                                                                                    PD-0857-14
                                                                   COURT OF CRIMINAL APPEALS
                                                                                    AUSTIN, TEXAS
March 16, 2015                                                   Transmitted 3/16/2015 9:00:06 AM
                                                                   Accepted 3/16/2015 9:26:10 AM
                                                                                     ABEL ACOSTA
                             No. PD-0857-14                                                  CLERK
                 IN THE COURT OF CRIMINAL APPEALS
                               OF TEXAS
     _____________________________________________________________

                           NO. 14-12-00642-CR
                      IN THE COURT OF APPEALS
             FOURTEENTH JUDICIAL DISTRICT OF TEXAS
                           HOUSTON, TEXAS
     _____________________________________________________________

                              THE STATE OF TEXAS
                                    Appellant

                                           vs.

                         KENNETH LEE DOUDS
                                Appellee
     _____________________________________________________________

                  NOTICE OF ADDITIONAL AUTHORITY

         TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:

         COMES NOW, THE STATE OF TEXAS, Appellant in the above cause, and
 files this Notice of Additional Authorities. This notice is to inform the Court of
 Criminal Appeals of the following cases for their consideration in the above cause
 set for submission on Oral Argument on March 18, 2015 at 9:00 A.M. Both of these
 cases held that the defendant failed to preserve error under circumstances similar
 to the instant case:
         Cases:
         Lyssy v. State, 01-12-00898-CR, 2014 WL 714924 (Tex. App. – Houston [1st

 Dist.] Feb 6, 2014, no pet.)(not designated for publication);




                                            1
      Kay v. State, 01-13-00595-CR, 2014 WL 3697917 (Tex. App. – Houston [1st

Dist.] July 24, 2014, no pet.)(not designated for publication).



                                               Respectfully submitted,



                                               /S/ DAVID BOSSERMAN
                                               David Bosserman
                                               Assistant Criminal District Attorney
                                               SBN 0267520
                                               111 East Locust, Suite 408A
                                               Angleton, Texas 77515
                                               (979) 864-1232
                                               Fax (979) 864-1525


                              CERTIFICATE OF SERVICE

       I hereby certify that a true copy of this State’s Notice of Additional
Authority was served by E-service on Charles D. Adams, attorney for Appellee, in
compliance with Rule 9.5 of the Rules of Appellate Procedure. A copy was also
served by E-service on the State Prosecuting Attorney in compliance with Rule
68.11 of the Rules of Appellate Procedure. E-service was completed on this the
16th day of March, 2015.

Charles D. Adams                        Lisa C. McMinn
Attorney for Appellee-Defendant         State Prosecuting Attorney
7930 Broadway, Suite 106                P.O. Box 13046
Pearland, Texas 77581                   Austin, Texas 78711
Bar No. 24026760                        Bar No. 13803300
Email: cda@cdadamslaw.com               Email: Lisa.McMinn@spa.texas.gov




                                           2
Lyssy v. State, 429 S.W.3d 37 (2014)
2014 WL 714924

                                                                     take breath or blood samples from a suspect
                                                                     arrested for driving while intoxicated (DWI)
                    429 S.W.3d 37
                                                                     when the officer has reliable information from
               Court of Appeals of Texas,
                                                                     a credible source that the suspect has two prior
                 Houston [1st Dist.].
                                                                     DWI convictions, where defendant's motion
             Michael Joe LYSSY, Appellant                            to suppress, as it developed at the hearing,
                          v.                                         demonstrated that his challenge at trial was based
             The STATE of Texas, Appellee.                           solely on a failure to observe the statute's terms,
                                                                     not an attack on the constitutionality of what
        No. 01–12–00898–CR.          |   Feb. 6, 2014.               it authorized. Rules App.Proc., Rule 33.1(a);
                                                                     V.T.C.A., Transportation Code § 724.012(b).
Synopsis
Background: After his motion to suppress evidence was                2 Cases that cite this headnote
denied, defendant entered nolo contendere plea in the County
Court at Law No. 2, Galveston County, Barbara Roberts, J.,     [2]   Criminal Law
to driving while intoxicated (DWI). Defendant appealed.                  Adding to or changing grounds of objection
                                                                     110 Criminal Law
                                                                     110XXIV Review
Holdings: The Court of Appeals, Michael Massengale, J.,              110XXIV(E) Presentation and Reservation in
held that:                                                           Lower Court of Grounds of Review
                                                                     110XXIV(E)1 In General
                                                                     110k1043 Scope and Effect of Objection
[1] defendant waived for appellate review issue as to
                                                                     110k1043(3) Adding to or changing grounds of
constitutionality of taking blood under DWI statute, and
                                                                     objection
                                                                     To preserve the issue for appellate review,
[2] dispatcher's notice of two prior DWI convictions was
                                                                     the appellant's issue must correspond with the
reliable so as to require taking of breath or blood sample.
                                                                     objection he made at trial. Rules App.Proc., Rule
                                                                     33.1(a).
Affirmed.
                                                                     1 Cases that cite this headnote

Evelyn V. Keyes, J., issued dissenting opinion.
                                                               [3]   Criminal Law
                                                                         Adding to or changing grounds of objection
                                                                     110 Criminal Law
 West Headnotes (11)
                                                                     110XXIV Review
                                                                     110XXIV(E) Presentation and Reservation in
 [1]    Criminal Law                                                 Lower Court of Grounds of Review
            Sufficiency and Scope of Motion                          110XXIV(E)1 In General
                                                                     110k1043 Scope and Effect of Objection
        110 Criminal Law
                                                                     110k1043(3) Adding to or changing grounds of
        110XXIV Review
                                                                     objection
        110XXIV(E) Presentation and Reservation in
                                                                     An objection stating one legal theory may not be
        Lower Court of Grounds of Review
                                                                     used to support a different legal theory on appeal;
        110XXIV(E)1 In General
        110k1044 Motion Presenting Objection
                                                                     this is true even if the alleged error implicates
        110k1044.2 Sufficiency and Scope of Motion                   constitutional guaranties. Rules App.Proc., Rule
        110k1044.2(1) In general                                     33.1(a).
        Defendant waived for appellate review issue
                                                                     1 Cases that cite this headnote
        as to constitutionality of taking blood under
        statute requiring law enforcement officers to



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                         1
Lyssy v. State, 429 S.W.3d 37 (2014)
2014 WL 714924


 [4]    Criminal Law                                                 Cases that cite this headnote
            Necessity of specific objection
        110 Criminal Law                                       [7]   Criminal Law
        110XXIV Review
                                                                         Necessity of specific objection
        110XXIV(E) Presentation and Reservation in
                                                                     110 Criminal Law
        Lower Court of Grounds of Review
                                                                     110XXIV Review
        110XXIV(E)1 In General
        110k1043 Scope and Effect of Objection                       110XXIV(E) Presentation and Reservation in
        110k1043(2) Necessity of specific objection                  Lower Court of Grounds of Review
                                                                     110XXIV(E)1 In General
        The purpose of requiring a specific objection
                                                                     110k1043 Scope and Effect of Objection
        in the trial court is twofold: (1) to inform the
                                                                     110k1043(2) Necessity of specific objection
        trial judge of the basis of the objection and give
                                                                     When the correct ground for exclusion was
        him the opportunity to rule on it; (2) to give
                                                                     obvious to the judge and opposing counsel, no
        opposing counsel the opportunity to respond to
                                                                     forfeiture results from a general or imprecise
        the complaint. Rules App.Proc., Rule 33.1(a).
                                                                     objection; on the other hand, when the
        Cases that cite this headnote                                context shows that a party failed to effectively
                                                                     communicate his argument, then the error will be
                                                                     deemed forfeited on appeal.
 [5]    Criminal Law
            Necessity of specific objection                          Cases that cite this headnote
        110 Criminal Law
        110XXIV Review
                                                               [8]   Criminal Law
        110XXIV(E) Presentation and Reservation in
                                                                         Scope and Effect of Objection
        Lower Court of Grounds of Review
        110XXIV(E)1 In General                                       110 Criminal Law
        110k1043 Scope and Effect of Objection                       110XXIV Review
        110k1043(2) Necessity of specific objection                  110XXIV(E) Presentation and Reservation in
        A party must be specific enough so as to let the             Lower Court of Grounds of Review
                                                                     110XXIV(E)1 In General
        trial judge know what he wants, why he thinks
                                                                     110k1043 Scope and Effect of Objection
        himself entitled to it, and do so clearly enough for
                                                                     110k1043(1) In general
        the judge to understand him at a time when the
                                                                     A complaint that could, in isolation, be read
        trial court is in a proper position to do something
                                                                     to express more than one legal argument will
        about it. Rules App.Proc., Rule 33.1(a).
                                                                     generally not preserve all potentially relevant
        Cases that cite this headnote                                arguments for appeal. Rules App.Proc., Rule
                                                                     33.1(a).

 [6]    Criminal Law                                                 Cases that cite this headnote
            Scope and Effect of Objection
        110 Criminal Law                                       [9]   Automobiles
        110XXIV Review
                                                                         Grounds or cause; necessity for arrest
        110XXIV(E) Presentation and Reservation in
                                                                     48A Automobiles
        Lower Court of Grounds of Review
                                                                     48AIX Evidence of Sobriety Tests
        110XXIV(E)1 In General
                                                                     48Ak417 Grounds for Test
        110k1043 Scope and Effect of Objection
                                                                     48Ak419 Grounds or cause; necessity for arrest
        110k1043(1) In general
        To decide whether a general complaint was                    When police officer heard from his dispatcher
        sufficient to preserve error for appellate review,           that defendant had been convicted of “DWI
        context must be considered. Rules App.Proc.,                 Second Conviction,” officer possessed reliable
        Rule 33.1(a).                                                information from a credible source that



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                      2
Lyssy v. State, 429 S.W.3d 37 (2014)
2014 WL 714924

        defendant had been convicted twice of driving                  Ultimately, the appellate court will sustain the
        while intoxicated (DWI), thus requiring officer                trial court's ruling on a motion to suppress
        to take breath or blood sample from defendant;                 evidence if its ruling is reasonably supported by
        while the information communicated to officer                  the record and is correct on any theory of law
        could have been characterized as being                         applicable to the case.
        incomplete insofar as the dispatcher did not
        also mention a first conviction for DWI, officer               Cases that cite this headnote
        was not required to further investigate the
        information he received before being entitled to
        rely on it in the field. V.T.C.A., Transportation
        Code § 724.012(b).                                    Attorneys and Law Firms

        1 Cases that cite this headnote                       *38 Tad Nelson, Amber Spurlock, Tad Nelson &
                                                              Associates, League City, TX, for Appellant.

 [10]   Criminal Law                                          Jack Roady, District Attorney, Rebecca Klaren, Assistant
            Review De Novo                                    District Attorney, Galveston County, Galveston, TX, for
        Criminal Law                                          Appellee.
            Evidence wrongfully obtained
                                                              Panel consists of       Justices   KEYES,      HIGLEY,       and
        110 Criminal Law
                                                              MASSENGALE.
        110XXIV Review
        110XXIV(L) Scope of Review in General
        110XXIV(L)13 Review De Novo
        110k1139 In general                                                             OPINION
        110 Criminal Law
        110XXIV Review                                        MICHAEL MASSENGALE, Justice.
        110XXIV(O) Questions of Fact and Findings
        110k1158.8 Evidence                                    **1 This appeal concerns a Texas statute which requires a
        110k1158.12 Evidence wrongfully obtained              law enforcement officer to take a blood sample from a suspect
        A trial court's decision on a motion to suppress is   arrested for driving while intoxicated when the officer has
        reviewed using a bifurcated standard of review;       reliable information from a credible source that the suspect
        while the appellate court shows almost total          has two prior convictions for driving while intoxicated.
        deference to the trial court's determinations of      SeeTEX. TRANSP. CODE ANN. § 724.012(b) (West 2011).
        historical fact, the appellate court reviews the      Appellant Michael Joe Lyssy was charged by information
        trial court's application of the law of search        with the misdemeanor offense of driving while intoxicated.
        and seizure to the facts de novo. U.S.C.A.            SeeTEX. PENAL CODE ANN. § 49.04 (West 2011). Lyssy
        Const.Amend. 4.                                       moved to suppress evidence of a blood draw taken the night of
                                                              his arrest. He argued that the report of his criminal history on
        Cases that cite this headnote                         which the officer relied was not reliable or credible because
                                                              it listed a conviction for “driving while intoxicated 2nd”
 [11]   Criminal Law                                          but no prior DWI conviction. The trial court denied this
            Theory and Grounds of Decision in Lower           motion. After the trial court denied his motion to suppress,
        Court                                                 Lyssy entered a plea of nolo contendere and was convicted of
                                                              driving while intoxicated.
        110 Criminal Law
        110XXIV Review
                                                              In his sole appellate issue, Lyssy argues that the trial court
        110XXIV(L) Scope of Review in General
        110XXIV(L)5 Theory and Grounds of Decision            erred by denying his motion to suppress. We affirm.
        in Lower Court
        110k1134.60 In general




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                          3
Lyssy v. State, 429 S.W.3d 37 (2014)
2014 WL 714924


                                                                                  It's ... the database of all criminal
                         Background                                               histories, both within Texas and
                                                                                  nationally. It's administered by the
Officer Gavino Rivas of the League City Police Department
                                                                                  individual law enforcement agencies.
stopped Lyssy for failing to maintain a single lane of traffic.
                                                                                  For League City, we place everything
 *39 Rivas performed a field sobriety test. He also asked
                                                                                  there, from stolen vehicles, missing
Lyssy to blow into a breathalyzer, but was refused. He then
                                                                                  children, warrants, things like that; and
arrested Lyssy.
                                                                                  we're responsible for administering
                                                                                  our portion of the database.
Rivas called League City dispatch and asked for a report
on Lyssy from two databases, the Texas Crime Information             Rivas was asked how often he relies on information from
Center and the National Crime Information Center (TCIC/              TCIC/NCIC. He replied, “any incident, any contact with a
NCIC). Rivas provided Lyssy's license plate number and               potential subject, we rely on the returns given by our dispatch
his driver's license number to query. The resulting report           via TCIC/NCIC.” He testified that he has found information
listed multiple event cycles, including an arrest nearly seven       from TCIC/NCIC to be credible and reliable in the past. When
years earlier, which the database reported resulted in a guilty      questioned whether he had ever had a problems with the
plea and conviction for the class A misdemeanor offense of           accuracy of information from the databases, he answered,
“driving while intoxicated 2nd.” No other DWI conviction             “On a general basis, no, sir.” The trial court denied the motion
was included in the report.                                          to suppress.

Dispatch orally reported its findings to Rivas over the radio.       Pursuant to a plea bargain, Lyssy pleaded nolo contendere and
In Rivas's words, “The results came back that Mr. Lyssy's            was sentenced by the trial court to 365 days in jail, in addition
license was suspended, that he had prior convictions for             to a $300 fine. The court suspended this sentence and imposed
driving while license suspended, and he had ... a conviction         a twenty-four month term of community supervision. The
for DWI second conviction.” Rivas testified that he did not          trial court certified his right to appeal its decision on the
remember hearing anything about a first offense for DWI.             motion to suppress.

Based upon this information and the mandatory blood-draw
statute (Transportation Code chapter 724), Rivas requested a
sample of Lyssy's blood without obtaining a warrant. Lyssy                                      Analysis
refused. Rivas transported him to the hospital where one of
                                                                     In his appellate brief, Lyssy offers two reasons why the blood
its employees extracted a blood specimen.
                                                                     evidence should have been suppressed. His first reason is
                                                                     that the statute relied upon by the State to justify the blood
At the subsequent hearing on Lyssy's motion to suppress
                                                                     draw, TEX. TRANSP. *40 CODE ANN. § 724.012(b), is
the evidence resulting from the blood draw, Rivas testified,
                                                                     no longer a legitimate basis for search in light of Missouri v.
“From the information I have now ... he did not have
                                                                     McNeely, ––– U.S. ––––, 133 S.Ct. 1552, 185 L.Ed.2d 696
two convictions.” He also testified that on the night of the
                                                                     (2013). His second reason is that the statute itself was not
arrest, he relied on the TCIC/NCIC report to conclude that
                                                                     satisfied because the officer lacked reliable information that
Lyssy “did have two prior convictions for driving while
                                                                     Lyssy had two prior convictions for driving while intoxicated,
intoxicated,” and at the time he had no reason to doubt that
                                                                     as would require a blood draw under the statute.
information from the report.

                                                                     The relevant portion of the Transportation Code reads as
 **2 The TCIC database is maintained by the Texas
                                                                     follows:
Department of Public Safety. Both TCIC and NCIC are
updated “24/7.” Each participating law enforcement agency              (b) A peace officer shall require the taking of a specimen
inputs its own information on arrests. It is the responsibility of     of the person's breath or blood under any of the following
each agency to check the information it inputs for accuracy.           circumstances if the officer arrests the person for an offense
As Rivas described TCIC/NCIC:                                          under Chapter 49, Penal Code, involving the operation of
                                                                       a motor vehicle or a watercraft and the person refuses



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                4
Lyssy v. State, 429 S.W.3d 37 (2014)
2014 WL 714924

  the officer's request to submit to the taking of a specimen      (Tex.Crim.App.1990)). This is true even if the alleged error
  voluntarily:                                                     implicates constitutional guaranties. Id.

  ...                                                               [4] [5] “The purpose of requiring a specific objection in
                                                                   the trial court is twofold: (1) to inform the trial judge of the
        (3) at the time of the arrest, the officer possesses or
                                                                   basis of the objection and give him the opportunity to rule
           receives reliable information from a credible source
                                                                   on it; (2) to give opposing counsel the opportunity to respond
           that the person:
                                                                   to the complaint.” Resendez v. State, 306 S.W.3d 308, 312
  ...                                                              (Tex.Crim.App.2009). “[A] party must be specific enough so
                                                                   as to ‘let the trial judge know what he wants, why he thinks
        (B) on two or more occasions, has been previously          himself entitled to it, and do so *41 clearly enough for the
        convicted of or placed on community supervision            judge to understand him at a time when the trial court is in a
        for an offense under Section 49.04 [Driving While          proper position to do something about it.’ ” Id. at 313.
        Intoxicated], 49.05, 49.06, or 49.065, Penal Code, or
        an offense under the laws of another state containing       [6]    [7] To decide whether a general complaint was
        elements substantially similar to the elements of an       sufficient to preserve error, context must be considered.
        offense under those sections.                              Id.“When the correct ground for exclusion was obvious to
                                                                   the judge and opposing counsel, no forfeiture results from
   **3 (c) The peace officer shall designate the type of           a general or imprecise objection.” Id. On the other hand,
  specimen to be taken.                                            “when the context shows that a party failed to effectively
                                                                   communicate his argument, then the error will be deemed
TEX. TRANSP. CODE ANN. § 724.012(b)(3)(B), (c). When
                                                                   forfeited on appeal.” Id.
a person is arrested under the circumstances described in
section 724.012(b), that person's refusal to submit to the
                                                                   The arguments and evidence at the hearing were narrowly
taking of the specimen does not suspend the officer's statutory
                                                                   focused on whether the information requirements of section
duty to take it. Id. § 724.013.
                                                                   724.012(b)(3) were satisfied. The constitutionality of a search
                                                                   pursuant to the statute was not called into doubt. Looking
I. Waiver of constitutional challenge to section                   to Lyssy's written motion to suppress, he likewise did not
724.012(b)                                                         specifically challenge the constitutionality of blood draws
 [1] In his brief, Lyssy asserts that extraction of blood          made under the statute's authority. CR 17–20. Although he
pursuant to section 724.012(b) is unconstitutional given the       did complain that the search was warrantless and conducted
Supreme Court's decision in McNeely. However, Lyssy did            in the absence of exigent circumstances, he did so in a general
not argue before the trial court that blood extraction pursuant    form:
to section 724.012(b) was unconstitutional. Lyssy's argument
                                                                                **4 The warrantless stop and search
at the hearing on his motion to suppress was directed solely
                                                                               of the Defendant and the automobile
at whether the statutory predicates for a blood draw were
                                                                               and Defendants' personal property and
satisfied. RR 37–43. At no point during the hearing did he
                                                                               the interrogation of Defendant by the
attack the legitimacy of the statute as a basis for taking blood
                                                                               police were void and illegal because
in the absence of a warrant.
                                                                               they were conducted in the absence
                                                                               of exigent circumstances to stop the
 [2] [3] In order for a defendant to preserve his complaint
                                                                               vehicle which Defendant was driving
for appellate review, he must present to the trial court
                                                                               and search him and the vehicle.
a timely objection, request, or motion stating the specific
grounds for the ruling he wishes. TEX.R.APP. P. 33.1(a).           (Emphasis supplied.) Considered in context, we conclude that
An appellant's issue must correspond with the objection            this language was not sufficient to inform the trial court and
he made at trial. Broxton v. State, 909 S.W.2d 912, 918            opposing counsel of a challenge to the validity of searches
(Tex.Crim.App.1995). “ ‘An objection stating one legal             under section 724.012(b). See id. at 312; cf. Buchanan v.
theory may not be used to support a different legal theory on      State, 207 S.W.3d 772, 777 (Tex.Crim.App.2006) ( “[T]rial
appeal.’ ” Id. (quoting Johnson v. State, 803 S.W.2d 272, 292      counsel's allusions to ‘consent’ and ‘exigent circumstances'


                  © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                          5
Lyssy v. State, 429 S.W.3d 37 (2014)
2014 WL 714924

do not necessarily or exclusively refer to Chapter 14, so as to    court's ruling if its ruling is ‘reasonably supported by the
make it ‘obvious' that the appellant was raising it in addition    record and is correct on any theory of law applicable to the
to his purely constitutional claims.”).                            case.’ ” Valtierra, at 447–48 (quoting State v. Dixon, 206
                                                                   S.W.3d 587, 590 (Tex.Crim.App.2006)).
 [8] It is true that Lyssy's appellate objection to the
constitutionality of the search hinges on his claim that exigent    **5 The Transportation Code establishes that motor vehicle
circumstances were absent. Still, this is not sufficient to        operators who are arrested for DWI offenses are deemed to
interpret Lyssy's written motion to suppress as a challenge        have consented, subject to the remainder of the chapter, “to
to the constitutionality of searches pursuant to the statute.      the taking of one or more specimens of the person's breath or
This is because “a complaint that could, in isolation, be          blood for analysis to determine the alcohol concentration or
read to express more than one legal argument will generally        the presence in the person's body of a controlled substance,
not preserve all potentially relevant arguments for appeal.”       drug, dangerous drug, or other substance.” TEX. TRANSP.
Resendez, 306 S.W.3d at 314. As the Court of Criminal              CODE ANN. § 724.011(a). 2 Separate from the concept of
Appeals has held, “Only when there are clear contextual clues      implied consent by drivers arrested on suspicion of DWI,
indicating that the party was, in fact, making a particular        the statute also requires an officer to take a breath or blood
argument will that argument be preserved.” Id. The context         specimen when “at the time of the arrest, the officer possesses
of the motion to suppress, as it developed at the hearing,         or receives reliable information from a credible source that
demonstrates that Lyssy's challenge was based solely on a          the person ... on two or more occasions, has been previously
failure to observe the statute's terms, not an attack on the       convicted of or placed on community supervision for [driving
constitutionality of what it authorizes. See id. We conclude
                                                                   while intoxicated] ....”Id.§ 724.012(b)(3). 3
that Lyssy forfeited his objection to the constitutionality of
taking blood under section 724.012(b). See id. at 316–17. As
                                                                   2      The dissent misreads the statute when it alleges that
such, we assume, without deciding, the constitutionality of
                                                                          our holding “vitiates” the implied consent statute. As
section 724.012(b) for purposes of this appeal. 1
                                                                          noted above, the consent that is “deemed” by the statute
                                                                          is triggered by the arrest for the DWI offense, and
1      The dissent declares McNeely to be “inapplicable” on the           that deemed consent is not conditioned on two prior
       merits. This is an unresolved issue. See, e.g., Aviles v.          DWI convictions. SeeTEX. TRANSP. CODE ANN. §
       Texas, –––U.S. ––––, 134 S.Ct. 902, 187 L.Ed.2d 767                724.011(a) (West 2011). The statute anticipates that
       (2014) (order vacating judgment and remanding case for             despite this deemed consent, a person nevertheless may
       reconsideration in light of McNeely ).                             refuse the request of a peace officer to submit to the
                                                                          taking of a specimen. In that event, certain consequences
II. Reliability of information to justify blood draw                      result, including license suspension and confiscation.
 [9]     [10]    [11] Lyssy's second argument is that even                See, e.g., id. § 724.032.
if section 724.012(b) is a constitutional *42 basis for a        3        The officer's possession or receipt of “reliable
warrantless search, “the blood draw must still be excluded                information from a credible source that the person ... on
because the information received by Officer Rivas had                     two or more occasions, has been previously convicted of
an error on its face making it internally inconsistent and                or placed on community supervision for [driving while
unreliable.” We review a trial court's decision on a motion               intoxicated],”id.§ 724.012(b)(3), is therefore significant
to suppress using a bifurcated standard of review. Valtierra              not as a precondition for deemed consent, as suggested
v. State, 310 S.W.3d 442, 447 (Tex.Crim.App.2010). While                  by the dissent, but instead because it is one of the
we show “almost total deference” to the trial court's                     conditions under which a peace officer “shall require”
determinations of historical fact, we review its application of           the taking of the specimen, even in the face of the
                                                                          person's refusal to submit voluntarily. Id.§ 724.012(b).
the law of search and seizure to the facts de novo. Id. Since
                                                                          Accordingly, the dissent's suggestion that the court
the trial judge in this case did not make express findings of
                                                                          holds “that an officer's subjective belief that an implied
fact, we will imply “the necessary fact findings that would
                                                                          consent statute has been satisfied is sufficient to imply
support the trial court's ruling if the evidence (viewed in the           consent” completely misconstrues both the operation of
light most favorable to the trial court's ruling) supports these          the statute and our application of it, and we disavow that
implied fact findings.” State v. Kelly, 204 S.W.3d 808, 819               mischaracterization of our holding.
(Tex.Crim.App.2006). Ultimately, “[w]e will sustain the trial



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                     6
Lyssy v. State, 429 S.W.3d 37 (2014)
2014 WL 714924

Lyssy does not challenge the credibility of TCIC/NCIC as a
source of information or the credibility of the League City         **6 In the present case, Rivas was told by the dispatcher that
Police Department dispatcher as a conduit of TCIC/NCIC             Lyssy had a conviction for “DWI Second Conviction.” As
information to an officer in the field. What he does challenge     in Comperry, this information implied multiple convictions
is the reliability of the information Rivas received from the      for driving while intoxicated. See id. While the information
dispatcher: he asserts that it contained an error that made        communicated to Rivas could be characterized as being
it internally inconsistent. Specifically, Rivas was told that      incomplete insofar as the dispatcher did not also mention
Lyssy had a conviction for “DWI Second Conviction,” but            a first conviction for DWI, Rivas did not have to further
he was not specifically informed of any other convictions          investigate the information he received “before being entitled
 *43 for driving while intoxicated. Lyssy thus argues that         to rely on it” in the field. See id.; see also State v.
the information Rivas received was patently inconsistent and       Terrazas, 406 S.W.3d 689, 694 (Tex.App.-El Paso 2013,
therefore unreliable.                                              no pet.) (“[L]aw enforcement investigating or confirming
                                                                   criminal history is not a requirement under [the blood draw
Rivas testified that he relies on TCIC/NCIC for “any contact       statute].”). 4
with a potential subject,” that he has found information from
the database to be credible and reliable, and that “on a general   4       Like the court in State v. Flores, 392 S.W.3d 229
basis,” he has had no problems with the accuracy of the
                                                                           (Tex.App.-San Antonio 2012, pet. ref'd), “we do not
database. Any discrepancy inferred from the bare fact that
                                                                           mean to suggest that information contained in the NCIC/
Rivas was informed of a “DWI Second Conviction” but                        TCIC is per se reliable.” Id. at 237. Nothing in our
not a first conviction for driving while intoxicated did not               opinion should be taken to suggest the impropriety of
necessarily render the information Rivas received from his                 a challenge to reliance on such information given an
dispatcher unreliable.                                                     appropriate record. See id. (“[A] trial court must make
                                                                           the finding of reliability of the information based on the
In Comperry v. State, an officer arrested the defendant for                specific evidence presented.”).
driving while intoxicated and took him to jail. 375 S.W.3d         Later, with the benefit of additional information obtained by
508, 510 (Tex.App.-Houston [14th Dist.] 2012, no pet.).            the time of the hearing on the motion to suppress, Rivas
Once there, the officer obtained a TCIC printout for the           testified that the report contained an error. But nothing
defendant. Id. The report listed two convictions for driving       contained in the information received from TCIC/NCIC or
while intoxicated, one in Harris County and one in Galveston       in the information communicated by the dispatcher to Rivas
County. Id. In reality, the defendant had only been convicted      rose to the level of a *44 glaring contradiction that would
once of DWI. Id. at 511. The event cycle for the Galveston         undermine the general reliability of the information coming
County matter recited that the defendant had been arrested         from a source that has not been challenged on the basis
for DWI. Id. at 510. It then listed two convictions—one for        of its credibility. The trial court therefore reasonably could
obstructing a highway and one for DWI—but the defendant            have concluded that the report's inclusion of a conviction
actually had been convicted only of obstructing a highway. Id.     specifically identified as “driving while intoxicated 2nd” was
The defendant further argued that the information contained        not rendered facially unreliable simply because the report did
in the TCIC report contained “facial irregularities” because       not also separately identify the preceding DWI conviction.
the convictions were “the result of the same plea on the same
date, in the same court, and under the same cause number.”         We conclude that the record supports the conclusion that
Id. at 516–17. The defendant argued that the irregularities        when Rivas heard from his dispatcher that Lyssy had
should have alerted the officer and spurred an investigation       been convicted of “DWI Second Conviction,” he possessed
of the underlying facts. Id. Despite the trial court's finding     reliable information from a credible source that Lyssy had
that the information was “confusing and possibly incorrect in      been convicted twice of driving while intoxicated. See
the way it [was] displayed,”id. at 511, the court of appeals       Terrazas, 406 S.W.3d at 694; State v. Flores, 392 S.W.3d 229,
rejected the defendant's position. See id. at 517. It reasoned     238 (Tex.App.-San Antonio 2012, pet. ref'd); Comperry, 375
that the TCIC record “plainly reflected” multiple convictions      S.W.3d at 518. We therefore overrule Lyssy's issue.
for driving while intoxicated and that an officer need not “so
closely examine a TCIC report before being entitled to rely
on it.” Id.



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                     7
Lyssy v. State, 429 S.W.3d 37 (2014)
2014 WL 714924


                                                                   At the subsequent hearing on Lyssy's motion to suppress the
                         Conclusion
                                                                   evidence resulting from the blood draw, it became clear that
We affirm the judgment of the trial court.                         Lyssy had only one previous DWI conviction and that the
                                                                   TCIC/NCIC report had labeled his 2004 DWI conviction as
                                                                   “driving while intoxicated 2nd.” Officer Rivas testified that,
                                                                   although he relied on the TCIC/NCIC report to conclude
KEYES, J., dissenting.                                             that Lyssy had two prior DWI convictions at the time *45
                                                                   of his arrest for the current offense, he understood “[f]rom
EVELYN V. KEYES, Justice, dissenting.
                                                                   the information [he has] now” that Lyssy did not have two
 **6 I respectfully dissent. Appellant Michael Joe Lyssy
                                                                   convictions.
pleaded nolo contendere to the misdemeanor offense of
driving while intoxicated (“DWI”) pursuant to a plea bargain
and the trial court sentenced him to 365 days in jail and
imposed a $300 fine. 1 The court suspended this sentence                                     Analysis
and imposed a twenty-four month term of community
                                                                   Lyssy argues that the blood evidence should have been
supervision. Lyssy appeals the trial court's denial of his
                                                                   suppressed because (1) the statute relied upon by the State
motion to suppress evidence of a blood draw taken the night
                                                                   to justify the blood draw, Texas Transportation Code section
of his arrest on the ground that he did not consent to the
                                                                   724.012(b), is no longer a legitimate basis for search in
warrantless blood draw upon which he was convicted and
                                                                   light of Missouri v. McNeely, ––– U.S. ––––, 133 S.Ct.
that his constitutional rights were thereby violated. I agree. I
                                                                   1552, 185 L.Ed.2d 696 (2013) and (2) the conditions for
would reverse and remand for a new trial.
                                                                   implying consent to draw blood without a warrant under
                                                                   section 724.012(b) itself were not satisfied and, therefore,
1      SeeTEX. PENAL CODE ANN. § 49.04 (West                       the blood draw violated his constitutional rights. SeeTEX.
       Supp.2011).
                                                                   TRANSP. CODE ANN. § 724.012(b)(3) (West 2011).

                                                                   The taking of a blood specimen is a search and seizure
                         Background
                                                                   under the Fourth Amendment. Schmerber v. California,
Officer G. Rivas of the League City Police Department              384 U.S. 757, 767, 86 S.Ct. 1826, 1834, 16 L.Ed.2d 908
stopped Lyssy for failing to maintain a single lane of traffic.    (1966). A warrantless search or seizure is per se unreasonable
Officer Rivas performed a field sobriety test. He also asked       unless it falls under a recognized exception to a warrant.
Lyssy to blow into a breathalyzer, but Lyssy refused. Officer      Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507,
Rivas then arrested Lyssy. Officer Rivas called League City        514, 19 L.Ed.2d 576 (1967); Walter v. State, 28 S.W.3d
dispatch and requested a report on Lyssy from two databases,       538, 541 (Tex.Crim.App.2000). One such exception is a
the Texas Crime Information Center and the National Crime          search conducted pursuant to consent. See Schneckloth v.
Information Center (“TCIC/NCIC”). The resulting report             Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043–44,
showed that Lyssy had been convicted in 2004 for the offense       36 L.Ed.2d 854 (1973). The Court of Criminal Appeals
of “driving while intoxicated 2nd.” No other DWI conviction        has stated that “[t]he implied consent law does just that
was included in the report.                                        —it implies a suspect's consent to a search in certain
                                                                   instances. This is important when there is no search warrant,
 **7 Officer Rivas testified that he understood from               since it is another method of conducting a constitutionally
dispatch's oral report that Lyssy “had ... a conviction for        valid search.” Beeman v. State, 86 S.W.3d 613, 615
DWI second conviction.” However, he also testified that he         (Tex.Crim.App.2002). The court held,
did not remember hearing anything about a driving while
                                                                               The implied consent law expands
intoxicated, first offense. Based on his understanding of the
                                                                               on the State's search capabilities by
TCIC/NCIC report, he requested a sample of Lyssy's blood
                                                                               providing a framework for drawing
without obtaining a warrant. Lyssy refused. Rivas transported
                                                                               DWI suspects' blood in the absence
him to a hospital, and one of its employees extracted a blood
                                                                               of a search warrant. It gives
specimen.



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           8
Lyssy v. State, 429 S.W.3d 37 (2014)
2014 WL 714924

              officers an additional weapon in their               49.06, or 49.065, Penal Code....”TEX. TRANSP. CODE
              investigative arsenal, enabling them                 ANN. § 724.012(b)(3)(B) (emphasis added). Section 724.013
              to draw blood in certain limited                     provides, “Except as provided by Section 724.012(b), a
              circumstances even without a search                  specimen may not be taken if a person refuses to submit to
              warrant.                                             the taking of a specimen designated by a peace officer.” Id.
                                                                   § 724.013 (West 2011).
Id. at 616.
                                                                   Here, Officer Rivas received information from a reliable
Both the United States Supreme Court and the Court of              source relating Lyssy's prior DWI history, as required by
Criminal Appeals have recognized a two-part analysis for           section 724.012(b)(3)(B)—but that dispatch report listed only
determining the legality of a blood draw: reviewing courts         one prior DWI conviction. The officer's explanation for his
must determine (1) whether the police were justified in            ordering the blood drawn—that he believed from the report
requiring the defendant to submit to a blood test and (2)          that Lyssy actually had two previous DWI convictions—does
whether the means and procedures employed in taking the            not alter the fact that the statutory conditions for implying
blood respected the relevant Fourth Amendment standards of         Lyssy's consent to the blood draw were not met. Indeed,
reasonableness. See State v. Johnston, 336 S.W.3d 649, 658         the majority's holding—that an officer's subjective belief that
(Tex.Crim.App.2011) (citing Schmerber, 384 U.S. at 768, 86         an implied consent statute has been satisfied is sufficient to
S.Ct. at 1834).                                                    imply consent—vitiates both the implied consent statute and
                                                                   the underlying constitutional concept of implied consent to a
 **8 Appellant argues that the United States Supreme Court's       warrantless search. Under the majority's reading of the statute,
recent holding in Missouri v. McNeely invalidates his blood        consent to a warrantless search is implied whenever an officer
draw. I disagree. In McNeely, the Supreme Court clarified the      believes in good faith that he has complied with the law in
meaning of “exigency” in the context of a warrantless blood        ordering a search. Neither the implied consent statute nor
draw, holding that the natural metabolization of alcohol in        the constitutional Fourth Amendment restrictions on searches
the bloodstream, without more, does not constitute exigent         and seizures would have any meaning if the beliefs of police
circumstances; rather, “exigency” must be determined case-         officers were their own warrant for the validity of a search of
by-case based on the totality of the circumstances. 133            a person or place or the seizure of a blood specimen regardless
S.Ct. at 1560, 1568. Nothing in that opinion invalidated           of the facts.
Texas's implied consent statute. In fact, in Section III
of McNeely, Justice Sotomayor, writing for a four-justice           **9 I would hold that the subjective beliefs of an officer
plurality, implicitly characterized implied consent statutes,      do not satisfy the objective requirements of the implied
including a specific reference to section 724.012(b), as           consent statute. The implied consent statute required that
collateral to the exigency concerns underlying the issue           Officer Rivas have reliable information from a credible
before the Supreme Court. Id. at 1566–67 & n. 9. Thus,             source that Lyssy had at least two prior DWI convictions,
I conclude that McNeely is inapplicable to the current             but Lyssy had only one previous conviction—Officer Rivas's
case, which involved the application of Texas's implied            misunderstanding of the report notwithstanding. The fact
 *46 consent statute, and it does not render that statute          that the report labeled Lyssy's single previous conviction as
unconstitutional.                                                  “driving while intoxicated 2nd” might make Officer Rivas's
                                                                   belief at the time he subjected Lyssy to the blood draw
Texas's implied consent statute, Transportation Code section       reasonable, but it does not alter the material facts—the report
724.012(b)(3)(B), provides that “[a] peace officer shall           listed only one previous DWI conviction, and Lyssy, in fact,
require the taking of a specimen of the person's breath or         had only one prior DWI conviction. Section 724.012(b)(3)
blood ... if the officer arrests the person for an offense under   (B), by its plain language, does not imply consent when a
Chapter 49, Penal Code, involving the operation of a motor         suspect has only one previous DWI conviction. Therefore, in
vehicle ... and the person refuses the officer's request to        the absence of a search warrant or actual consent, the blood
submit to the taking of a specimen voluntarily” if, “at the        evidence here is not admissible.
time of the arrest, the officer possesses or receives reliable
information from a credible source that the person ...on           I would hold that because the statutory conditions for
two or more occasions, has been previously convicted of ...        implying Lyssy's consent to the search were not satisfied,
an offense under Section 49.04 [the DWI statute], 49.05,


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             9
Lyssy v. State, 429 S.W.3d 37 (2014)
2014 WL 714924

the evidence of the warrantless blood draw should have been
                                                                     I would therefore sustain Lyssy's point of error.
suppressed.

“If the appellate record in a criminal case reveals
constitutional error that is subject to harmless error review,                                Conclusion
the court of appeals must reverse a judgment of conviction or
punishment unless the court determines beyond a reasonable           For the foregoing reasons, I would reverse the judgment of
doubt that the error did not contribute to the *47 conviction        the trial court and remand for a new trial.
or punishment.” TEX.R.APP. P. 44.2. I cannot conclude
beyond a reasonable doubt that the results of a warrantless
                                                                     Parallel Citations
blood test taken without consent—actual or implied—and
showing a blood alcohol level that supported a conviction for        2014 WL 714924 (Tex.App.-Hous. (1 Dist.))
DWI did not contribute to Lyssy's conviction.

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




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              10
Kay v. State, Not Reported in S.W.3d (2014)
2014 WL 3697917

                                                                    A jury found Kay guilty and sentenced him to 19 years'
                                                                    confinement in prison. In two issues, Kay (1) challenges
     KeyCite Yellow Flag - Negative Treatment                       the constitutionality of section 724.012 of the Texas
Declined to Follow by   Leal v. State, Tex.App.-Hous. (14 Dist.),
                                                                    Transportation Code, which requires a law enforcement
 November 13, 2014
                                                                    officer to take a blood sample from a suspect arrested for
                  2014 WL 3697917                                   driving while intoxicated when the suspect has refused to
    Only the Westlaw citation is currently available.               submit to the blood draw voluntarily and the officer has
                                                                    reliable information from a credible source that the suspect
          SEE TX R RAP RULE 47.2 FOR                                has two prior convictions for driving while intoxicated, and
    DESIGNATION AND SIGNING OF OPINIONS.                            (2) argues that he was denied effective assistance of counsel.
                                                                    We affirm.
          MEMORANDUM OPINION
     Do Not Publish. TEX. R. APP. P. 47.2(b).
             Court of Appeals of Texas,
               Houston (1st Dist.).                                                         Background

               Milton Wayne KAY, Appellant                          On June 3, 2012, Officer P. McDonald 1 of the Orange
                            v.                                      Police Department stopped Kay for not wearing his seatbelt
               The STATE of Texas, Appellee.                        and for having an expired vehicle registration sticker. While
                                                                    conducting the traffic stop, Officer McDonald smelled
        No. 01–13–00595–CR.              |    July 24, 2014.        alcohol and observed Kay slurring his speech. Officer
                                                                    McDonald conducted field sobriety tests, and indicated that
On Appeal from the 260th District Court, Orange County,
                                                                    Kay was intoxicated, and then placed Kay under arrest and
Texas, Trial Court Case No. D–120519–R.
                                                                    transported him to the Orange County Jail.
Attorneys and Law Firms
                                                                    1      Officer McDonald testified at the hearing on Kay's
Charles Sexton, for Milton Wayne Kay.                                      motion to suppress and at trial.

Cory Andrew Kneeland, for The State of Texas.                       At the jail, Kay refused to submit to a blood draw voluntarily.
                                                                    However, when Officer McDonald had earlier placed Kay in
Panel consists of Chief Justice RADACK and Justices                 custody, dispatch had provided Kay's criminal history report
MASSENGALE and HUDDLE.                                              to Officer McDonald. The report showed that Kay had two
                                                                    prior DWI convictions. Relying on section 724.012(b) of the
                                                                    Transportation Code, Officer McDonald directed a nurse at
                MEMORANDUM OPINION                                  the jail to perform a warrantless blood draw on Kay. The
                                                                    results indicated that Kay had a blood alcohol concentration
REBECA HUDDLE, Justice.                                             of .24 grams of ethanol per 100 milliliters of blood, which
                                                                    was three times the legal limit.
 *1 Appellant Milton Wayne Kay was charged by indictment
for felony driving while intoxicated (“DWI”).SeeTEX.
                                                                    Kay moved to suppress the blood alcohol test's results because
PENAL CODE ANN. § 49.04 (West Supp.2013). The
                                                                    the blood was taken without his consent and without a
indictment further alleged an enhancement for two prior
                                                                    warrant. At the hearing on Kay's motion to suppress, Officer
driving while intoxicated convictions, in 1989 and 2000. Kay
                                                                    McDonald testified that he ordered the blood draw because
moved to quash the indictment, arguing that his prior DWI
                                                                    he had a good faith belief that Kay had two previous DWI
convictions could not be used to enhance his DWI charge
                                                                    convictions. The basis for his belief was Kay's criminal
to a felony because they were over ten years old, and the
                                                                    history report, given to him by dispatch, which indicated Kay
trial court denied his motion. Kay also moved to suppress the
                                                                    had two prior DWI convictions. The trial court denied the
warrantless blood draw and video recording, both of which
                                                                    motion, explaining: “[B]ased upon the fact that the statute in
were taken on the night of his arrest, and the trial court denied
                                                                    the state of Texas does allow for the non-warrant blood draw
his motion.
                                                                    if ... the defendant has two prior convictions for DWI, which



                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            1
Kay v. State, Not Reported in S.W.3d (2014)
2014 WL 3697917

has been admitted and stipulated here, the Court is going to        and the person refuses the officer's request to submit to the
deny the Motion to Suppress as to the blood draw without            taking of a specimen voluntarily” if, “at the time of the arrest,
a warrant.”It later denied Kay's motion for new trial, which        the officer possesses or receives reliable information from a
raised the same issue, along with two issues regarding jury         credible source that the person ... on two or more occasions,
instructions.                                                       has been previously convicted of ... an offense under Section
                                                                    49.04, 49.05, 49.06, or 49.065, Penal Code.”TEX. TRANSP.
 *2 After Kay filed his notice of appeal, his trial counsel         CODE ANN. § 724.012(b)(3)(B). Driving while intoxicated
moved to withdraw. The appeal was abated and the trial court        is an offense under section 49.04 of the Penal Code. SeeTEX.
held a hearing at which it granted the request to withdraw and      PENAL CODE ANN. § 49.04. When a person is arrested
appointed new appellate counsel. During the same hearing,           under the circumstances described in section 724.012(b), that
the trial court also heard testimony from Kay and his trial         person's refusal to submit to the taking of the specimen does
counsel regarding Kay's contention that trial counsel rendered      not suspend the officer's statutory duty to take it. Id. § 724.013
ineffective assistance by failing to convey a plea offer to Kay.    (West 2011).


                                                                    B. Analysis
           Transportation Code Section 724.012                      Relying on McNeely, Kay contends that section 724.012
                                                                    violates the Fourth Amendment. But Kay did not challenge
Citing Missouri v. McNeely, 133 S.Ct. 1552 (2013), Kay
                                                                    the constitutionality of section 724.012 in the trial court.
contends that section 724.012 of the Texas Transportation
                                                                    Rather, Kay's argument in his motion to suppress and at
Code is unconstitutional because it “impermissibly narrows
                                                                    the hearing on that motion was that (1) the blood draw was
[Kay's] Constitutionally guaranteed right to be free from
                                                                    warrantless and taken over his refusal to voluntarily provide
unreasonable searches of his person and seizure of his bodily
                                                                    a blood sample and (2) Kay's two prior convictions were
fluids without a warrant and without any showing of exigent
                                                                    too remote in time to serve as the two prior convictions
circumstances.”
                                                                    required by section 724.012(b). At no point did Kay attack
                                                                    the constitutionality of section 724.012(b).
A. Applicable Law
The taking of a blood specimen is a search and seizure               *3 At the hearing on Kay's motion to suppress, Kay's
under the Fourth Amendment. Schmerber v. California, 384            counsel focused on the fact that Kay “did not agree for his
U.S. 757, 767, 86 S.Ct. 1826, 1834 (1966). A warrantless            blood to be taken,” and that the State had the burden to show
search or seizure is per se unreasonable, unless it falls under     there were circumstances present that allowed the State to
a recognized exception to the warrant requirement. Katz v.          take a warrantless blood draw. 2 Counsel argued that
United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514 (1967);
Walter v. State, 28 S.W.3d 538, 541 (Tex.Crim.App.2000).            2        The State agreed it had the burden and would lay the
One such exception is a search conducted pursuant to                         foundation at trial to prove that Kay had two prior
consent. See Schneckloth v. Bustamonte, 412 U.S. 218,                        convictions which allowed for the warrantless blood
219, 93 S.Ct. 2041, 2043–44 (1973). Likewise, implied                        draw.
consent law “implies a suspect's consent to a search in
certain instances. This is important when there is no                   there may be exceptions where you don't have to get a
search warrant, since it is another method of conducting a              warrant under [McNeely ]; but the State does have the
constitutionally valid search.”Beeman v. State, 86 S.W.3d               burden of proof to carry that issue ... [to show] what
613, 615 (Tex.Crim.App.2002).                                           circumstances they don't have to get a warrant, and we have
                                                                        agreed on the record no warrant was issued in this case ...
Section 724.012(b)(3)(B) of the Texas Transportation Code               Kay did not agree for his blood to be taken....
provides implied consent to draw blood without a warrant in             Counsel also argued that Kay's two prior DWI convictions
limited circumstance. It states: “[a] peace officer shall require       could not satisfy the statute because they were each more
the taking of a specimen of the person's breath or blood ...            than ten years old. Counsel did not argue that section
if the officer arrests the person for an offense under Chapter          724.012, the implied-consent statute, is unconstitutional
49, Penal Code, involving the operation of a motor vehicle ...
                                                                        under McNeely or otherwise. 3



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                 2
Kay v. State, Not Reported in S.W.3d (2014)
2014 WL 3697917

3      For its part, he State argued at the hearing that McNeely   not be used to support a different legal theory on appeal,”
       “specifically seems to endorse” the constitutionality of    even when asserting a constitutional challenge). Accordingly,
       the implied-consent statute.                                we hold that Kay's challenge to the constitutionality of
                                                                   section 724.012(b) was not preserved for our review.
Kay's written motion to suppress likewise did not challenge
                                                                   SeeTEX.R.APP. P. 33.1; see also Lyssy v. State, 429 S.W.3d
the constitutionality of blood draws taken under the authority
                                                                   37, 41 (Tex.App.-Houston [1st Dist.] 2014, no pet.)(holding
of section 724.012(b). Although Kay complained in his
                                                                   that appellant waived his constitutional challenge to section
motion to suppress that the warrantless taking of his blood
                                                                   724.012(b) where “[t]he context of the motion to suppress,
violated the United States and Texas Constitutions, he did so
                                                                   as it developed at the hearing, demonstrates that [appellant's]
only generally:
                                                                   challenge was based solely on a failure to observe the
            [E]vidence in this case has been                       statute's terms, not an attack on the constitutionality of what
            illegally obtained ...in violation of the              it authorizes.”).
            United States Constitution, the Texas
            Constitution, and Texas Statutory                      *4 We overrule Kay's first issue.
            Laws ... [T]he blood specimen was
            extracted from [Kay] without his
            permission and without a search                                     Ineffective Assistance of Counsel
            warrant.Generally, tak[ing] of a blood
            sample is a search and seizure within                  In his second issue, Kay contends that his trial counsel
            the meaning of the Fourth Amendment                    rendered ineffective assistance by failing to inform Kay
            to the United States Constitution ...                  of a plea offer. Kay contends this warrants reversal and
            Article I, section 9 of the Texas                      reinstatement of the State's plea offer.
            Constitution requires that a search
            warrant be issued ... In addition,
            Article 38.23 of the Texas Code                        A. Standard of Review and Applicable Law
            of Criminal Procedure forbids any                      Both the federal and state constitutions guarantee an accused
            evidence obtained in violation of                      the right to have the assistance of counsel. SeeU.S. CONST.
            the law to be admitted against an                      amend. VI; TEX. CONST. art. I, § 10; TEX.CODE CRIM.
            accused....                                            PROC. ANN. art. 1.051 (West Supp.2013). The right to
                                                                   counsel includes the right to reasonably effective assistance
(Emphasis added). (Citations omitted).                             of counsel. See Strickland v. Washington, 466 U.S. 668, 686,
                                                                   104 S.Ct. 2052, 2063 (1984); Ex parte Gonzales, 945 S.W.2d
Considered in context, we conclude that Kay's complaint            830, 835 (Tex.Crim.App.1997). Both state and federal claims
to the trial court was not sufficient to inform the trial          of ineffective assistance of counsel are evaluated under the
court that Kay challenged the constitutionality of section         two prong analysis of Strickland. Thompson v. State, 9
724.012(b).See Resendez v. State, 306 S.W.3d 308, 314              S.W.3d 808, 812 (Tex.Crim.App.1999).
(Tex.Crim.App.2009) (holding that “[o]nly when there are
clear contextual clues indicating that the party was, in           The first prong requires the appellant to demonstrate that
fact, making a particular argument will that argument be           counsel's performance was deficient, meaning that counsel
preserved”). The record demonstrates that Kay's motion to          made errors so serious that he was not functioning as the
suppress, as it was developed at the hearing, was based solely     “counsel” guaranteed by the Sixth Amendment.Strickland,
on the fact that the blood was drawn over his objection and        466 U.S. at 687, 104 S.Ct. at 2064. The second prong requires
without a warrant. Kay's counsel seemingly ignored section         the appellant to show that counsel's deficient performance
724.012 at the hearing; thus, even considering context,            prejudiced the defense. Strickland, 466 U.S. at 687, 104
nothing in the record suggests that Kay alerted the trial          S.Ct. at 2064. To establish prejudice, the appellant must
court that he sought to challenge the constitutionality of the     prove there is a reasonable probability that but for counsel's
implied-consent statute authorizing Kay's blood draw. See          deficient performance, the result of the proceeding would
Broxton v. State, 909 S.W.2d 912, 918 (Tex.Crim.App.1995)          have been different. Jackson v. State, 973 S.W.2d 954,
(holding that an “objection stating one legal theory may           956 (Tex.Crim.App.1998). Unless an appellant can prove



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             3
Kay v. State, Not Reported in S.W.3d (2014)
2014 WL 3697917

both prongs, an appellate court must not find counsel's             since been informed that there may have been a plea offer at
representation to be ineffective. Strickland, 466 U.S. at 687,      some point. 4
104 S.Ct. at 2064.
                                                                    4      There is a supplemental reporter's record of a “hearing to
There is a strong presumption that counsel's conduct fell
                                                                           present additional evidence,” which the trial court held
within the wide range of reasonable professional assistance.
                                                                           after Kay was appointed new appellate counsel.
Thompson, 9 S.W.3d at 813; Jackson v. State, 877 S.W.2d
768, 771 (Tex.Crim .App.1994). On direct appeal, a                  The trial court did not have authority to hold an evidentiary
reviewing court will rarely be able to fairly evaluate the merits   hearing regarding Kay's ineffective assistance claim because
of an ineffective-assistance claim because the record on direct     our order of abatement did not provide for such a hearing.
appeal is usually undeveloped and inadequately reflective           SeeTEX.R.APP. P. 25.2(g) (“Once the record has been filed
of the reasons for defense counsel's actions at trial. Mata         in the appellate court, all further proceedings in the trial
v. State, 226 S.W.3d 425, 430 (Tex.Crim.App.2007). The              court—except as provided otherwise by law or by these
lack of a clear record usually will prevent the appellant from      rules—will be suspended until the trial court receives the
meeting the first prong of Strickland, as the reasonableness        appellate-court mandate.”). Even when an appeal is abated,
of counsel's choices and actions during trial can be proven         “[a] trial court is not authorized to conduct an evidentiary
deficient only through facts that do not normally appear            hearing to develop a record of new testimony and other
in the appellate record. Id. In order for an appellate court        evidence that was not presented at trial, or developed on
to find on direct appeal that counsel was ineffective,              motion for new trial.”Lewis v. State, 711 S.W .2d 41, 43–
counsel's deficiency must be affirmatively demonstrated             44 (Tex.Crim.App.1986) (emphasis in original) (holding
in the trial record. Lopez v. State, 343 S.W.3d 137, 142            that trial court “exceeded her authority under the mandate
(Tex.Crim.App.2011). When the record is silent as to                of abatement” by holding evidentiary hearing to develop
counsel's reasons for his conduct, finding counsel ineffective      evidence on ineffective assistance claim because appellant
would call for speculation by the appellate court. Stults v.        failed to present such evidence at trial or in motion for new
State, 23 S.W.3d 198, 208 (Tex.App.-Houston [14th Dist.]            trial). Accordingly, we do not consider the testimony from
2000, pet. ref'd). An appellate court will not speculate about      the evidentiary hearing that was held while the case was
the reasons underlying defense counsel's decisions to find          abated. Disregarding the evidence adduced at that hearing,
counsel ineffective. Id.;Jackson, 877 S.W.2d at 771.                the record does not affirmatively show that any plea offer
                                                                    actually was extended by the State or that Kay's trial counsel
                                                                    failed to convey an offer to him. See Lopez, 343 S.W.3d at
B. Analysis                                                         142 (stating that the record must affirmatively demonstrate
 *5 Kay filed a motion for new trial, but it did not raise          the alleged ineffectiveness to find ineffective counsel). Thus,
an ineffective assistance claim. On appeal, he contends that        we cannot conclude that Kay has established that his trial
the State offered a plea bargain of seven years in prison           counsel's representation fell below an objective standard of
and that his trial counsel failed to communicate that offer         reasonableness. See Jenkins v. State, No. 01–03–00185–CR,
to Kay. Kay further contends that his trial counsel failed          2004 WL 1233996, at *7 (Tex.App.-Houston [1st Dist.] June
to intelligently assess and communicate the offer because           3, 2004, no pet.)(mem. op., not designated for publication)
counsel misunderstood the law. Specifically, Kay argues that        (holding appellant failed to show his counsel's performance
his trial counsel erroneously believed that the State was           was deficient because there was no record that appellant's
prohibited from using Kay's two prior DWI convictions as            counsel failed to inform him of plea offer or that State ever
predicates for a felony DWI charge because they were more           proposed plea bargain). Accordingly, we hold that Kay failed
than ten years old.                                                 to meet the first prong of Strickland.

We abated this appeal and ordered the trial court to hold a         *6 We overrule Kay's second issue.
hearing on Kay's trial counsel's motion to withdraw. On the
same day that the trial court held a hearing on and granted the
motion to withdraw, it heard testimony from Kay to the effect
                                                                                              Conclusion
that no plea offer was communicated to him but that he had
                                                                    We affirm the trial court's judgment.



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                     4
Kay v. State, Not Reported in S.W.3d (2014)
2014 WL 3697917




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




              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                    5
