                                                                             PD-0412-15
                        PD-0412-15                          COURT OF CRIMINAL APPEALS
                                                                            AUSTIN, TEXAS
                                                            Transmitted 5/8/2015 2:35:21 PM
                                                             Accepted 5/12/2015 1:17:04 PM
                                                                             ABEL ACOSTA
                            IN THE COURT                                             CLERK
                    OF CRIMINAL APPEALS OF TEXAS

JOSHUA ED BOWYER,                 §
    APPELLANT                     §
                                  §
V.                                §     NO. PD-0412-15
                                  §
THE STATE OF TEXAS,               §
    APPELLEE                      §


                               § § §

         STATE'S PETITION FOR DISCRETIONARY REVIEW

                               § § §

                               SHAREN WILSON
                               Criminal District Attorney
                               Tarrant County, Texas

                               DEBRA WINDSOR, Assistant
                               Criminal District Attorney
     May 12, 2015              Chief, Post-Conviction

                               TANYA S. DOHONEY
                               Assistant Criminal District Attorney
                               Tim Curry Criminal Justice Center
                               401 W. Belknap
                               Fort Worth, Texas 76196-0201
                               (817) 884-1687 FAX (817) 884-1672
                               State Bar No. 02760900
                               ccaappellatealerts@tarrantcountytx.gov

                               LISA C. MCMINN,
                               State Prosecuting Attorney


               ORAL ARGUMENT IS NOT REQUESTED
                  IDENTITY OF THE JUDGE, PARTIES,
                           AND COUNSEL

     The Hon. Sharen Wilson, Tarrant County Criminal District Attorney,

represents the State of Texas in this appeal. Additionally, representing the

State on appeal is the Hon. Tanya S. Dohoney, Assistant Criminal District

Attorney and Hon. Debra Windsor, Post-Conviction Chief. At trial, the Hon.

Kelly Loftus and Hon. Tanya Dohoney represented the prosecution. The

State’s attorneys’ address is Office of the Criminal District Attorney of

Tarrant County, Tim Curry Criminal Justice Center, 401 W. Belknap, Fort

Worth, Texas 76196-0201.

     The Hon. Lisa C. McMinn is the State’s Prosecuting Attorney. Mail

for the Office of the State Prosecuting Attorney, located in the Price Daniel

Sr. Building, may be sent to P.O. Box 13046, Austin, Texas, 78711.

     Appellant, Defendant below, is Joshua Ed Bowyer. Hon. Mark G.

Daniel and Hon. Richard A. Henderson represented Appellant at the trial

court and now on appeal. Mr. Henderson offices at 100 Throckmorton

Street, Suite 540, Fort Worth, Texas 76102, while Mr. Daniel’s address is

115 West Second Street, Suite 202, Fort Worth, Texas 76102.

     The State tried Appellant’s case in the 371st Judicial District Court of

Tarrant County, Texas, also located in the Tim Curry Criminal Justice

Center. The Hon. Mollee Westfall presided over the case.
                                     ii
                                       SUBJECT INDEX

IDENTITY OF THE JUDGE, PARTIES, AND COUNSEL ............................ ii

SUBJECT INDEX ....................................................................................... ii

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

STATEMENT REGARDING ORAL ARGUMENT ........................................ 1

STATEMENT OF THE CASE ..................................................................... 2

STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE ............. 2

STATEMENT OF FACTS ........................................................................... 3

QUESTIONS PRESENTED FOR REVIEW................................................. 4

FIRST QUESTION FOR REVIEW
    Does a warrantless, nonconsensual blood draw
    conducted pursuant to TEX. TRANSP. CODE §
    724.012(b) violate the Fourth Amendment? (1SCR
    at 7–31)

SECOND QUESTION FOR REVIEW
    Are    Fourth    Amendment     warrant-preference
    exceptions the sole measure of Fourth Amendment
    reasonableness in warrantless scenarios? (1SCR
    at 7–31)

THIRD QUESTION FOR REVIEW
    Do    exclusionary  rule  principles    mandate
    suppression of blood evidence seized via a
    warrantless,   nonconsensual,   valid-at-the-time
    mandatory blood draw? (1SCR at 7–31)

ARGUMENT AND AUTHORITIES .............................................................. 5

I.      Valid, compelled statutory blood draw ............................................... 7

                                                   iii
        A.      Codification of Fourth Amendment principles............................ 8


        B.      Special-needs framework adds to the
                reasonableness calculation..................................................... 10

        C.      Erroneous consideration of the “Less Intrusive Means” test.... 11

II.     Implied-consent draws are reasonable ............................................ 12

III.    Exclusionary rule inapplicable and not invoked ................................ 14

CONCLUSION AND PRAYER ................................................................ 177

CERTIFICATE OF COMPLIANCE .......................................................... 188

CERTIFICATE OF SERVICE .................................................................. 188

APPENDIX ................................................................................................ A




                                                    iv
                                 INDEX OF AUTHORITIES

Cases

Bowyer v. State,
No. 02-13-00315-CR, 2015 WL 1120332
(Tex. App.—Fort Worth Mar. 12, 2015)
(mem. op., not designated for publication) ............................................... 2,4

Breithaupt v. Abram,
352 U.S. 432 (1957) ................................................................................. 13

Cole v. State,
454 S.W.3d 89 (Tex. App.—Texarkana 2014, pet. granted)........................ 6

Davis v. United States,
___ U.S. ___, 131 S. Ct. 2419 (2011) ................................................. 14, 15

Douds v. State,
434 S.W.3d 842
(Tex. App.—Houston [14th Dist.] June 5, 2014, pet. granted) ................. 5, 6

Heien v. North Carolina,
135 S. Ct. 530 (2014).......................................................................... 15, 16

Holidy v. State,
No. 06-13-00261-CR, 2014 WL 1722171
(Tex. App.—Texarkana Apr. 30, 2014, pet. granted)
(mem. op., not designated for publication) .................................................. 6

Hulit v. State,
982 S.W.2d 431 (Tex. Crim. App. 1998) ............................................. 12, 13

Illinois v. Krull,
480 U.S. 342 (1987) ................................................................................. 14

Maryland v. King,
569 U.S. ___, 133 S. Ct. 1958 (2013) ....................................................... 13


                                                   v
McGee v. State,
105 S.W.3d 609 (Tex. Crim. App. 2003) ................................................... 13

McGruder v. State,
No. 10-13-00109-CR, ___ S.W.3d ___, 2014 WL 3973089 ........................ 6

Michigan Dept. of State Police v. Sitz,
496 U.S. 444 (1990) ................................................................................. 13

Michigan v. DeFillippo,
443 U.S. 31 (1979) ................................................................................... 16

Miles v. State,
241 S.W.3d 28 (Tex. Crim. App. 2007) ....................................................... 8

Missouri v. McNeely,
569 U.S. ___, 133 S. Ct. 1552 (2013) ................................................passim

Reeder v. State,
428 S.W.3d 930 (Tex. App.—Texarkana 2014, pet. granted)...................... 5

Segundo v. State,
270 S.W.3d 79 (Tex. Crim. App. 2008),
cert. denied, 558 U.S. 828 (2009) ............................................................. 13

Skinner v. Railway Labor Executives' Ass'n,
489 U.S. 602 (1989) ..................................................................... 10, 12, 13

Smith v. State,
No. 13-11-00694-CR, ___ S.W.3d ___, 2014 WL 5901759
(Tex. App.—Corpus Christi 2014, pet. granted) .......................................... 6

State v. Villarreal,
PD-0306-14, ___ S.W.3d ___,
2014 WL 6734178 (Tex. Crim. App. 2014) .........................................passim

Tharp v. State,
935 S.W.2d 157 (Tex. Crim. App. 1996) ................................................... 10



                                                   vi
Vernonia School Dist. 47J v. Acton,
515 U.S. 646 (1995) ................................................................................. 11

Weems v. State,
434 S.W.3d 655 (Tex. App.—San Antonio 2014, pet. granted) .............. 5. 6

Welsh v. Wisconsin,
466 U.S. 740 (1984) ................................................................................... 9


Statutes, Rules, Constitutions

TEX. CODE CRIM. PROC. art. 14.04................................................................ 9

TEX. CODE CRIM. PROC. art. 18.16................................................................ 8

TEX. CODE CRIM. PROC. art. 38.23........................................................ 15, 16

TEX. PENAL CODE § 1.07 ............................................................................ 15

TEX. PENAL CODE § 49.045 ...................................................................... 2, 7

TEX. TRANSP. CODE § 524.012 ................................................................... 10

TEX. TRANSP. CODE § 724.012 ............................................................passim

TEX. R. APP. P. 9.4 .................................................................................... 18

TEX. R. APP. P. 66.3 .................................................................................... 7

U.S. CONST. amend. IV ......................................................................passim




                                                    vii
                          IN THE COURT
                  OF CRIMINAL APPEALS OF TEXAS

JOSHUA ED BOWYER,                    §
    APPELLANT                        §
                                     §
V.                                   §     NO. PD-0412-15
                                     §
THE STATE OF TEXAS,                  §
    APPELLEE                         §

          STATE’S PETITION FOR DISCRETIONARY REVIEW


TO THE HONORABLE JUDGES OF
THE COURT OF CRIMINAL APPEALS:

     Comes now the State of Texas, by and through her Tarrant County

Criminal District Attorney, and respectfully urges this Court to grant

discretionary review of this cause in accordance with the rules of appellate

procedure.

             STATEMENT REGARDING ORAL ARGUMENT

     Although the reasonableness of statutory mandatory blood draws

merits argument, this Court has already granted petitions on similar issues

and heard arguments from other parties regarding the issues discussed

herein. Therefore, the State does not request argument in this case.




                                     1
                             STATEMENT OF THE CASE

        Appellant premised a pretrial suppression claim on the Supreme

Court’s decision in Missouri v. McNeely, 569 U.S. ___, 133 S. Ct. 1552

(2013). (1CR at 16–19; 2RR; 3RR). The trial judge rejected the defense

argument attacking the validity of blood seized pursuant to the Texas

implied-consent statute.         (1SCR at 7–31; 3RR at 109).              Appellant pled

guilty to felony DWI with a child passenger younger than fifteen years of

age.      (1CR at 94–98, 101–03; 4RR at 5–7).                   The judge sentenced

Appellant to two years’ confinement, probated for five years, with fifteen

days in jail as a probation condition and a $1000 fine. (1CR at 59–69; 4RR

at 6–8). TEX. PENAL CODE § 49.045. 1



       STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE

        The Fort Worth Court of Appeals reversed the trial court’s

suppression ruling in an unpublished opinion authored by Justice Bill Meier.

Justice Lee Gabriel rounded out the panel; the third justice, Hon. Bob

McCoy, retired in the interim. Bowyer v. State, No. 02-13-00315-CR, 2015

WL 1120332, at *1 & n.2 (Tex. App.—Fort Worth Mar. 12, 2015).



1
    Statutory references cited throughout refer to the current version unless noted.
                                              2
Rehearing was not sought. The State timely files this petition, following

one extension.


                         STATEMENT OF FACTS

      Appellant pled guilty to driving while intoxicated with a child

passenger under the age of fifteen, a state jail felony. (1CR at 94–98, 101–

03; 4RR at 5–7). Appellant’s arrest arose after he attempted to park his

truck in the season ticket holder’s reserved parking lot at The Ballpark in

Arlington to attend a game. (RR2:11, 19–20). When parking, Appellant

collided with a Mercedes parked next to Appellant’s spot, sheering the

mirror off of the stationary vehicle.       (RR2:12–14, 19).   Appellant twice

denied hitting the parked car, lost his balance when surveying the vehicular

damage, and exhibited multiple intoxication symptoms in addition to his

impaired balance. (RR2:16; RR3:11–13, 16–18, 26–28, 31–33, 99–100).

Appellant’s sole passenger was his two-year-old son. (2RR at 15, 30; 3RR

at 11, 15).

      Upon arresting Appellant, Arlington officers took him to a local

hospital, not the police station, because Appellant consented to allow his

blood drawn. (2RR at 34–35, 37–38, 43, 73–74, 98–99). While the officer

completed the blood-draw paperwork at the hospital, Appellant changed his


                                        3
mind and thereafter refused to submit a sample; Appellant also refused to

sign the officer’s forms indicating his refusal. (2RR at 28–43; 5RR at SX1,

SX2). Therefore, while still at the hospital, the officer obtained a mandatory

blood draw since Appellant violated the DWI-with-a-child-passenger

statute, section 49.045 of the Texas Penal Code. See TEX. TRANSP. CODE

§724.012(b)(2). (RR2:35–36, 43; RR5:SX3).

     After his unsuccessful suppression hearing, Appellant pled guilty. He

appealed, relying on McNeely to complain of the trial court’s pretrial denial

of his motion to suppress. Missouri v. McNeely, 569 U.S. ___, 133 S. Ct.

1552 (2013); Bowyer, 2015 WL 1120332.


                QUESTIONS PRESENTED FOR REVIEW

                     FIRST QUESTION FOR REVIEW

           Does a warrantless, nonconsensual blood draw
         conducted pursuant to TEX. TRANSP. CODE § 724.012(b)
                   violate the Fourth Amendment?
                            (1SCR at 7–31)



                   SECOND QUESTION FOR REVIEW

        Are Fourth Amendment warrant-preference exceptions
       the sole measure of Fourth Amendment reasonableness
                     in warrantless scenarios?
                           (1SCR at 7–31)


                                      4
                      THIRD QUESTION FOR REVIEW

          Do exclusionary rule principles mandate suppression of
          blood evidence seized via a warrantless, nonconsensual,
                  valid-at-the-time mandatory blood draw?
                                 (1SCR at 7–31)



                      ARGUMENT AND AUTHORITIES

     This Court is in the midst of grappling with the issues presented

herein.    Whilst a November 2014 decision addressed the merits of the

Fourth Amendment issue in one of the several McNeely-related cases then

pending, what appeared decided is now in flux since the Court granted

rehearing in February. State v. Villarreal, PD-0306-14, ___ S.W.3d ___,

2014 WL 6734178 (Tex. Crim. App. 2014) (reh’g granted, re-submitted

Mar. 18, 2015).      Additionally, the appellate milieu includes six other

submitted McNeely-inspired cases, with yet another case granted and

waiting in the wings for submission. Douds v. State, 434 S.W.3d 842 (Tex.

App.—Houston [14th Dist.] June 5, 2014, pet. granted) (submitted on

arguments Mar. 13, 2015, PD-0857-14); Weems v. State, 434 S.W.3d 655

(Tex. App.—San Antonio 2014, pet. granted) (submitted on arguments

Nov. 19, 2014, PD-0635-14); Reeder v. State, 428 S.W.3d 930 (Tex.

App.—Texarkana 2014, pet. granted) (submitted on arguments Jan. 14,


                                     5
2015, PD-0601-14); Smith v. State, No. 13-11-00694-CR, ___ S.W.3d ___,

2014 WL 5901759 (Tex. App.—Corpus Christi 2014, pet. granted)

(submitted Apr. 29, 2015, PD-1615-CR); McGruder v. State, No. 10-13-

00109-CR, ___ S.W.3d ___, 2014 WL 3973089 (Tex. App.—Waco 2014,

pet. granted) (submitted Apr. 15, 2015, PD-1263-14); Holidy v. State, No.

06-13-00261-CR, 2014 WL 1722171 (Tex. App.—Texarkana Apr. 30, 2014,

pet. granted) (mem. op., not designated for publication) (submitted on

arguments Jan. 14, 2015, PD-0622-14); see also Cole v. State, 454 S.W.3d

89 (Tex. App.—Texarkana 2014, pet. granted Apr. 22, 2015) (briefing in

progress).

      The State’s instant petition focuses on two aspects of any McNeely-

related consequences: the validity of a statutorily-compelled draw and the

invalidity of the exclusionary rule’s application. Villarreal only resolved the

merits of the mandatory-draw issue, not addressing the applicability of the

exclusionary rule. Villarreal, 2014 WL 6734178. Nevertheless, that issue

is already before this Court. See Cole, 454 S.W.3d at 89 (fourth ground

granted); see also Weems, 434 S.W.3d at 666 (applying exclusionary rule);

Douds, 434 S.W.3d at 861–62 (same).          In other words, this Court has

already granted review on both issues presented herein.




                                      6
      Review should be granted in this case because it involves important

questions of law that are have not yet been finally addressed by this Court,

matters in conflict in the interim appellate courts, and a misapplication of a

Supreme Court decision that has been interpreted as undermining the

validity of the Texas implied-consent statute.            TEX. R. APP. P.

66.3(a)(b)(c)(d)(f).

I.    Valid, compelled statutory blood draw

      The State’s appellate stance is in lockstep with that of prosecutors

from other counties across the State who have already had cases granted

for review on a McNeely-related issue. Hence, the State respectfully asks

this Court to dispose of the instant case in a manner consistent with the

petitions in Villarreal, Douds, Weems, Reeder, Smith, McGruder, Holidy,

and Cole. Here, the officer reasonably relied on an existing, ubiquitous

narrowly-focused, reasonable statute to obtain a compelled blood draw.

The seizure occurred when the officer—at the time of the offense—

possessed probable cause that Appellant’s impaired and intoxicated

conduct constituted felony DWI with a child passenger. TEX. PENAL CODE §

49.045; TEX. TRANSP. CODE § 724.012(b)(2).




                                      7
     In addition, the State differs with Villarreal’s original-submission

decision and further asserts that several important arguments should be

considered on the merits.

     A.    Codification of Fourth Amendment principles

     Villarreal failed to consider that the implied-consent statute codified

Fourth Amendment principles.      For instance, this Court has previously

recognized a statutory codification of the exigency exception. See Miles v.

State, 241 S.W.3d 28, 39–40 n.54 (Tex. Crim. App. 2007) (citing TEX. CODE

CRIM. PROC. art. 18.16). McNeely recognized that every case involving the

dissipation of alcohol included some exigency. McNeely, 133 S. Ct. at

1561, 1568.     This ever-present exigency must be considered when

assaying the reasonableness of statutory draws.

     Combine the static alcohol-evaporation-exigency consideration with

the Legislature’s clear codification of the gravity-of-the-offense exigency.

The implied-consent statute extinguished a defendant’s right to refuse

where an officer possesses probable cause to believe that certain

enumerated, egregious circumstances exist.           TEX. TRANSP. CODE

§ 724.012(b).   Defendants only lose their refusal right under carefully

circumscribed scenarios involving felonious intoxication-related offenses




                                     8
and/or resultant injuries necessitating hospitalization. Id.       The statute only

applies to the most serious categories of DWI offenders.

      This statutory limitation amounts to a codification of an additional

recognized exigency unrelated to blood-alcohol dissipation.               Welsh v.

Wisconsin held that the Fourth Amendment authorizes common-sense

consideration of the underlying offense’s gravity when weighing the

existence of an exigency.      Welsh v. Wisconsin, 466 U.S. 740, 751–52

(1984) (exigency calculations include consideration of a crime’s severity).

Consideration of a crime’s gravity is the essence of reasonableness

because the State’s interest is greater in a more serious case. Cf. TEX.

CODE CRIM. PROC. art. 14.04 (authorizing warrantless arrests for felonies

where an officer did not observe the offense).

      Of course, it almost goes without saying that Texas’ implied-consent

legislation codified Fourth Amendment probable cause requirements. U.S.

CONST. amend. IV. Predicate elements of the implied consent statute

codify this well-known quantum-of-evidence as a requirement for a

compelled search. TEX. TRANSP. CODE § 724.012(b). The probable cause

requirement—in     tandem    with   the    codified       gravity-of-the-crime   and

dissipation-of-alcohol   exigencies—creates           a     neutral,   non-arbitrary

framework authorizing a narrowly-defined seizure from an already-in-

                                       9
custody arrestee.    These refinements in the implied-consent statutes

structure embrace the essence of Fourth Amendment reasonableness.

     B.      Special-needs framework adds to the reasonableness
             calculation

     The now-withdrawn Villarreal decision rejected application of the

Supreme Court’s special needs doctrine to the mandatory blood draw

framework.     Villarreal, 2014 WL 6734178, at *14–15; see Skinner v.

Railway Labor Executives’ Ass’n, 489 U.S. 602, 619 (1989). However, the

Court did not consider that blood drawn pursuant to Chapter 724’s mandate

also implicates administrative license revocation [ALR] procedures, a

separate regulatory process that focuses on protecting the traveling public

by removing offenders from the road.           See TEX. TRANSP. CODE §

524.012(b)(1) (mandating license suspension based upon BAC).

     “The primary purpose of the administrative license suspension statute

is not to deter the licensee or to seek retribution, but to protect the public

from the carnage on the public roads of Texas caused by drunk drivers.”

Tharp v. State, 935 S.W.2d 157, 159 (Tex. Crim. App. 1996).             Such

regulation focuses on the government’s strong interest in removing

intoxicated drivers from the road, just as railroad regulation in Skinner

sought to increase railway safety by detecting intoxicated employees.

Compare Skinner, 489 U.S. at 620–21 with Tharp, 935 S.W.2d at 159.
                                     10
     Special needs’ principles recognize the statute’s provision of a

neutral, detached vehicle for protecting citizens from impaired drivers and

defendants from unfettered discretion.       The special-needs exception

constitutes another factor to consider in a non-dualistic analysis that

renders Texas’ compelled-draw framework reasonable.

     C.     Erroneous consideration of the “Less Intrusive
            Means” test

     The original Villarreal decision considered the ready availability of

warrants when rejecting the validity of Texas’ mandatory draw statute.

Villarreal, 2014 WL 6734178, at *18 (finding no compelling need to uphold

warrantless, nonconsensual blood searches where warrants are “often

readily available”). However, factors such as electronic warrants and the

availability of a magistrate shift the focus away from an officer’s conduct

and, instead, weigh considerations of alternative means. But see McNeely,

133 S. Ct. at 1560–64 (Part IIB’s alternative means analysis applied when

determining whether per se exigency existed).

     The Supreme Court resoundingly rejected applying less-intrusive-

alternative-practices arguments to Fourth Amendment cases not resolved

under the exigency exception. Vernonia School Dist. 47J v. Acton, 515

U.S. 646, 663–64 n.3 (1995) (upholding warrantless, random urine

screening    of   athletes    after    considering   diminished    privacy,
                                      11
unobtrusiveness, and severity of need, spurning arguments relying on less

intrusive alternatives); Skinner, 489 U.S. at 629 n.9 (upholding random,

suspicionless drug screening of railway employees under special needs

exception     and        discarding   less-drastic-and-equally-effective-means

arguments).    One footnote in Skinner flatly debunks the propriety of

considering less-drastic alternatives in scenarios that include warrantless

and even suspicionless seizures for toxicological testing, similar to

Appellant’s facts. Id.

      The State maintains that less-restrictive-alternatives logically apply

when a seizure’s validity rests solely on the temporal factors presenting an

exigency; less-drastic, post-hoc what-ifs do not apply, however, to

reasonableness calculations factoring in other warrantless exceptions.

Hence, Villarreal’s analysis mistakenly applied this eschewed construct.

II.   Implied-consent draws are reasonable

      Reasonableness has always been the linchpin of the Fourth

Amendment, venerated in the provision’s plain language.          U.S. CONST.

amend IV; Hulit v. State, 982 S.W.2d 431, 435–36, 438 (Tex. Crim. App.

1998). Discernment of what is “reasonable” requires courts to consider the

balance between an individual’s privacy and legitimate governmental

interests, especially when public safety is of utmost concern.            See


                                       12
Maryland v. King, 569 U.S. ___, 133 S. Ct. 1958, 1979 (2013); Michigan

Dept. of State Police v. Sitz, 496 U.S. 444, 455 (1990); Segundo v. State,

270 S.W.3d 79 (Tex. Crim. App. 2008), cert. denied, 558 U.S. 828 (2009).

Villarreal viewed the choice between applying a Fourth Amendment

exception and consideration of a reasonableness balancing approach as

mutually exclusive analytical constructs. The State respectfully believes

that this black-white consideration of these two concepts is mistaken,

especially in light of the fact that this Court has relied upon the balancing

approach to assay reasonableness on similar issues. See Segundo, 270

S.W.3d at 96–99; McGee v. State, 105 S.W.3d 609 (Tex. Crim. App. 2003);

Hulit, 982 S.W.2d at 434 n.1, 436.

     Again, the statute is reasonable.     Years ago, the Supreme Court

recognized that a framework requiring a driver’s consent was anything but

nonsensical.   The Breithaupt court pointed to then recently adopted

implied-consent provisions and wrote:

     It might be a fair assumption that a driver on the highways in
     obedience to a policy of the State, would consent to have a
     blood test made as part of a sensible and civilized system
     protecting himself as well as other citizens not only from the
     hazards of the road due to drunken driving, but also from some
     use of dubious lay testimony.

Breithaupt v. Abram, 352 U.S. 432, 435 n.2 (1957). The State contends

that compelled draws under implied-consent provisions are inherently
                                     13
reasonable when weighing the needs of all involved.         Indeed, Fourth

Amendment reasonableness underpins the statute.            The well-known

exceptions—as argued in the myriad cases already before this Court—

considered individually and in concert with each other, alongside a

balancing of the competing interests, all support the continued viability of

Texas’ implied-consent framework.

III.   Exclusionary rule inapplicable and not invoked

       Statutory mandatory blood-draws are reasonable. But see Villarreal,

2014 WL 6734178 (opinion on original submission; under re-submission).

When the ink dries on Villarreal and future McNeely-related decisions and if

those cases are adverse to the State on the merits, the rules requiring

evidence exclusion should not apply to mandatory blood-draw scenarios

that occurred prior to the Supreme Court’s April 2012 pronouncement.

       Federally, the good-faith exception to the Fourth Amendment’s

exclusionary rule applies when law enforcement, at the time of the search,

acted with objectively reasonable reliance on (1) a statute, later declared

unconstitutional, or (2) binding judicial precedent, subsequently overruled.

Illinois v. Krull, 480 U.S. 342, 349–57 (1987) (statutes); Davis v. United

States, ___ U.S. ___, 131 S. Ct. 2419, 2428–34 (2011) (caselaw).




                                    14
      Under state law, the Texas exclusionary rule is not invoked

because—at the time of the offense—no violation occurred.            The State

recognizes that article 38.23(b)—Texas’ limited good faith exception—

requires a warrant. TEX. CODE CRIM. APP. § 38.23(b). Notwithstanding,

invocation of exclusionary rule principles relies on article 38.23(a). That

subsection’s plain language requires a violation for exclusion to be

triggered. When Appellant’s blood was drawn, no one credibly questioned

the validity of the officer’s statutory authority. In other words, at the time of

the seizure, the officer followed then-existing law. See TEX. CODE CRIM.

PROC. art. 38.23(a); see also TEX. PENAL CODE § 1.07(a)(30) (defining “law”

as meaning the state and federal constitution and statutes, in addition to

the written opinions of a court of record); see also Davis, 131 S. Ct. at

2427–28 (“obtained” applies to unlawfulness at the time of the seizure;

exclusion not triggered in an absence of police culpability). Simply put, the

instant circumstances do not invoke exclusion.

      The Supreme Court mentioned, in dictum, the application of the

exclusionary rule versus Fourth Amendment violations in a non-blood-draw

scenario decided recently. In Heien, the Court weighed the validity of an

investigatory stop where the officer misunderstood the traffic code provision

he relied on to support the stop. See Heien v. North Carolina, 135 S. Ct.

                                       15
530, 538–39 (2014). The Supreme Court considered the reasonableness

of the officer’s mistake that lead to the stop and arrest when considering

remedies. In so doing, the Court pointed out the myriad decisions finding

exclusionary-rule invocation inappropriate where the officer’s conduct—

valid at the time—was later declared unconstitutional. Id. With only one

justice dissenting, the Supreme Court’s decision pondered the exclusionary

rule’s limits which had been briefly considered in Michigan v. DeFillippo.

Heien, 135 S. Ct at 538–39; see generally Michigan v. DeFillippo, 443 U.S.

31, 3–9 (1979) (suggesting that exclusion might have been appropriate had

the provision been “grossly and flagrantly unconstitutional”).

      Although the Heien discussion is merely dicta, it reiterates the

importance of focusing on the fact that the instant officer’s conduct fully

complied with mandatory, settled law at the time of Appellant’s arrest.

Heien, 135 S. Ct. at 538–39.           McNeely and subsequent caselaw

questioning implied-consent blood draws came later. Since, no violation

occurred at the time of the Appellant’s 2011 blood draw, Texas’

exclusionary provision does not apply.        TEX. CODE CRIM. PROC. art.

38.23(a). And since any legal error by the officer was reasonable, Fourth

Amendment cases do not mandate the remedy of exclusion. See Heien,

135 S. Ct. at 539.

                                     16
                     CONCLUSION AND PRAYER

     Review should be granted and the decision of the Court of Appeals

should be reversed; Appellant’s felony DWI with a child passenger

conviction should be upheld.

                                Respectfully submitted,

                                SHAREN WILSON
                                Criminal District Attorney
                                Tarrant County, Texas

                                DEBRA WINDSOR, Assistant
                                Criminal District Attorney
                                Chief, Post-Conviction

                                /s/ Tanya S. Dohoney
                                TANYA S. DOHONEY
                                Assistant Criminal District Attorney
                                Tim Curry Criminal Justice Center
                                401 W. Belknap
                                Fort Worth, Texas 76196-0201
                                (817) 884-1687
                                FAX (817) 884-1672
                                State Bar No. 02760900
                                ccaappellatealerts@tarrantcountytx.gov




                                 17
                         CERTIFICATE OF COMPLIANCE

       This document complies with the typeface requirements of TEX. R.

APP. P. 9.4(e) because it has been prepared in a conventional typeface no

smaller than 14-point for text and 12-point for footnotes. This document

also complies with the word-count limitations of TEX. R. APP. P. 9.4 (i)

because it contains less than 4050 words, excluding any parts exempted

by TEX. R. APP. P. 9.4(i)(1), as computed by Microsoft Word, the computer

software used to prepare the document.

                                           /s/ Tanya S. Dohoney
                                           TANYA S. DOHONEY


                            CERTIFICATE OF SERVICE

       A true copy of the State's petition for discretionary review has been e-

served     to    opposing       counsel,      Hon.     Richard   A.   Henderson   at

richard@rahenderson.com, 100 Throckmorton Street, Suite 540, Fort

Worth, Texas 76102, and Hon. Mark G. Daniel at mgd1016@aol.com, 115

West Second Street, Suite 202, Fort Worth, Texas 76102 on this, the 8th

day of May 2015.

                                           /s/ Tanya S. Dohoney
                                           TANYA S. DOHONEY


H:\DOHONEY.D11\PDRS\042815 bowyer pdr post-villarreal-reh.docx

                                             18
APPENDIX




   A
                                                                                                         Page 1
Not Reported in S.W.3d, 2015 WL 1120332 (Tex.App.-Fort Worth)
(Cite as: 2015 WL 1120332 (Tex.App.-Fort Worth))




                                                          conviction for driving while intoxicated (DWI)
Only the Westlaw citation is currently available.         with a child passenger under the age of fifteen. See
                                                          Tex. Penal Code Ann. § 49.045(a)(2) (West
SEE TX R RAP RULE 47.2 FOR DESIGNATION                    Supp.2011). In a single issue, Bowyer argues that
AND SIGNING OF OPINIONS.                                  the trial court erred by denying his motion to sup-
                                                          press blood alcohol test results obtained using the
MEMORANDUM OPINIONDO NOT PUBLISH
                                                          mandatory-blood-draw procedure of the Texas
TEX.R.APP. P. 47.2(B)
                                                          Transportation Code and without his consent or a
            Court of Appeals of Texas,                    valid search warrant. See Tex. Transp. Code Ann.
                    Fort Worth.                           §§ 724.011(a), 724.012(b), 724.013 (West 2011).
           Joshua Ed Bowyer, Appellant                    Following the court of criminal appeals's recent
                         v.                               opinion in State v. Villarreal, No. PD–0306–14,
             The State of Texas, State                    ––– S.W.3d ––––, 2014 WL 6734178, at *21
                                                          (Tex.Crim.App. Nov. 26, 2014), in which the court
            NO. 02–13–00315–CR                            held that such a warrantless, nonconsensual draw of
          DELIVERED: March 12, 2015                       a DWI suspect's blood does not categorically fall
                                                          within any recognized exception to the Fourth
FROM THE 371ST DISTRICT COURT OF TAR-                     Amendment's warrant requirement, nor can it be
RANT COUNTY, TRIAL COURT NO. 1283996D.                    justified under a general Fourth Amendment balan-
HON. MOLLEE WESTFALL, JUDGE                               cing test, we will reverse the trial court's suppres-
Richard A. Henderson, Richard A. Henderson,               sion order and judgment and remand the case to the
P.C., Fort Worth, TX, for Appellant.                      trial court.

Sharen Wilson, Criminal District Attorney; Debra            II. FACTUAL AND PROCEDURAL BACK-
Windsor, Chief Of Post-Conviction; Tanya S. Do-                                  GROUND
honey, Kelly Loftus, Assistant Criminal District At-           The State indicted Bowyer for DWI with a
torneys; Tarrant County Office Of The Criminal            child passenger. He filed a “MOTION TO SUP-
District Attorney, Fort Worth, TX, for State.             PRESS       SEARCH         WITHOUT        WARRANT
                                                          (MANDATORY BLOOD DRAW PURSUANT TO
                                    FN2                   TRANSPORTATION CODE SECTION 724.012).”
PANEL: MEIER and GABRIEL, JJ.
                                                          At the suppression hearing, the State conceded that
                                                          the officers in this case had time to secure a warrant
        FN2. Justice McCoy was a member of the            to conduct a blood draw but did not do so because
        original panel but has retired in the inter-      they were following Texas's mandatory-blood-draw
        im.                                               statute. See Tex. Transp. Code Ann. §
                                                          724.012(b)(2). After the hearing, the trial court
                                        FN1               denied Bowyer's motion to suppress. Bowyer then
        MEMORANDUM OPINION
                                                          pleaded guilty pursuant to a plea bargain, and in ac-
        FN1. See Tex.R.App. P. 47.4.                      cordance with the plea bargain, the trial court sen-
                                                          tenced Bowyer to two years' confinement in the
BILL MEIER, JUSTICE                                       State jail and a $1,000 fine, suspended imposition
            I. INTRODUCTION                               of the confinement portion of the sentence, and
   *1 Appellant Joshua Ed Bowyer appeals his              placed Bowyer on community supervision for five




                          © 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
                                                                                                       Page 2
Not Reported in S.W.3d, 2015 WL 1120332 (Tex.App.-Fort Worth)
(Cite as: 2015 WL 1120332 (Tex.App.-Fort Worth))




years. This appeal followed.                              to the mandatory-blood-draw and implied-consent
                                                          provisions of the Texas Transportation Code viol-
   III. BLOOD DRAW VIOLATED FOURTH                        ated the Fourth Amendment.”). We further hold
                   AMENDMENT                              that the trial court erred by denying Bowyer's mo-
     Following the United States Supreme Court's          tion to suppress the blood alcohol test results, and
decision in Missouri v. McNeely, the court of crim-       we sustain his sole issue.
inal appeals recently held that the provisions in the
Texas Transportation Code do not, taken by them-                          IV. CONCLUSION
selves, form a constitutionally valid alternative to           Having sustained Bowyer's sole issue, we re-
the Fourth Amendment warrant requirement. –––             verse the trial court's order denying Bowyer's mo-
U.S. ––––, 133 S.Ct. 1552, 1563 (2013); Villarreal,       tion to suppress and the trial court's judgment, and
––– S.W.3d at ––––, 2014 WL 6734178, at *10–16.           we remand this case to the trial court for further
Specifically, the court in Villarreal rejected the        proceedings consistent with this opinion.
State's arguments that (1) a warrantless, nonconsen-
sual blood test under the transportation code should
                                                          Tex.App.-Fort Worth, 2015
be upheld as categorically reasonable under the
                                                          Bowyer v. State
consent exception—applicable in the form of a pri-
                                                          Not Reported in S.W.3d, 2015 WL 1120332
or waiver through implied consent, the automobile
                                                          (Tex.App.-Fort Worth)
exception, the special-needs exception, or the
search-incident-to-arrest exception, (2) a blood          END OF DOCUMENT
draw should be treated as a seizure instead of a
search, and (3) such a search may be upheld on the
basis that it is reasonable under a general Fourth
Amendment balancing test. Id. at ––––, 2014 WL
6734178, *10–17. The State raises these same argu-
ments in this appeal.

     *2 In this case, Bowyer did not consent to a
blood draw, and a warrant to draw his blood was
not obtained. The State does not rely on the exigent
circumstances exception to the warrant require-
ment. And despite having time to obtain a warrant,
the officers in this case relied exclusively on the
“mandatory provisions” of transportation code sec-
tion 724.012(b)(2) for the warrantless blood draw.
See Tex. Transp. Code Ann. § 724.012(b)(2). We
hold that this warrantless, nonconsensual blood
draw conducted pursuant to the mandatory-
blood-draw and implied-consent provisions of the
Texas Transportation Code violated the Fourth
Amendment. See Burks v. State, ––– S.W.3d ––––,
No. 02–13–00560–CR, 2015 WL 115964, at *1–3
(Tex.App.—Fort Worth Jan. 8, 2015, no pet.)
(“Following Villarreal, we hold that this warrant-
less, nonconsensual blood draw conducted pursuant




                          © 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
