportation code does not by itself

form a constitutionally recognized alternative to the warrant requirement); State v.

McClendon, No. 13-13-00357-CR, 2015 WL 4116695, at *3 (Tex. App.—Corpus Christi

July 2, 2015, no. pet. h.) (mem. op., not designated for publication) (same); State v. Ruiz,

No. 13-13-00507-CR (Tex. App.—Corpus Christi Aug. 27, 2015, no. pet. h.)(mem. op.)

(holding the same as it relates to sections 724.011(a) and 724.014(a) of the transportation

code). Accordingly, we conclude that section 724.012(b)(1)(B) of the transportation code

does not, by itself, form a constitutionally recognized exception to the warrant

requirement.1 See id. Having rejected the State’s argument concerning the exigency

exception and section 724.012(b)(1)(B), we conclude that the trial court did not abuse its




       1  The State does not argue on appeal that even if section 724.012(b)(1)(B) does not provide the
required exigency alone, other evidence presented at the suppression hearing nonetheless established an
exigent circumstance.


                                                  6
discretion by granting Palanza’s motion to suppress.2 See id. We overrule the State’s

sole issue.

                                              III.     Conclusion

        We affirm the judgment of the trial court.


                                                            /s/ Rogelio Valdez
                                                            ROGELIO VALDEZ
                                                            Chief Justice


Do Not Publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
8th day of October, 2015.




          2 For the first time on appeal, the State argues that even if the exigency exception does not apply

to justify warrantless blood draws in every case falling under section 724.012(b)(1)(B), warrantless blood
draws might nonetheless be constitutionally permissible under three other exceptions to the Fourth
Amendment’s warrant requirement, including: (1) the automobile exception; (2) the consent exception; and
(3) the search incident to arrest exception. The State also argues that warrantless blood draws are
constitutional under the general Fourth Amendment balancing test, even if they do not fit into an established
exception to the warrant requirement. Finally, the State argues that the United States Supreme Court has
“mislabeled” warrantless blood draws as Fourth Amendment searches when they more properly fit the legal
definition of Fourth Amendment seizures, which, according to the State, “generally do[] not require a
warrant.” However, the State made none of these arguments to the trial court. An appellant may not raise
an argument for the first time on appeal if it could serve as a basis for reversing the trial court's ruling on a
motion to suppress. Alford v. State, 400 S.W.3d 924, 928–29 (Tex. Crim. App. 2013); State v. Mercado,
972 S.W.2d 75, 77 (Tex. Crim. App. 1998) (en banc). We therefore hold that the State has waived these
arguments by failing to present them to the trial court.

                                                       7
