                                                                 ACCEPTED
                                                            07-14-00161-CR
                                                SEVENTH COURT OF APPEALS
                                                         AMARILLO, TEXAS
                                                       1/20/2015 7:15:46 PM
                                                          Vivian Long, Clerk


         NO. 07-14-00161-CR

                                            FILED IN
              IN THE                 7th COURT OF APPEALS
                                       AMARILLO, TEXAS
         COURT OF APPEALS
                                     1/20/2015 7:15:46 PM
             FOR THE
                                          VIVIAN LONG
     SEVENTH DISTRICT OF TEXAS               CLERK
         AMARILLO, TEXAS


     REX ANN BAKER,
              APPELLANT

                   VS


   THE STATE OF TEXAS,
              APPELLEE

      ******************

     BRIEF FOR THE APPELLANT

      ******************


ORAL ARGUMENT REQUESTED
               Kelly Clark
            Attorney-at-law
            1601 Broadway
          Lubbock, Texas 79401
             (806) 765-9977

        Attorney for the Appellant
           REX ANN BAKER
ARTIES
(Rule 38.1, TEX. R. App. Proc)

A complete list of all parties to the trial court’s judgment or order appealed from,
and the names and addresses of all trial and appellate counsel includes:


For the Appellant:                                   For the State of Texas:

KELLY CLARK                                          JEFFREY FORD
1401 Crickets Ave.                                         Criminal District
                                                     Attorney
Lubbock, TX 79401                                    P.O. Box 10536
(806) 765-9977                                       Lubbock, TX 79401
(806) 744-5411 (fax)                                 (806) 775-1100
State Bar No. 00790467                               (806) 775-1154 (fax)
(Appellate Counsel)                                  (Appellate Counsel)

DAVID CROOK                                          Stephan Crane
Attorney at Law                                      Criminal District Attorney
P.O. Box 94590                                       P.O. Box 10536
Lubbock, Texas 79493                                 Lubbock, TX 79401
(806) 744-2082                                       (806) 775-1100
(Trial Counsel)                                      (806) 775-1154 (fax)
                                                     (Trial Counsel)

                                                     Laura Beth Martin
                                                     Criminal District Attorney
                                                     P.O. Box 10536
                                                     Lubbock, TX 79401
                                                     (806) 775-1100
                                                     (806) 775-1154 (fax)
                                                     (Trial Counsel)




                                          ii
TABLE OF CONTENTS


                                                                                                                   Page

PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .ii

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .iii

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .v

PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .vii

APPELLANT’S POINTS OF ERROR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2

POINT OF ERROR NUMBER ONE: THE TRIAL COURT ABUSED ITS
DISCRETION WHEN IT REFUSED TO SUPPRESS THE EVIDENCE
OBTAINED BY LAW ENFORCEMENT CONDUCTING AN ILLEGAL
BLOOD DRAW IN VIOLATION OF THE APPELLANT’S RIGHT
PROHIBITING UNREASONABLE SEARCHES AND SEIZURES UNDER
THE UNITED STATES CONSTITUTION.

POINT OF ERROR NUMBER TWO: THE TRIAL COURT ABUSED ITS
DISCRETION WHEN IT REFUSED TO SUPPRESS THE EVIDENCE
OBTAINED BY LAW ENFORCEMENT CONDUCTING AN ILLEGAL
BLOOD DRAW IN VIOLATION OF THE APPELLANT’S RIGHT
PROHIBITING UNREASONABLE SEARCHES AND SEIZURES UNDER
THE TEXAS CONSTITUTION.

POINT OF ERROR NUMBER THREE: THE TRIAL COURT
UNCONSTITUTIONALLY HARMED APPELLANT WHEN IT REFUSED
TO SUPPRESS THE RESULTS OF APPELLANT’S BLOOD ALCOHOL
CONTENT THAT WAS ONLY AVAILABLE AS A RESULT OF A BLOOD
DRAW TAKEN FOR MEDICAL PURPOSES AND PRODUCED INTO
EVIDENCE BY A SHAM GRAND JURY SUBPOENA ISSUED
SUBSEQUENT TO INDICTMENT.




                                                            iii
STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7

ARGUMENT AND AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

CONCLUSION AND PRAYER. . .. . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . .. . . .42

CERTIFICATE OF SERVICE . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . .43

CERTIFICATE OF WORD COUNT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .44




                                                    iv
INDEX OF AUTHORITIES

CASES                                                                                                       Page

Beeman v. State, 86 S.W.3d 613 (Tex. Crim. App. 2002). . . . . . . . . . . . .15, 25, 26,31

Douds v. State, 14-12-00642 CR (Tex. App.—Houston(14th
Dist June 5, 2014)(unpublished cited for persuasive
purposes only)(rehearing en banc) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 34

Florida v. Wells, 495 U.S.1, 4, 110S.Ct. 1632,
109 L.Ed 1 (1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .37

Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). . . . . . . . . , . . . . . . . . 21

Griffin v. Wisconsin, 483 U.S. 868, 873 (1987) . . . . . . . . . . . . . . . . . .. . . . . . . . . . . .24

Kelly v. State, 204 S.W.3d at 808 (Tex.Crim.App 2006) . . . . . . . . . .. . . . . . . . . . . 21

Kennemur v. State, 280 S.W.3d 305 (Tex.App.Amarillo
2008, pet.ref’d), cert denied, 556 U.S. 1191,
129 S.Ct. 2005, 173L.Ed.2d 1101 (2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 451 (1990) . . . .. . . . . . . . . . . 16

Miller El V. Dretke, 545 U.S. 231, 252 (2005). . . . . . . . . . . . . . .. . . . . . . . . .38

Missouri v. McNeely, 133 S.Ct. 1552, 1558 (2013) . . . . . . . . . . . 9, 16, 17, 18, 29, 35

Murray v. State, 245 S.W.3d 37 (Tex.App—Austin 2007)(pet filed) . . . . . . . . . . 40

People v. Chiagles, 142 N.E. 583, 584 (1923) . . . . . . . . . . . . . . . . . . . . . . . . . .11, 12

Salazar v. State, 12-13-00192 (Tex.App-Tyler August 29, 2014
unpublished cited for persuasive purposes only) . . . . . . . . . . . . . . . ..18, 19, 30, 34

Schmerber v. California, 384 U.S. 757, 766 (1966) . . . . . . . . . . . . . . . . 10, 11, 16, 17

Schneckloth v. Bustamonte, 412 U.S. 218 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . 25

State v. Baker, 12-12-00092-CR, 2013 WL 5657649 (Tex.



                                                          v
App. B Tyler Oct. 16, 2013, pet. granted) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

State v. Huse, 07-12-00383-CR (Tex.App.—Amarillo 2014)
(not published, cited for persuasive purposes only) . . . . . . . . . . . . . . . . . . . . . . . 40

Tapp v. State, 108 S.W.2d 459 (Tex.App Houston—2003 pet. ref’d ) . . . . . . . . . 40

State v. Villareal, 13-13-253CR (Tex.App.BCorpus
Christi -Edinburg 2014)(affirmed by State v. Villareal,
PD 0306 Tex.Crim.App. Dec 2014) . . . . . . . . . . . . . . . . . .10, 11, 12, 13, 14, 15, 16
                                                       17, 22, 23, 24, 25, 27, 28, 30, 32

Sutherland v. State, 07-12-00289-CR (Tex.App.—Amarillo,
April 7, 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 34, 35

Terry v. Ohio, 392 U.S. 1 (1968). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10

Union Pac. R. Co. v. Botsford, 141 U.S. 250, 251 (1891). . . . . . . . . . . . . . . . . . . . . 10

United States v. Montoya de Hernandez, 473 U.S. 531, 537 (1985) . . . . . . . . . . . . .24

Weeks v. United States, 232 U.S. 383, 392 [1913]) . . . . . . . . . . . . . . .. . . . . . . . . . . . 11

Weems v. State, 434 S.W.3d 655 (Tex.App.--San Antonio 2014) . . . . 19, 34, 35, 36

STATUTES AND AUTHORITIES                                                                                             PAGE

Federal

United States Constitution, Amendment IV . . . . . . . . . . . . . . . . . . . . , 10, 33, 34

State

Texas Constitution, Article 1§ 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

Tex. Transp. Code Ann. ' 724. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 26, 33, 42




                                                              vi
                             NO. 07-14-00161-CR


                               IN THE
                          COURT OF APPEALS
                              FOR THE
                      SEVENTH DISTRICT OF TEXAS
                          AMARILLO, TEXAS

                              REX ANN BAKER,
                                APPELLANT

                                       VS

                          THE STATE OF TEXAS,
                               APPELLEE

                        ******************

                       BRIEF FOR THE APPELLANT

                        ******************

TO THE HONORABLE COURT OF APPEALS:

      COMES NOW REX ANN BAKER, Appellant, by and through her attorney
of record, KELLY CLARK, and makes and files this, her BRIEF FOR
APPELLANT, and would show this Honorable Court as follows:

                       PRELIMINARY STATEMENT

      This is an appeal from the 137th District Court for Lubbock County, Texas,
the Honorable John McClendon, Judge presiding. Appellant was tried for the
offense of DWI 3rd or More. A jury found Appellant guilty of the charge.



                                       vii
Appellant received seventy eight years of incarceration in the Texas Department of
Criminal Justice from the jury. Id. Appellant did not testify during the trial.


                     APPELLANT’S POINTS OF ERROR

POINT OF ERROR NUMBER ONE: THE TRIAL COURT ABUSED ITS
DISCRETATION WHEN IT REFUSED TO SUPPRESS THE EVIDENCE
OBTAINED BY LAW ENFORCEMENT CONDUCTING AN ILLEGAL
BLOOD DRAW IN VIOLATION OF APPELLANT’S RIGHT
PROHIBITING UNREASONABLE SEARCHES AND SEIZURES UNDER
THE UNITED STATES CONSTITUTION.

POINT OF ERROR NUMBER TWO: THE TRIAL COURT ABUSED ITS
DISCRETATION WHEN IT REFUSED TO SUPPRESS THE EVIDENCE
OBTAINED BY LAW ENFORCEMENT CONDUCTING AN ILLEGAL
BLOOD DRAW IN VIOLATION OF THE APPELLANT’S RIGHT
PROHIBITING UNREASONABLE SEARCHES AND SEIZURES UNDER
THE TEXAS CONSTITUTION.

POINT OF ERROR NUMBER THREE: THE TRIAL COURT
UNCONSTITUTIONALLY HARMED APPELLANT WHEN IT REFUSED
TO SUPPRESS THE RESULTS OF APPELLANT’S BLOOD ALCOHOL
CONTENT THAT WAS ONLY AVAILABLE AS A RESULT OF A BLOOD
DRAW TAKEN FOR MEDICAL PURPOSES AND PRODUCED INTO
EVIDENCE BY A SHAM GRAND JURY SUBPOENA ISSUED
SUBSEQUENT TO INDICTMENT.




                               STATEMENT OF FACTS

      On April 6, 2013, Trooper Bures of the Texas Department of Public Safety

responded to an automobile accident in
                                          2
the general area of County Road 2800 just south of 2641. Reporter’s Record, Vol.

3 p. 50. When Bures arrived, there was already a deputy from the Lubbock County

Sheriff’s Office at the scene. Reporter’s Record, Vol. 3 p. 50. Bures then assumed

command of the scene as the investigating officer. Reporter’s Record, Vol. 3 p.

50. Appellant was found in the car in the front seat portion with testimony

conflicting as to whether she was in the seat or in the floor board. Appellant was

evaluated at the scene by EMS. Reporter’s Record, Vol. 3 p. 68, 69. Appellant

was transported to University Medical Center Hospital with serious injuries. Id.

      Bures did not ride with Appellant in the ambulance, nor did he immediately

follow the ambulance. In one portion of the testimony Officer Bures indicated that

he did not immediately proceed to the hospital. Reporter’s Record, Vol. 3 p. 82.

Testimony conflicted as to the exact amount of time that elapsed between the

ambulance taking Appellant to the hospital and Bures leaving the scene of the

accident. The delay was based on Bures remaining at the scene while the vehicle

Appellant was found in was inventoried. Bures remained at the scene ten to

fifteen minutes despite another law enforcement officer being on scene. Id.

      Upon Bures’ arrival at the hospital, he approached medical personnel and

requested to speak to Appellant. Reporter’s Record, Vol. 3 p. 84. He was initially

told that she was in no condition to speak. Id. Bures heard her making comments

about drinking and began to form ideas
                                         3
regarding the need for further investigation into the possibility of intoxication. At

some point during Appellant’s treatment for injuries, Bures returned to his patrol

vehicle, performed a criminal history check on Appellant, and determined that

sufficient priors existed for him to order the medical staff to conduct a mandatory

blood draw pursuant to the Texas Transportation Code Section 724. Bures

returned to the treatment room and instructed Nurse Ryan Temple to conduct a

blood draw pursuant to the statute. Reporter’s Record, Vol. 3 p. 92 During the guilt

innocence phase, Bures testified that when Appellant refused to consent to

providing a sample, he completed a blood draw pursuant to the authority provided

by the mandatory blood draw statute. Reporter’s Record, Vol. 7 p. 81. The

question posed to Bures was asked during trial what he did after Appellant refused

to consent to a draw and he stated, “I went ahead and took the blood for a – did a

mandatory blood draw.” Reporter’s Record, Vol. 7 p. 81. Later Bures testified

that he was concerned that they were giving her fluids/saline and did not know

whether or not she was being given narcotics. Reporter’s Record, Vol. 7 p. 108.

Bures testified that the blood draw taken at his demand was obtained at 8:25 p.m.

The blood draw occurred forty minutes after Bures arrived at the scene of the

accident. Appellant was removed from the car, evaluated by EMS, and taken from

the scene by ambulance to University Medical Center. Bures testified that he

stayed to oversee an inventory of the car
                                            4
for five to ten minutes, then drove to UMC. Bures entered the hospital and sought

contact with Appellant and was refused by medical personnel. Bures went to his

car to conduct a criminal history inquiry and returned to the room to obtain a

mandatory draw as indicated by testimony. Reporter’s Record, Vol. 7 p. 81-86.

Testimony indicated that he was concerned about the compromise of the blood

evidence, he did not know whether she was being given pain killers, and he did not

ask. Reporter’s Record, Vol. 3 p. 93. Bures testified that he did not attempt to get

a warrant to obtain a blood sample but was aware of the methods and means of

obtaining a warrant for blood for a patient a University Medical Center.

Reporter’s Record, Vol. 7 pp. 81, 82, 109. The testimony was clear that Bures did

not attempt to procure a warrant. Bures testified that he had information that it

would take between twenty and thirty minutes to obtain a warrant for Appellant’s

blood. Id. Bures testified that he delayed leaving the scene of the accident to

oversee with the inventory of the vehicle, arrived at the treatment room and asked

permission to converse with Appellant. Bures testified that Appellant was not a

suspect of anything until he reached the hospital and heard her answers and

smelled the alcohol on her breath. Bures then stated that based on a criminal

history check on his in car computer he discovered that Appellant had a history

which formed his basis to obtain a blood sample, but he insisted that the basis of

the blood draw was mostly on exigent
                                          5
circumstance relating to the treatment of Appellant. Reporter’s Record, Vol. 3 pp.

67- 72. Bures testified that he did not investigate if any of his fears regarding the

introduction of medications or fluids that might taint the blood evidence either at

the time of his formation of some belief as to exigent circumstances or afterwards.

Reporter’s Record, Vol. 3 p. 93.

     Appellant objected to the use of the blood secured for use in diagnosis

treatment of Appellant in rendering a blood alcohol content for use as evidence at

trial. Reporter’s Record, Vol. 7 pp. 28-32. Testimony showed that the blood

drawn and used for medical treatment was only to be used for medical and not

legal purposes. Reporter’s Record, Vol. 3 p. 50. The prosecution caused to have

issued a grand jury subpoena for the purposes of using the medical blood draw

within the prosecution of Appellant for the offense of DWI. Reporter’s Record,

Vol. 5 p. 26. It appears from the testimony and arguments that the grand jury

subpoena for Appellant’s medical records was issued well after the grand jury

investigation had ended and was in response to an inclination that the mandatory

blood test might fall to a constitutional challenge in light of the holdings in

McNeely. The medical blood draw evidence was used in addition to the blood

sample obtained by the mandatory blood draw statute bolstered by claims of

exigent circumstances.

                           Summary of the Argument
                                           6
       Appellant was involved in a one car accident. Trooper Bures responded to

the accident. Appellant was transported to the hospital by ambulance where she

was treated for serious injuries. Trooper Bures remained on scene for five to ten

minutes then followed Appellant to the hospital. Trooper Bures indicated that

Appellant was not a suspect until statements and evidence arose at the hospital.

Trooper Bures asked for consent to obtain a blood sample. Appellant refused.

Trooper relied on the mandatory blood draw provisions of the Texas

Transportation Code in conjunction with Appellant’s criminal history. Trooper

Bures testified several times that the draw was a mandatory draw. Since the date

of the accident, the mandatory blood draw statute was under great scrutiny. At the

motion to suppress the blood alcohol result obtained as a result of the mandatory

draw, Trooper Bures added a claim of exigent circumstances to support his

rationale from drawing the blood. Appellant argues to this Court that the blood

draw was illegal and the claim by Trooper Bures is not supported by his testimony

or the facts.

       Appellant argues that the use of the medical blood sample is constitutionally

impermissible based on a reasonable expectation of privacy in her medical r3cords

and treatment. This Court has ruled contrary to her position. Appellant reqests

that this court re-examine the ruling in a similar case and further consider the

                                          7
distinction between the cases that involve the use of grand jury subpoenas in

manner that appears to make the usage simply a sham upon the trial courts.



                            ARGUMENT AND AUTHORITIES

POINT OF ERROR NUMBER ONE: THE TRIAL COURT ABUSED ITS
DISCRETATION WHEN IT REFUSED TO SUPPRESS THE EVIDENCE
OBTAINED BY LAW ENFORCEMENT CONDUCTING AN ILLEGAL
BLOOD DRAW IN VIOLATION OF APPELLANT’S RIGHT
PROHIBITING UNREASONABLE SEARCHES AND SEIZURES UNDER
THE UNITED STATES CONSTITUTION.

POINT OF ERROR NUMBER TWO: THE TRIAL COURT ABUSED ITS
DISCRETATION WHEN IT REFUSED TO SUPPRESS THE EVIDENCE
OBTAINED BY LAW ENFORCEMENT CONDUCTING AN ILLEGAL
BLOOD DRAW IN VIOLATION OF THE APPELLANT’S RIGHT
PROHIBITING UNREASONABLE SEARCHES AND SEIZURES UNDER
THE TEXAS CONSTITUTION.


                                     ***********

      Appellant claims that the conduct of the state actors involved in the

investigation and collection of evidence in this case violated her constitutional rights

on both the federal and state levels. Appellant believes that it is appropriate to

argue the points of error together and does not believe that doing so violates the

prohibition of multifarious arguments within an appellate brief.

                                    ************

      The law surrounding mandatory blood draws developed rapidly after the

Appellant’s arrest and during the preparation for trial upon the matter. Multiple

                                           8
cases were decided within that State that addressed the constitutionality and effects

of rulings made by the United States Supreme Court in McNeely v. Missouri would

have on the use of the statutes within the Texas Transportation Code mandating

the collection of blood samples when persons believed to be intoxicated met certain

criteria.   A review of the decisions leading to the current state of the law is

important because of the light it sheds on the development of the testimony

presented in the matter before the trial court and relied upon in the appeal of this

case.

        The Fourth Amendment protects the “right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable searches and seizures."

U.S. Const, amend. IV. "The Fourth Amendment protects people, not places." Terry

v. Ohio, 392 U.S. 1 (1968). The Terry opinion confirms that “[t]his inestimable right

of personal security belongs as much to the citizen on the streets of our cities as to

the homeowner closeted in his study to dispose of his secret affairs." Id. at 8-9. The

Terry Court continued stating, "[W]herever an individual may harbor a reasonable

expectation of privacy, he is entitled to be free from unreasonable governmental

intrusion." Id. at 9.   More than a century ago in 1891, the United States Supreme

Court stated that "[n]o right is held more sacred, or is more carefully guarded, by

the common law, than the right of every individual to the possession and control of

his own person, free from all restraint or interference of others, unless by clear and

unquestionable authority of law." Id. (quoting Union Pac. R. Co. v. Botsford, 141

                                          9
U.S. 250, 251 (1891)). The United States Supreme Court has recognized "[t]he

security of one's privacy against arbitrary intrusion by the police as being 'at the

core of the Fourth Amendment' and 'basic to a free society.'" Schmerber v.

California, 384 U.S. 757, 766 (1966) (quoting Wolf v. Colorado, 338 U.S. 25, 27

(1948)). "Of course, the specific content and incidents of this right must be shaped

by the context in which it is asserted." Terry, 392 U.S. at 9. The Terry Court

addressed concerns that the Fourth Amendment would be used in an attempt to

expand the protections contemplated by the Court by expressing, “For what the

Constitution forbids is not all searches and seizures, but unreasonable searches and

seizures." Id.   The regularly accepted exceptions to this warrant requirement

include voluntary consent and provable exigent circumstances.

      The Thirteenth District Court of Appeals for the State of Texas recently

affirmed a trial court=s decision to suppress evidence obtained in the absence of a

warrant in reliance on the repeat offender statute of the Texas Transportation

Code. In affirming the trial court the Thirteenth Court of Appeals stated, AGiven

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

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

demonstrate that the involuntary blood draw was reasonable under the Fourth

Amendment or that an exception to the Fourth Amendment's warrant requirement

is applicable to this case, as was its burden.”     State v. Villareal, 13-13-253CR

(Tex.App.BCorpus Christi -Edinburg 2014)(affirmed by State v. Villareal, PD 0306-

                                         10
14 (Tex.Crim.App. Dec 2014).     The Thirteenth Court ruled in this manner in a case

involving a driver suspected of DWI with multiple previous convictions stating, “In

this case, as will often be true when charges of driving under the influence of alcohol

are pressed, these [Fourth Amendment issues] . . . arise in the context of an arrest

made by an officer without a warrant." State v. Villareal, 13-13-253CR

(Tex.App.BCorpus Christi -Edinburg 2014)(affirmed by State v. Villareal, PD 0306-

14 (Tex.Crim.App. Dec 2014)(citing Schmerber, 384 U.S. at 768).          The Villareal

Court acknowledged, AHere, there is no dispute that there was "probable cause for

the officer to arrest . . . [appellee] and charge him with DWI." Id. The Thirteenth

Court acknowledged that the trial court specifically found "credible Officer

Williams' testimony that the Defendant appeared to be intoxicated based on his red

watery eyes, slurred speech, and swaying back and forth." Id.

      "[E]arly cases suggest that there is an unrestricted 'right on the part of the

government always recognized under English and American law, to search the

person of the accused when legally arrested, to discover and seize the fruits or

evidences of crime.'" State v. Villareal, 13-13-253 CR (Tex.App.BCorpus Christi -

Edinburg 2014)(affirmed by the Texas Court of Criminal Appeals PD-0306-14)

(quoting Weeks v. United States, 232 U.S. 383, 392 [1913]) (citing People v. Chiagles,

142 N.E. 583, 584 (1923). Villareal acknowledged the concept that, "[t]he mere fact

of a lawful arrest does not end our inquiry." State v. Villareal, 13-13-253CR

(Tex.App.BCorpus Christi-Edinburg 2014) (affirmed by the Texas Court of

                                          11
Criminal Appeals PD-0306-14).      The Villareal Court went on to analyze searches

that appear to result from the mere arrest of a person who has been arrested for a

DWI with the additional facts that there has been an indication to the officers that

multiple previous DWI convictions of the suspect exist stating, “The suggestion of

these cases apparently rests on two factors. . . >[F]irst, there may be more immediate

danger of concealed weapons or of destruction of evidence under the direct control

of the accused.=@ Id. (citing United States v. Rabinowitz, 339 U.S. 56, 72-73 (1950)

(Frankfurter, J., dissenting)). The Villareal Court went on to include, "Second, once

a search of the arrested person for weapons is permitted, it would be both

impractical and unnecessary to enforcement of the Fourth Amendment's purpose to

attempt to confine the search to those objects alone." State v. Villareal, 13-13-253CR

(Tex.App.BCorpus Christi -Edinburg 2014)(affirmed by State v. Villareal, PD 0306-

14 (Tex.Crim.App. Dec 2014). (citing Chiagles, 142 N.E. at 584). Having conducted

that analysis, the Villareal Court then opined: "Whatever the validity of these

considerations in general, they have little applicability with respect to searches

involving intrusions beyond the body's surface." State v. Villareal, 13-13-253CR

(Tex.App.BCorpus Christi -Edinburg 2014)(citations omitted) (affirmed by the

Texas Court of Criminal Appeals PD-0306-14).

      “Mandatory administration of a blood test . . . plainly involves the broad

apparent reach of a search and seizure under the United States Constitution=s

Fourth Amendment.” State v. Villareal, 13-13-253CR (Tex.App.BCorpus Christi -

                                          12
Edinburg 2014) (affirmed by the Texas Court of Criminal Appeals PD-0306-14).

AThe important interests in human dignity and privacy protected by the Fourth

Amendment prohibit any such intrusions on the mere chance that desired evidence

might be obtained." State v. Villareal, 13-13-253CR (Tex.App.BCorpus Christi -

Edinburg 2014) (affirmed by the Texas Court of Criminal Appeals PD-0306-14).

The Villareal Court went further explaining that the demand for exigent

circumstances does not disappear with the mere presence of a state statute implying

consent opining that, “In the absence of a clear indication that in fact such evidence

will be found, these fundamental human interests require law officers to suffer the

risk that such evidence may disappear unless there is an immediate search." State v.

Villareal, 13-13-253CR (Tex.App.BCorpus Christi -Edinburg 2014)(citations

omitted) (affirmed by the Texas Court of Criminal Appeals PD-0306-14).

      Appellant does not expect that the State will argue that the administration of

the blood test in this case was free of the constraints of the Fourth Amendment.

Even the tests contemplated by the Texas Transportation Code plainly constitute

searches of 'persons,' and depend initially upon seizures by arrest of ‘persons’

within the meaning of the Fourth Amendment.             The Villareal Court stated,

"Because we are dealing with intrusions into the human body rather than with state

interferences with property relationships or private papersC 'houses, papers, and

effects'C[the United States Supreme Court has] . . . writ[t]e[n] on a clean slate."

State v. Villareal, 13-13-253CR (Tex.App.BCorpus Christi -Edinburg 2014)(affirmed

                                          13
by State v. Villareal, PD 0306-14 (Tex.Crim.App. Dec 2014)(citations omitted). AThe

Fourth Amendment's proper function is to constrain, not against all intrusions as

such, but against intrusions which are not justified in the circumstances, or which

are made in an improper manner." Id.(citations omitted).        The Texas Court of

Criminal Appeals explicitly held that the mandatory blood draws were

unconstitutional and did not create a legislative exemption to the right of the people

to be free from unreasonable searches or seizures under the federal and Texas

Constitutions. State v. Villareal, PD 03056-14 (Tex.Crim.App. Dec 2014)(affirming

State v. Villareal, 13-13-253CR (Tex.App --Corpus Christi --Edinburg. 2014)).

      As in Villareal, while the facts which established probable cause to arrest in

this case also suggested the required relevance and likely success of a test of

appellee's blood for alcohol, the question remains whether the arresting officer was

permitted to draw these inferences himself or he was required instead to procure a

warrant before proceeding with the test. "Search warrants are ordinarily required

for searches of dwellings, and absent an emergency, no less could be required where

intrusions into the human body are concerned." State v. Villareal, 13-13-253CR

(Tex.App.BCorpus Christi -Edinburg 2014)(affirmed by the Texas Court of

Criminal Appeals PD-0306-14). The Fourth Amendment to the United States

Constitution is clear as to the requirement “that a warrant be obtained [and] that

inferences to support the search be drawn by a neutral and detached magistrate

instead of being judged by the officer engaged in the often competitive enterprise of

                                          14
ferreting out crime." Id. "The importance of informed, detached and deliberate

determinations of the issue whether or not to invade another's body in search of

evidence of guilt is indisputable and great." Id. (citations omitted).

      The Texas Court of Criminal Appeals stated that, “[s]earches conducted

pursuant to a warrant will rarely require any deep inquiry into reasonableness."

Beeman v. State, 86 S.W.3d 613 (Tex. Crim. App. 2002). The Texas Court of

Criminal Appeals has "made clear that drawing the suspect's blood pursuant to a

search warrant [does]. . . not. . . offend[] the Constitution." State v. Villareal, 13-13-

253CR (Tex.App.BCorpus Christi -Edinburg 2014)(citing Beeman v. State, 86

S.W.3d 613 (Tex. Crim. App. 2002) (affirmed by the Texas Court of Criminal

Appeals PD-0306-14). Villareal also opined that “[a] warrant assures the citizen that

the intrusion is authorized by law, and that it is narrowly limited in its objectives

and scope." State v. Villareal, 13-13-253CR (Tex.App.BCorpus Christi -Edinburg

2014) (affirmed by the Texas Court of Criminal Appeals PD-0306-14)(citing Skinner

v. Railway. Labor Executives' Ass'n, 489 U.S. 602, 622 (1989). "A warrant also

provides the detached scrutiny of a neutral magistrate, and thus ensures an

objective determination whether an intrusion is justified in any given case." Id.

      Similar to Villareal, in this case, there was no warrant; however, "the

warrant requirement is subject to exceptions." State v. Villareal, 13-13-253CR

(Tex.App.BCorpus Christi -Edinburg 2014) (affirmed by the Texas Court of

Criminal Appeals PD-0306-14) (citing Missouri v. McNeely, 133 S.Ct. 1552, 1558

                                            15
(2013). The United States Supreme Court has recognized only certain limited

exceptions that trump the freedom and liberty of an individual to "[t]he integrity of

an individual's person"C"a cherished value of our society." Schmerber v. California,

384 U.S. 757 (1966) ("Search warrants are ordinarily required for searches of

dwellings, and absent an emergency, no less could be required where intrusions into

the human body are concerned.")        The United States Supreme Court recently

restated that “[s]uch an invasion of bodily integrity implicates an individual's 'most

personal and deep-rooted expectations of privacy.'" Missouri v. McNeely, 133 S.Ct.

1552, 1558 (2013)(quoting Winston v. Lee, 470 U.S. 753, 760 (1985)).         Villareal

acknowledged that drunk driving was a serious problem stating that "[n]o one can

seriously dispute the magnitude of the drunken driving problem or the States'

interest in eradicating it." State v. Villareal, 13-13-253CR (Tex.App.BCorpus Christi

-Edinburg 2014)(affirmed by State v. Villareal, PD 0306-14 (Tex.Crim.App. Dec

2014). (quoting, Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 451 (1990).

Villareal echoed the concern expressing, “Certainly we do not." State v. Villareal,

13-13-253CR (Tex.App.BCorpus Christi -Edinburg 2014) (affirmed by the Texas

Court of Criminal Appeals PD-0306-14) (citing McNeely, 133 S.Ct. at 1565.) "While

some progress has been made, drunk driving continues to exact a terrible toll on our

society." Id. "But the general importance of the government's interest in this area

does not justify departing from the warrant requirement without showing exigent

circumstances that make securing a warrant impractical in a particular case." Id.

                                          16
      AWhether a warrantless blood test of a drunk-driving suspect is reasonable

must be determined case by case based on the totality of the circumstances."

Missouri v. McNeely, 133 S.Ct. 1552 (2013). In Schmerber, the United States

Supreme Court held that a police officer "might reasonably have believed that he

was confronted with an emergency, in which the delay necessary to obtain a

warrant, under the circumstances, threatened the destruction of evidence."

Schmerber v. California, 384 U.S. 757 (1966). The officer might believe that "there

are special circumstances . . . [and] no time to seek out a magistrate and secure a

warrant." Id. at 771. If so, then under the precedent of the United States Supreme

Court, the Court would be "satisfied that the test chosen to measure . . . appellee's

blood-alcohol level was a reasonable one." Id. Extraction of blood samples for

testing is a highly effective means of determining the degree to which a person is

under the influence of alcohol. Id. However, it bears repeating "[t]hat . . . [the

United States Supreme Court has held] that the Constitution does not forbid the

States minor intrusions into an individual's body under stringently limited

conditions in no way indicates that it permits more substantial intrusions, or

intrusions under other conditions." Id. emphasis added).

      The Fourteenth Court of Appeals revisited the matter in Douds v. State, 14-

12-00642 CR (Tex. App.—Houston(14th Dist June 5, 2014)(unpublished cited for

persuasive purposes only)(rehearing en banc)          The matter was originally

undertaken prior to the decision rendered by the United States Supreme Court in

                                         17
the matter of Missouri v. McNeely, 133 S.Ct. 1552 (2013). In the opinion, the court

was very clear that the absence of exigent circumstances or other acceptable

exceptions to the warrant requirement would render the evidence seized in violation

of a defendant’s constitutional rights inadmissible under Texas law. Additionally in

Douds, the Court discussed the elapse of time between the accident investigation’s

conclusion and the time of the transportation from the scene and completion of the

blood draws and found any explanation to support a warrant exception lacking. Id.

      In the matter of Salazar v. State, 12-13-00192 (Tex.App-Tyler August 29,

2014) (unpublished cited for persuasive purposes only) the defendant was charged

with DWI after an officer discovered the defendant in a car which had been driven

through a fence and into a pasture. The officers determined that the defendant had

at least two prior convictions for DWI. The officers conducted a mandatory blood

draw in compliance with Chapter 724 of the Texas Transportation Code. The Tyler

Court held that a lack of explanation of effort to obtain a warrant in the absence of

recognized exceptions to the warrant requirement was fatal to the admission of the

evidence.      Salazar   v.   State,   12-13-00192    (Tex.App-Tyler     August    29,

2014)(unpublished cited for persuasive purposes only). The Salazar Court stated,

“In the instant case, the State relied solely on Section 724 and offered no evidence of

any other recognized exception to the Fourth Amendment that would have

permitted it to have Appellant's blood drawn without a warrant. Id. Accordingly,

we hold that the trial court abused its discretion in denying Appellant's motion to

                                          18
suppress.”    Salazar v. State, 12-13-00192 (Tex.App-Tyler August 29, 2014)(

unpublished cited for persuasive purposes only).         The Salazar court provided

references to the state of the law in Texas stating,

             We recently addressed an issue similar to Appellant's sole
             issue in Gentry v. State. There, we considered the analyses
             of several of our sister courts of appeals and likewise held
             that (1) the implied consent and mandatory blood draw
             statutory schemes found in the transportation code are
             not exceptions to the warrant requirement under the
             Fourth Amendment and (2) to be authorized, the state's
             warrantless blood draw must be based on a well-
             recognized exception to the Fourth Amendment. See id.,
             slip op. at 5–6 (citing Aviles v. State, No. 04-11-00877-CR,
             2014 WL 3843756, at *2–3 (Tex. App.–San Antonio Aug.
             6, 2014, pet. filed) (op., not designated for publication);
             State v. Ballard, No. 11-13-00224-CR, 2014 WL 3865815,
             at *3 (Tex. App.–Eastland July 31, 2014, no pet. h.) (mem
             op., not designated for publication); Weems v. State, No.
             04-13-00366-CR, 2014 WL 2532299, at *8 (Tex. App.–San
             Antonio May 14, 2014, pet. filed) (op., not designated for
             publication); Sutherland v. State, No. 07-12-00289-CR,
             2014 WL 1370118, at *1–2 (Tex. App.–Amarillo Apr. 7,
             2014, pet. filed) (op., not designated for publication); State
             v. Villarreal, No. 13–13–00253–CR, 2014 WL 1257150, at
             *11 (Tex. App.– Corpus Christi Jan. 23, 2014, pet.
             granted) (op., not designated for publication); see also
             Aviles v. Texas, 134 S.Ct. 902, 187 L.Ed.2d 767 (2014).


Salazar v. State, 12-13-00192 (Tex.App-Tyler August 29, 2014)(unpublished cited for

persuasive purposes only).

      As the testimony based on police reports reflect in the matter before this

honorable Court, an attempt was made to demonstrate a recognized exception to the

warrant requirement, that of an exigent circumstance, , but no reference to the

                                           19
existence of the exigent circumstances was made until the testimony of the trooper

elicited at the Motion to Suppress hearing.       Multiple officers were present to

investigate the accident and secure any warrant that was needed to obtain the blood

draw. The testimony at trial indicates only a five or ten minute delay in Trooper

Bures following Defendant to the hospital where the draw could occur, and further,

no delays at the hospital in drawing the blood upon the demand of Trooper Bures

were proven.      The testimony relying on reports and call sheets indicate that

Trooper Bures arrived on scene of the accident at 7:45 p.m. Appellant was

transported to the hospital at around 7:55 p.m., and the blood draw was completed

at 8:25 p.m. Reporter’s Record, Vol. 7 p. 84. It would be counter-intuitive for the

prosecution to claim that delays caused by accident investigation or hospital delays

created exigent circumstances that would allow for the blood draw without a

warrant. Testimony revealed that the University Medical Center emergency room

facility is equipped with office equipment or forms to allow for an expedient

completion of the affidavits and requests for a search warrant to be transmitted to a

local judge or magistrate able to grant a search warrant upon presentation of

probable cause. The occurrences in this case demonstrated that the officers failed to

seek and secure a search warrant and no facts exist that fulfill the requirements of a

recognized exception to the warrant requirement.

      The state, in this case, must stipulate that there was no consent as set forth in

the testimony and no warrant for the blood draw in this case. Therefore, the burden

                                          20
of proof shifts to the State to establish that the involuntary blood draw was

reasonable under a recognized exception to the Fourth Amendment's warrant

requirement. Kelly v. State, 204 S.W.3d at 808, 819 n.22 ("[Once] appellee carried

this initial burden, . . . the prosecution . . . assumed the burden of proof with the risk

of nonpersuasion"); Ford, 158 S.W.3d at 492.          The Texas      Court of Criminal

Appeals has recently opined that the mandatory blood draw statute contained

within §724 of the Texas Transportation Code is unconstitutional and reliance on

that statute will not salvage an unconstitutional search even conducted in good faith

reliance on the statute. State v. Villareal, PD 0306-14 (Tex.Crim.App. Dec 2014).

      In this case, in light of the recent Villareal opinion, the State will not likely

argue that it meets its burden and that the trial court properly denied Appellant’s

motion to suppress because it established that the blood draw was performed

pursuant to the repeat offender provision or the transportation of another for

medical treatment provision of the mandatory blood draw law, Section 724.012 of

the Texas Transportation Code, which provides in relevant part as follows:

      (b) A peace officer shall require the taking of a specimen of the person's

breath or blood under any of the following circumstances If the officer arrests the

person for an offense under Chapter 49, Penal Code, involving the operation of a

motor vehicle or a watercraft and the person refuses the officer's request to submit

to the taking of a specimen voluntarily:

      (1) the person was the operator of a motor vehicle or watercraft involved in

                                            21
an accident that the officer reasonably believes occurred as a result of the offense

and

      (C) an individual other than the person has suffered bodily injury and been

transported to a hospital or other medical facility for medical treatment

      (3) at the time of the arrest, the officer possesses or receives reliable

information from a credible source that the person . . .

      (B) on two or more occasions, has been previously convicted of or placed on

community supervision for an offense under Section 49.04, 49.05, 49.06, or 49.065,

Penal Code, or an offense under the laws of another state containing elements

substantially similar to the elements of an offense under those sections.      Tex.

Transp. Code Ann. ' 724.012(b)(3)(B) (emphasis added).

      The state must base its argument on the claim of exigent circumstances

arising from possible medical treatment provided to Appellant under the judgment

of medical personnel that were caring for Appellant on the night of the event. The

testimony was clear at the pretrial suppression motion that Trooper returned to his

car to run a criminal history check and then returned to the emergency room and

ordered the medical personnel to collect a blood sample under the authority of the

mandatory blood draw statute. Only after a similar search was conducted in the

McNeely case and addressed by the United States Supreme Court, did Trooper

Bures modify his rationale for collecting the blood sample and claim it was a

recognized exception to the warrant requirement as a seizure in the light of exigent

                                          22
circumstances. At both the suppression hearing and the guilt innocence phase of the

trial, testimony showed that Trooper Bures ordered the medical personnel to draw

the blood based on the mandatory blood draw statute but later addressed his

concern for exigent circumstance; however, the veracity of his claim fails in that at

the suppression hearing Trooper Bures claims to have been concerned about the

introduction of narcotics into the blood stream and the effects on future testing, but

at the guilt innocence phase the exigency arose from the introduction of additional

fluids that would presumptively dilute the BAC in Appellant’s blood.              The

generation of exigent circumstance months after the reports were written and while

ample time existed for the trooper to supplement his report with his concerns about

the exigencies of the night created by medical treatments, demonstrate that varying

reasons for the exigency, were a direct result of the McNeely case and its progeny

that would prevent the use of the unconstitutional blood draw (seizure) conducted

upon Appellant.       To hold that the Fourth Amendment is applicable to the drug

and alcohol testing prescribed by the repeat offender provision of the mandatory

blood draw law "is only to begin the inquiry into the standards governing such

intrusions." State v. Villareal, 13-13-253CR (Tex.App.BCorpus Christi -Edinburg

2014)(affirmed by State v. Villareal, PD 0306-14 (Tex.Crim.App. Dec 2014). (citing

Skinner, 489 U.S. at 618-19). "For the Fourth Amendment does not proscribe all

searches and seizures, but only those that are unreasonable." Id.          "What is

reasonable, of course, 'depends on all of the circumstances surrounding the search

                                          23
or seizure and the nature of the search or seizure itself.'" Id. (citing United States v.

Montoya de Hernandez, 473 U.S. 531, 537 (1985)). "Thus, the permissibility of a

particular practice 'is judged by balancing its intrusion on the individual's Fourth

Amendment interests against its promotion of legitimate governmental interests."

State v. Villareal, 13-13-253CR (Tex.App.BCorpus Christi -Edinburg 2014)(affirmed

by State v. Villareal, PD 0306-14 (Tex.Crim.App. Dec 2014). (quoting Delaware v.

Prouse, 440 U.S. 648, 654(1979)).

      "In most criminal cases, we strike this balance in favor of the procedures

described by the Warrant Clause of the Fourth Amendment." Id. "Except in certain

well-defined circumstances, a search or seizure in such a case is not reasonable

unless it is accomplished pursuant to a judicial warrant issued upon probable

cause." Id. The United States Supreme Court has "recognized exceptions to this

rule, however, “when 'special needs’, beyond the normal need for law enforcement,

make the warrant and probable-cause requirement impracticable.'" Id. (quoting

Griffin v. Wisconsin, 483 U.S. 868, 873 (1987)). "When faced with such special needs,

. . . [the Court has] not hesitated to balance the governmental and privacy interests

to assess the practicality of the warrant and probable-cause requirements in the

particular context." Id. The government's interest in regulating the operation of

motor vehicles on public roadways to ensure safety, like its interest in the

supervision of railroad employees, probationers, regulated industries, and its

operation of a government office, school, or prison, "likewise presents 'special

                                           24
needs' beyond normal law enforcement that may justify departures from the usual

warrant and probable-cause requirements." State v. Villareal, 13-13-253CR

(Tex.App.BCorpus Christi -Edinburg 2014)(affirmed by State v. Villareal, PD 0306-

14 (Tex.Crim.App. Dec 2014). (citations omitted).

      Another of the established exceptions to the requirements of both a warrant

and probable cause is when valid consent to conduct the search has been granted.

State v. Villareal, 13-13-253CR (Tex.App.BCorpus Christi -Edinburg 2014)(affirmed

by State v. Villareal, PD 0306-14 (Tex.Crim.App. Dec 2014)(citing Schneckloth v.

Bustamonte, 412 U.S. 218 (1973).       The Texas Court of Criminal Appeals has

recognized that "[t]he implied consent law ... is another method of conducting a

constitutionally valid search." State v. Villareal, 13-13-253CR (Tex.App.BCorpus

Christi -Edinburg 2014)(affirmed by State v. Villareal, PD 0306-14 (Tex.Crim.App.

Dec 2014))(citing Beeman, 86 S.W.3d at 615.) "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." Referring to the mandatory blood draw

statute the Texas Court of Criminal Appeals declared, "It gives officers an

additional weapon in their investigative arsenal, enabling them to draw blood in

certain limited circumstances even without a search warrant." Beeman, 86 S.W.3d

613, 615 (Tex.Crim.AppB2002)(citations omitted). In relevant part, the implied

consent statute provides as follows: If a person is arrested for an offense arising out

of acts alleged to have been committed while the person was operating a motor

                                          25
vehicle in a public place, or a watercraft, while intoxicated, or an offense under

Section 106.041, Alcoholic Beverage Code, the person is deemed to have consented,

subject to this chapter, to submit to the taking of one or more specimens of the

person's breath or blood for analysis to determine the alcohol concentration or the

presence in the person's body of a controlled substance, drug, dangerous drug, or

other substance. Tex. Transp. Code Ann. ' 724.011(a) (West 2011). As the Texas

Court of Criminal Appeals has explained, "[t]he implied consent law does just

thatCit implies a suspect's consent to a search in certain instances." Beeman, 86

S.W.3d at 615.    It is also clear from the evidence presented in this case that

Appellant clearly and definitively withdrew that consent.

       The statute provides for implied consent in every circumstance in which a

suspect is arrested for DWI. See Tex. Transp. Code Ann. ' 724.011(a). This statute

“does not give officers the ability to forcibly obtain blood samples from anyone

arrested for DWI." Beeman, 86 S.W.3d at 616. The statute expresses that "[e]xcept

as provided by Section 724.012(b), a specimen may not be taken if a person refuses

to submit to the taking of a specimen designated by a peace officer." Tex. Transp.

Code Ann. ' 724.013 (West 2011). The relevant language in Section 724.012(b)

authorizes and, in fact, requires an officer to take a breath or blood sample if a

person is arrested for DWI, has two or more prior convictions, and refuses to

voluntarily consent to the officer's request to take a breath or blood sample. State v.

Villareal, 13-13-253CR (Tex.App.BCorpus Christi -Edinburg 2014)(affirmed by

                                          26
State v. Villareal, PD 0306-14 (Tex.Crim.App. Dec 2014). That statute has now been

declared unconstitutional by the Texas Court of Criminal Appeals in State v.

Villareal, PD 0306-14 (Tex.Crim.App. Dec 2014).

      After stipulating that there was no consent, the State can no longer argue that

Chapter 724 creates a legislatively valid consent or essentially a statutory waiver of

the Fourth Amendment. See State v. Villareal, PD 0306-14 (Tex.Crim.App. Dec

2014). The State cannot claim that this legislatively created consent cannot be

withdrawn or withheld by certain individual suspects, such as this defendant, who

have two or more prior convictions for DWI or persons who have been involved in

an accident in which another person has chosen to seek medical treatment. Id. To

accept this premise would be to deem that the Legislature has the ultimate control

over an individual's ability to consent to a warrantless blood draw, in direct

contradiction to Aviles, and it has made a decision categorically and conclusively on

behalf of all those individuals who have two or more prior convictions for DWI or

involved in an accident in which a person chooses to seek medical treatment such

that those individuals have no right to refuse to consent which has been prohibited

by the Court of Criminal Appeals ruling in Villareal. State v. Villareal, PD 0306-14

(Tex.Crim.App. Dec 2014).

      Defendant acknowledges that the McNeely Court and the Villareal lower

court demonstrated concern that the drunk driving problem is a national epidemic,

and the legal tools in the police's crime-fighting arsenal must keep pace with the

                                          27
danger posed to the public. State v. Villareal, 13-13-253CR (Tex.App.BCorpus

Christi -Edinburg 2014)(affirmed by State v. Villareal, PD 0306-14 (Tex.Crim.App.

Dec 2014)). Defendant realizes that the repeat offender provision of the mandatory

blood draw would allow police to obtain scientific evidence that could be of

tremendous value to law enforcement and to the State in establishing the guilt of an

accused. Regardless of the benefit that the statute provides, Defendant relies upon

the language of the United State Supreme Court when it said, "But the general

importance of the government's interest in this area does not justify departing from

the warrant requirement without showing exigent circumstances that make securing

a warrant impractical in a particular case."        State v. Villareal, 13-13-253CR

(Tex.App.BCorpus Christi -Edinburg 2014)(affirmed by State v. Villareal, PD 0306-

14 (Tex.Crim.App. Dec 2014))(citing McNeely, 133 S.Ct. at 1565). The Texas Court

of Criminal Appeals in Villareal held that the mandatory draw was unconstitutional

in the absence of another recognized exception to the warrant requirement. State v.

Villareal, PD 0306-14 (Tex.Crim.App. Dec 2014).

      In sum, Defendant accepts arguendo for the purpose of the motion to

suppress that, in this case, there were the some of the usual signs that are generally

associated with intoxication, such as smelling strongly of intoxicants and a rollover

automobile accident, from which a reasonable officer could have inferred probable

cause to believe that intoxication may be present and the offense of DWI may have

been committed.     There was some likelihood based on the above assumptions,

                                          28
accepted arguendo, that probable cause was arguably present and that the officer

could have gotten a warrant for the blood draw, but there were no exigent

circumstances supported by Bures inconsistent testimony that would have

prevented him from getting a warrant.              State v. Villareal, 13-13-253CR

(Tex.App.BCorpus Christi -Edinburg 2014)(citing McNeely, 133 S.Ct. at 1565. AIn

those drunk-driving investigations where police officers can reasonably obtain a

warrant before a blood sample can be drawn without significantly undermining the

efficacy of the search, the Fourth Amendment mandates that they do so." Id.

Additionally in State v. Baker, the 6th Court of Appeals stated the following,

A[w]ithout any other evidence of exigent circumstances, such as evidence that it

would take too long to procure a warrant under these circumstances, the trial court

could have reasonably concluded that the State failed to show that the warrantless

blood draw was supported by exigent circumstances. State v. Baker, 12-12-00092-

CR, 2013 WL 5657649 (Tex. App. B Tyler Oct. 16, 2013, pet. granted)(citing

McNeely, 133 S.Ct. at 1565)(emphasis added). The fact that Bures indicated that he

believed it would take twenty to thirty minutes to obtain a warrant and he made no

effort to obtain a warrant but procured a sample under the authority of the

mandatory blood draw statute in only forty minutes from the time of his arrival on

the scene of the accident does not support a claim of exigent circumstance. See

Reporter’s Record, Vol 7. pp. 81, 84.

            The officer's sole basis, as contained within the report, for not getting a

                                          29
warrant was that the repeat offender provision or the person of another being

transported for medical treatment provision of the mandatory blood draw law

required him to take a blood sample in the absence of defendant=s consent and

without the necessity of obtaining a search warrant. See Tex. Transp. Code Ann. '

724.012(b). The Salazar Court stated, “In the instant case, the State relied solely on

Section 724 and offered no evidence of any other recognized exception to the Fourth

Amendment that would have permitted it to have Appellant's blood drawn without

a warrant. Accordingly, we hold that the trial court abused its discretion in denying

Appellant's motion to suppress.”     Salazar v. State, 12-13-00192 (Tex.App-Tyler

August 29, 2014 unpublished cited for persuasive purposes only). The same result

must occur under the facts of this case wherein the testimony of the officer clearly

indicated that he was only moments behind Appellant leaving the scene, had time to

visit his car and conduct a criminal history check and the order the medical

personnel to obtain a mandatory blood draw, but later at the suppression hearing

and trial, Trooper Bures claimed exigent circumstances, albeit, different ones

during live testimony.    It is unfathomable that the officer did not include the

exigencies in his report, but was able to dredge them up from his memory after the

constitutionality of the mandatory blood draw teetered on the precipice and since

then has been conclusively determined to be unconstitutional by the Texas Court of

Criminal Appeals. State v. Villareal, PD 0306-14 (Tex.Crim.App. Dec 2014).

      Even though it appears that the statute required the officer to obtain a breath

                                          30
or blood sample, it did not require the officer to do so without first obtaining a

warrant. State v. Villareal, 13-13-253CR (Tex.App.BCorpus Christi -Edinburg

2014)(affirmed by State v. Villareal, PD 0306-14 (Tex.Crim.App. Dec 2014).

Actually, the statute does not address or purport to dispense with the Fourth

Amendment's warrant requirement for blood draws.         State v. Villareal, 13-13-

253CR (Tex.App.BCorpus Christi -Edinburg 2014) )(affirmed by State v. Villareal,

PD 0306-14 (Tex.Crim.App. Dec 2014).         Furthermore, Appellant would argue

under McNeely and Villareal that there was no valid "consent" under the Fourth

AmendmentCwhether by the mandatory blood draw law or the implied consent

lawC and a mandatory blood draw is barred because "[t]here was no consent, no

warrant." State v. Villareal, PD 0306-14 (Tex.Crim.App. Dec 2014).

      To date, neither the United States Supreme Court nor the Texas Court of

Criminal Appeals has recognized the repeat offender or transportation of an

involved party to the hospital provision of the mandatory blood draw law,

referenced, as a new exception to the Fourth Amendment's warrant requirement

separate and apart from the consent exception and the exception for exigent

circumstances. In Beeman, the Texas Court of Criminal Appeals recognized that

these laws do not give police officers anything "more than [what] the Constitution

already gives them." Beeman, 86 S.W.3d 613(Tex.Crim.App.B2002). Accordingly,

this court must conclude that the constitutionality of the repeat offender or

transportation of another for treatment provision of the mandatory blood draw law

                                        31
must be conducted in conformance with the previously recognized exceptions to the

Fourth Amendment's warrant requirement.

      Here, based on the reports completed by law enforcement officers and

supplied to the defendant by the State as well as testimony elicited at trial, "there

was no consent." Further, there was nothing stopping the officer from obtaining a

warrant other than his unwillingness to even expend the effort. The officer did not

investigate whether any medications had been given to or were anticipated to be

given to Appellant that would skew or adversely effect a blood draw that could be

obtained from Appellant by a search and seizure warrant issued by a neutral

magistrate that could have been secured by the equipment available to the trooper

at the hospital    There were no exigent circumstances present that would pass

constitutional muster in the absence of any effort by the trooper to timely obtain a

warrant.   . The reports created by the officers and the hospital indicate that

Appellant was involved in an accident that occurred at approximately 7:30 o’clock

in the evening. Medical reports indicated that Appellant was transported by EMS to

the hospital. The testimony indicates that the trooper followed relatively soon after

Appellant was transported by EMS and that law enforcement arrived at the hospital

shortly thereafter,. and after waiting a while for medical personnel to continue the

medical evaluation and treatment of Appellant, the trooper took the time to return

to his vehicle and conducted the criminal history search to satisfy the requirements

of Texas Transportation Code §724 that provided for the mandatory blood draw.

                                         32
This would indicate that no effort to obtain a warrant was made, but further, that

the time elapsed from the trooper’s presence in the emergency room at the hospital

until he was able to establish the criminal history of Appellant was ample time to at

least try and secure a warrant.      If the trooper candidly believed that exigent

circumstances existed, he would have been justified in acting without the effort of

satisfying §724 of the Texas Transportation Code and would have proceeded to

secure the sample based solely on the existence of exigent circumstances. Appellant

believes there are key distinctions between this case and other cases involving

warrantless blood draws based on exigent circumstances. Given the absence of a

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

court must agree with the Court=s decision in Villareal that the State failed to

demonstrate that the involuntary blood draw was reasonable under the Fourth

Amendment or that an exception to the Fourth Amendment's warrant requirement

is applicable to this case, as was its burden. See U.S. Const, amend. IV; State v.

Villareal, 13-13-253CR (Tex.App.BCorpus Christi -Edinburg 2014)(affirmed by

State v. Villareal, PD 0306-14 (Tex.Crim.App. Dec 2014)); State v. Villareal, PD 0306-

14 (Tex.Crim.App. Dec 2014)

      Based on the testimony about reports completed by law enforcement officers

and supplied to the Appellant by the State, there was no consent.            Nothing

prevented Trooper Bures from obtaining a warrant. There were no verified exigent.

The reports created indicate that Appellant was involved in a motor vehicle




                                          33
accident. The reports further demonstrate that the officers were not rushed or

involved in hectic activity at the location discounting any claim or indication of

exigent circumstances and Appellant was closely followed to the hospital by law

enforcement with only minimal delay. No effort to obtain a warrant was made and

no reasonable claim of the presence of exigent circumstances can be validated,

especially since the testimony verifies that the amount of time that passed between

Bures arrival on the scene of the accident and the time of the “mandatory” blood

draw was only forty minutes. Given the absence of a warrant, the absence of

exigent circumstances, and the absence of consent, this Court must agree with the

Courts’ decisions in Villareal, Sutherland, and Weems that the State failed to

demonstrate that the involuntary blood draw was reasonable under the Fourth

Amendment or that an exception to the Fourth Amendment's warrant requirement

is applicable to this case, as was its burden. See U.S. Const, amend. IV; State v.

Villareal, 13-13-253CR (Tex.App.BCorpus Christi -Edinburg 2014)(affirmed by

State v. Villareal, PD 0306-14 (Tex.Crim.App. Dec 2014); Sutherland v. State, 07-12-

00289-CR (Tex.App.—Amarillo, April 7, 2014); Weems v. State, 434 S.W.3d 04-13-

00366-CR (Tex.App.—San Antonio, (May 14, 2014); Salazar v. State, 12-13-00192

(Tex.App-Tyler August 29, 2014)(unpublished cited for persuasive purposes only);

Douds v. State, 14-12-00642-CR (Tex. App. Houston [14th Dist] June 5, 2014).

      Recently, the Seventh Court of Appeals rendered a decision opining that the

implied consent provision of the statutes providing for mandatory blood draws and




                                         34
implied consent law is unconstitutional and the Texas Court of Criminal Appeals

likewise held it to be unconstitutional in Villarreal. Sutherland v. State, 07-12-00289-

CR (Tex.App.—Amarillo, April 7, 2014); State v. Villareal, PD 0306-14

(Tex.Crim.App. Dec 2014). Additionally on May 14, 2014, the Fourth Court of

Appeals in San Antonio issued an opinion in the matter of Weems v. State, 434

S.W.3d 655 (Tex.App.--San Antonio 2014). The opinion in Weems also opined that

the implied consent search conducted on the defendant was not constitutionally

permissible based on McNeely, Aviles, and Sutherland. Weems v. State, 434 S.W.3d

655 (Tex.App.--San Antonio 2014); citing Missouri v. McNeely, 133 S.Ct. 1552

(2013);   Aviles v. State, 385 S.W.3d 110, 116 (Tex. App.— San Antonio 2012),

vacated, 134 S.Ct. 902 (2014), Sutherland v. State, 07-12-00289-CR (Tex.App.—

Amarillo, April 7, 2014). It must be noted that the Weems matter involved a fairly

serious accident that resulted in a person other than the accused being transported

to the hospital. Weems v. State, 434 S.W.3d 655 (Tex.App.--San Antonio 2014). The

Weems court did not rely on the accident as the sole determinative factor in the

viability of the search in its constitutional review of the conduct of law enforcement.

      Weems also discusses a good faith claim by the State as a basis to allow for the

admission of the evidence under the good faith claim. The Weems court dismissed

the state’s argument stating:

                  Finally, the State argues that the evidence should not
             be excluded pursuant to the federal exclusionary rule or
             pursuant to article 38.23 of the Texas Code of Criminal
             Procedure because the arresting officer relied on the



                                           35
            implied consent statute and mandatory blood draw statute
            in good faith. Under the federal exclusionary rule, if a law
            enforcement officer relies in good faith on a statute
            authorizing his warrantless search and the statute is later
            determined to be unconstitutional, the exclusionary rule
            does not apply. Illinois v. Krull, 480 U.S. 340, 342, 355
            (1987). However, constraints do apply to the exception to
            the exclusionary rule. "A statute cannot support
            objectively reasonable reliance if, in passing the statute,
            the legislature wholly abandoned its responsibility to
            enact constitutional laws." Id. at 355. "Nor can a law
            enforcement officer be said to have acted in good-faith
            reliance upon a statute if its provisions are such that a
            reasonable officer should have known that the statute was
            unconstitutional." Id.
                  First, we note that the implied consent and
            mandatory blood draw statutes do not explicitly provide
            for a warrantless search. See Villarreal, 2014 WL 1257150,
            at * 11 (explaining that the mandatory blood draw statute
            "does not address or purport to dispense with the Fourth
            Amendment's warrant requirement for blood draws").
            Second, we note that there is no such good faith exception
            found in Texas's exclusionary rule; and Texas can provide
            more protection to a suspect than federal law. Article
            38.23 provides for an exception to the exclusionary rule
            only when an officer relies in good faith upon a warrant
            issued by a neutral magistrate based on probable cause.
            See Tex. Code Crim. Proc. Ann. art. 38.23(b) (West 2005).
            It says nothing about an officer's reliance in good faith on
            a statute. Therefore, we hold that the exclusionary rule
            applies in this case.

Weems v. State, 434 S.W.3d 655 (Tex.App.--San Antonio 2014).

      This Court, while not bound by the opinion of the Fourth District Court of

Appeals’ precedent, should apply the wisdom of the good faith analysis.       The

evidence obtained as a result of the officer conducting the “mandatory blood draw”

must be excluded by the application of the well reasoned rationale of the Weems




                                         36
court.     The Texas Court of Criminal Appeals also prohibits the use of the

mandatory blood draw in the rendition of the opinion in Villareal that followed

Aviles being vacated by the United States Supreme Court.

         Finally the attempt by law enforcement to create exigent circumstances after

realizing that the constitutionality of the mandatory draw statute was doomed to fail

is analogous to the rational set forth by the United States Supreme Court in Florida

v. Wells addressing another attempt by law enforcement to claim a recognized

exception to the warrant requirement despite the clear intent of the officer

conducting the search.      In Florida v. Wells, the Court stated, “an inventory is

constitutionally permissible as long as it is not a ‘ruse” for general rummaging in

order to discover incriminating evidence." Florida v. Wells, 495 U.S.1, 4, 110S.Ct.

1632, 109 L.Ed 1 (1990). This is analogous to the case at bar because the

Court recognized that while an exception may be declared, the evidence must

support the claimed exception and the prohibited conduct is not excused by

merely claiming that an exception exists. The testimony in this case is clear

that Trooper Bures, on the night in question, directed the nurse to obtain the

sample pursuant to the mandatory blood draw provision and he only later

made the claim that exigent circumstances existed. This is clearly the type of

claim the Supreme Court was concerned with in Florida v. Wells. The Court’s

holding was that law enforcement must not be allowed to claim an exception




                                           37
as a ruse to validate conduct which has been determined to be

unconstitutional. This Court must heed the rational of the United States

Supreme Court and find that the trial court’s failure to suppress the evidence

resulting from the law enforcement reliance of the mandatory blood draw

statute is error and law enforcement’s further attempt to claim exigent

circumstances is a ruse intended to validate impermissible conduct and an

illegal/unconstitutional search and seizure.

      Additionally, presentation of an exigent circumstances reason by the

officer at the time of the suppression hearing is analogous to the concerns of

set forth in the opinion in Miller El as it addressed reasons given in a Batson

challenge case. In Miller El II, the court stated, ”A Batson challenge does not

call for a mere exercise in thinking up any rational basis. If the stated reason

does not hold up, its pretextual significance does not fade because a trial

judge, or an appeals court, can imagine a reason that might not have been

shown up as false.” Miller El V. Dretke, 545 U.S. 231, 252 (2005). This

concern by the United States Supreme Court is analogous to the case at bar

because it is clear that the trooper specifically relied upon §724 of the Texas

Transportation Code because of his efforts in supporting the requirements of

the mandatory blood draw language and participating in activities that

delayed the process of securing a blood warrant. Bures’ delay in staying at



                                       38
the scene to conduct an inventory, his attempt to converse with Appellant

during the diagnosis and pending treatment phase of Appellant hospital visit,

his trip to his patrol cruiser to secure a criminal history and then his lack of

attempt to secure a warrant in a location that has been specifically equipped

to contact a neutral magistrate which he has knowledge is available 24/7 is

demonstrative of his reliance solely on the existence of the statutory criteria

for a mandatory blood draw.          The post-McNeely relation of exigent

circumstances is the functional equivalent of the mere exercise in thinking up

a rational basis or the mere exercise in creating an exigent circumstance. This

Court must consider all of the actions taking by Trooper Bures on the night of

the accident and compare them to the testimony at the suppression hearing

and trial. This Court must then agree with Appellant that the creation of the

exigent circumstances rationale to overcome the adverse consequences of

negative rulings on the legality and potential constitutionality of the

mandatory blood draw statutes. This Court must hold that the mere creation

of the exigent circumstances rational is merely a ruse to excuse what the Texas

Court of Criminal Appeals has determined to be unconstitutional conduct and

designed to circumvent the inevitable exclusion of the blood evidence.

POINT OF ERROR NUMBER THREE: THE TRIAL COURT
UNCONSTITUTIONALLY HARMED APPELLANT WHEN IT REFUSED
TO SUPPRESS THE RESULTS OF APPELLANT’S BLOOD ALCOHOL



                                       39
CONTENT THAT WAS ONLY AVAILABLE AS A RESULT OF A BLOOD
DRAW TAKEN FOR MEDICAL PURPOSES AND PRODUCED INTO
EVIDENCE BY A SHAM GRAND JURY SUBPOENA ISSUED
SUBSEQUENT TO INDICTMENT.


      Trial counsel objected to the use of the medically obtained blood sample being

procured by a grand jury subpoena in proving up the prosecution’s case. Appellant

believes that should this Court hold that the trial court erred in allowing the use of

the law enforcement blood sample as evidence, Appellant would find herself in the

sticky predicament that this Court would find the error to be harmless based on the

ruling of this Court in State v. Huse, 07-12-00383-CR (Tex.App.—Amarillo

2014)(not published, cited for persuasive purposes only.) In the Huse case, this

Court addressed the issue of standing and illegality of procuring the medical records

in the means used by the prosecution. This Court ruled against issues very similar

to those raised by Appellant’s counsel in this case. This Court cited State v. Hardy,

963 S.W.2d 516 ( Tex.Crim.App. 1997), Murray v. State, 245 S.W.3d 37 (Tex.App—

Austin 2007)(pet filed), Tapp v. State, 108 S.W.2d 459 (Tex.App Houston—2003 pet.

ref’d ) as the basis for denying standing in the claim of illegality of procuring the

blood alcohol results from medical procedure performed in the treatment of a

patient presenting with a medical emergency. This Court also cited Kennemur for

the same reason. Kennemur v. State, 280 S.W.3d 305 (Tex.App.Amarillo 2008,

pet.ref’d), cert denied, 556 U.S. 1191, 129 S.Ct. 2005, 173L.Ed.2d 1101 (2009).

Appellant disagrees with the premise that she has no standing to preserve the



                                          40
privacy of her medical records. Appellant also understands that this court

will maintain the holding made in the above referenced case. Appellant also

understands that such holdings were based on precedent, and this Court is

bound to the precedent relied upon to make the rulings in Huse; however,

Appellant raised the issue to preserve for future appellate review the issue of

standing, and the claim of illegal procurement of the records by a sham grand

jury subpoena. This Court was careful to include that the original grand jury

subpoena issued in the absence of the Grand Jury meeting in Huse was

challenged by the defendant. The prosecution dismissed the case, and then

had a properly obtained grand jury subpoena issued during the pendency of a

filing outcome.   Appellant proceeds on the basis that this Court had some

basis for including such information and informs this Court that the

prosecution in the instant matter did not attempt to cure any error by

dismissing the case and properly procuring a grand jury subpoena during the

pendency of a grand jury “investigation.” Any investigation done on the case

at bar was completed pre-indictment prior to the presentation of this case

before the grand jury.     A podt-indictment subpoena was done for the

purposes of an end-run around the inevitable fate of the mandatory blood

draw statute and its unconstitutionality.    Appellant implores this court to

suppress the blood obtained by the prosecution by means of a sham grand



                                      41
jury subpoena obtained under the guise of a grand jury investigation as

improper and unconstitutional. While Appellant understand that this Court

is unlikely to reverse its course on similar facts in this case, Appellant must

present the issue on Appeal for any possible success before this court or any

other court empowered by law to address the issue presented.



                                PRAYER FOR RELIEF

       For the foregoing reasons, Appellant respectfully requests that this Court

suppress the results of the mandatory blood draw obtained in reliance on Section

724.012(b) of the Texas Transportation Code. This section of the transportation

code is constitutionally invalid on its face based on its disregard for the protections

granted by the Fourth Amendment to United States Constitution, and Article1

Sections 9 and 10 of the Texas Constitution. Additionally, this Court must find

based on the testimony that no exigent circumstances existed that would allow for

the collection of the blood. Finally this court should reconsider the holdings relating

to the privacy expectations granted by HIPPA and hold that the blood alcohol

content obtained in violation of that expectation should have been suppressed. This

Court must reverse the conviction of Appellant and remand it to the trial court for

proceedings consistent with the relief granted by this Court.



                                                     Respectfully submitted,
                                                     Kelly Clark



                                             42
                                                    Attorney-at-law
                                                    1401 Crickets
                                                    Lubbock, TX 79401
                                                    806 765-9977
                                                    Email:
                                                    kcdiscoverylbb@sbcglobal.net
                                                    Attorney for the Appellant,
                                                    Rex Ann Baker




                                                    By /S/ Kelly Clark
                                                    KELLY CLARK
                                                    Texas State Bar No. 00790467




                            CERTIFICATE OF SERVICE


      This is to certify that a true and correct copy of the above and foregoing Brief For
the Appellant has been mailed to the Jeffrey Ford, Lubbock County Assistant District
Attorney, PO Box 10536, Lubbock, Texas, 79408, attorney on appeal for the State of
Texas on this the 20th day of January, 2015.




                                                /S/ Kelly Clark
                                                Kelly Clark




                                                                       43
                         CERTIFICATE OF WORD COUNT
       This is to certify that a true and correct count of words contained within
Appellant’s brief as counted by the word processing program used to generate the
document is twelve thousand six hundred fifty (12,650). The count of words was
undertaken on this document on its date of filing this the 20th day of January, 2015.




                                                  /S/ Kelly Clark
                                                  Kelly Clark




                                             44
