                            NUMBER 13-11-00694-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG

WILLIAM SMITH A/K/A
BILL SMITH,                                                               Appellant,

                                          v.

THE STATE OF TEXAS,                                                       Appellee.


                    On appeal from the 94th District Court
                         of Nueces County, Texas.


                            ABATEMENT ORDER
               Before Justices Garza, Benavides, and Perkes
                             Order Per Curiam

      This appeal has been briefed and was submitted to the Court at oral argument on

February 7, 2013. The Court further granted leave for appellant to supplement his brief

based on the April 17, 2013 decision by the United States Supreme Court in Missouri v.

McNeely that the natural metabolization of alcohol in the bloodstream does not present a
per se exigency that justifies an exception to the Fourth Amendment’s warrant

requirement for nonconsensual blood testing in all drunk-driving cases, and that exigency

in this context must be determined on a case-by-case basis on the totality of the

circumstances. See Missouri v. McNeely, 133 S. Ct. 1552, 1556, 185 L.Ed.2d 696, 2013

U.S. LEXIS 3160 (2013). This cause is once again before the Court due to the January

13, 2014 decision by the United States Supreme Court to grant the petition for writ of

certiorari and vacate the judgment in Aviles v. State, 385 S.W.3d 110, 115 (Tex.

App.—San Antonio, pet. ref'd), for further consideration in light of Missouri v. McNeely.

See Aviles v. Tex., No. 13-6353, 2014 WL 102362 (U.S. Jan. 13, 2014).

      Texas Rule of Appellate Procedure 38.7 provides that “[a] brief may be amended

or supplemented whenever justice requires, on whatever reasonable terms the court may

prescribe.” TEX. R. APP. P. 38.7. Given the dimension of the constitutional issue raised

in this case and the intervening changes in the legal landscape since this case was

submitted to the Court, the Court has determined that additional briefing is necessary for

the proper submission of this cause.            Accordingly, the Court hereby requests

supplemental briefing from the parties regarding: (1) whether the Texas Department of

Public Safety Trooper’s David Anguiano’s seizure of appellant’s blood under Texas

Transportation Code section 724.012(b)(3), Texas’s mandatory blood draw statute, was

constitutional as applied under the Fourth Amendment as interpreted by McNeely v.

Missouri; (2) how, if at all, this case is distinguishable from Aviles v. State, 385 S.W.3d

110 (Tex. App.—San Antonio 2012, pet. ref’d), and (3) the impact, if any, of the United




                                            2
States Supreme Court’s action in granting certiorari and vacating Aviles v. State on this

case.

        Appellant’s supplemental brief shall be filed within twenty-one days from the date

of this order, and appellee’s supplemental brief, if any, shall be filed within fourteen days

thereafter. This appeal is ABATED and removed from the Court’s active docket until

receipt of the requested briefing.

        IT IS SO ORDERED.



                                                  PER CURIAM



Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
13th day of February, 2014.




                                             3
