                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-15-00052-CR


EX PARTE
SARAH ELIZABETH WESTFALL


                                   ----------

     FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY
             TRIAL COURT NO. C-3-010301-1250231-AP

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                         MEMORANDUM OPINION 1

                                   ----------

      Appellant Sarah Elizabeth Westfall appeals from the denial of habeas

corpus relief. For the reasons stated below, we affirm the trial court’s order

denying habeas relief.

      Appellant entered an open plea of guilty to and was convicted of felony

driving while intoxicated (DWI). Her appeal was dismissed on her own motion. 2

      1
       See Tex. R. App. P. 47.4.
      2
       See Westfall v. State, No. 02-12-00571-CR, 2013 WL 3247286 (Tex.
App.—Fort Worth June 27, 2013, no pet.) (mem. op., not designated for
publication).
When she filed her application for writ of habeas corpus, she was on community

supervision, serving a ten-year term for felony DWI, probated for six years.

      Appellant sought habeas corpus relief in light of Missouri v. McNeely 3 on

the ground that her guilty plea was involuntary because when she entered it, she

was unaware that the blood test results were inadmissible since her blood had

been drawn involuntarily and without a warrant.        She stated in the affidavit

accompanying her application that, had she known the blood results were not

admissible, she would not have pled guilty because she did not really think she

was guilty. Appellant, who was represented by counsel in the DWI case, did not

file a motion to suppress, nor did she attack the constitutionality of the blood draw

in any way before she pled guilty. She also did not explain in her application why

she could not have raised the constitutionality issue before she pled guilty. She

merely stated in her affidavit that her plea was involuntary because she would

have gone to trial rather than pleading guilty but for the blood test results showing

that her blood alcohol level was above .08.

      Appellant’s brief complaining of her conviction and sentence was due in

the Second Court of Appeals on May 28, 2013. McNeely, holding that results of

a blood test after an involuntary, warrantless blood-draw are inadmissible, was

decided on April 17, 2013, over one month before Appellant’s brief was due. 4



      3
       133 S. Ct. 1552 (2013).
      4
       Id. at 1563, 1568.


                                         2
Instead of raising the issue on direct appeal,5 Appellant asked that her appeal be

dismissed, and it was dismissed on June 27, 2013.6

      The trial court adopted the findings and conclusions proposed by the State,

holding in part,


      26.    Because the law was not well settled that a warrantless blood
             draw taken pursuant to the implied consent statute did not
             violate the Fourth Amendment, Applicant was required to file a
             motion to suppress or object in the trial court to preserve the
             issue for appellate review.

      27.    “(A) defendant has not waived his right to assert a
             constitutional violation by failing to object at trial if at the time of
             his trial the right had not been recognized.” Mathews v. State,
             768 S.W.2d 731, 733 (Tex. Crim. App. 1989) (quoting Ex parte
             Chambers, 688 S.W.2d 483[, 486] (Tex. Crim. App. 1984)
             (Campbell, J., concurring))[, cert. denied, 474 U.S. 864
             (1985)].

      28.    McNeely held that . . . ‘‘the natural dissipation of alcohol in the
             bloodstream does not constitute an exigency in every case
             sufficient to justify conducting a blood test without a
             warrant.” . . .

      29.    The constitutional right at hand is a Fourth Amendment right to
             be free from warrantless searches. See, e.g., Brimage v.
             State, 918 S.W.2d 466, 500 (Tex. Crim. App. 1994)[, cert.
             denied, 519 U.S. 838 (1996)].

      30.    McNeely does not create a new constitutional right. . . .

      31.    The constitutional right discussed in McNeely was recognized
             at the time of Applicant’s plea.



      5
        See Cooper v. State, 45 S.W.3d 77, 81 (Tex. Crim. App. 2001) (noting
implicitly that voluntariness of open plea of guilty may be challenged on appeal).
      6
       See Westfall, 2013 WL 3247286, at *1.


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      32.   When the constitutional claim is “sufficiently ‘novel’” the
            contemporaneous objection requirement does not apply.
            Mathews[, 768 S.W.2d at 733].

      33.   Whether the blood draw, taken without a warrant, was proper
            under the applicable statute was discussed in Aviles v. State in
            2012. See Application, p. 3–4; Aviles v. State, 385 S.W.3d
            110, 116 (Tex. App.—San Antonio 2012)[(Aviles I), vacated,
            134 S. Ct. 902 (2014)].

      34.   The issue is not “sufficiently ‘novel’” because it has been
            raised before McNeely was decided. See Application, p. 3–4;
            Aviles [I], 385 S.W.3d [at] 116 . . . .

      35.   Applicant could have filed a motion to suppress raising this
            issue before her plea of guilty.

      36.   The contemporaneous rule applies to Applicant’s claim.

      37.   McNeely claims are not preserved for appellate review if no
            motion to suppress the involuntary and warrantless blood draw
            was filed and ruled on in the trial court. See, e.g., Sneed v.
            State, No. 10-13-00372-CR, 2014 WL 4792655 (Tex. App.—
            Waco Sept. 25, 2014, no pet.[]) (not designated for
            publication).

      38.   Failure to raise a Fourth Amendment violation “on direct
            appeal is tantamount to an abandonment of that
            complaint.” . . .

      38.   Because Applicant did not raise that her blood was drawn in
            violation of her Fourth Amendment on direct appeal, even
            though McNeely had been rendered before her brief was due,
            she has abandoned the complaint for review.

      39.   Applicant’s claim that her plea was involuntary due to an
            unconstitutional blood draw is FORFEITED.

      “[B]oth federal and Texas courts have confined the scope of post-conviction

writs of habeas corpus to jurisdictional or fundamental defects and constitutional

claims.” 7 Appellant filed her application for writ of habeas corpus pursuant to

      7
       Ex parte Graves, 70 S.W.3d 103, 109 (Tex. Crim. App. 2002).

                                        4
Article 11.072 of the Texas Code of Criminal Procedure,8 arguing a violation of

due process under the United States Constitution. Accordingly, we consider the

availability of writ relief under both the Texas statutory scheme and federal

constitutional law.

      We review the trial court’s denial of habeas relief under an abuse of

discretion standard, and we view the facts in the light most favorable to the trial

court’s ruling. 9 If the outcome of the ultimate question turns upon an application

of legal standards, we review the trial court’s determination de novo.10       The

burden of proof is on the applicant.11 An applicant must prove her allegations by

a preponderance of the evidence.12 In addition, an applicant’s sworn allegations

alone are not sufficient to prove her claims. 13

      “Habeas corpus is an extraordinary remedy and is available only when

there is no other adequate remedy at law.” 14      Article 11.072 establishes the


      8
       Tex. Code Crim. Proc. Ann. art. 11.072 (West 2015).
      9
       Ex parte Wheeler, 203 S.W.3d 317, 324 (Tex. Crim. App. 2006).
      10
          Ex parte Martin, 6 S.W.3d 524, 526 (Tex. Crim. App. 1999).
      11
       Parrish v. State, 38 S.W.3d 831, 834 (Tex. App.—Houston [14th Dist.]
2001, pet. ref’d); see also Ex parte Rains, 555 S.W.2d 478, 481 (Tex. Crim. App.
1977).
      12
       Ex parte Cummins, 169 S.W.3d 752, 757–58 (Tex. App.—Fort Worth
2005, no pet.).
      13
          Ex parte Empey, 757 S.W.2d 771, 775 (Tex. Crim. App. 1988).
      14
          Ex parte Cruzata, 220 S.W.3d 518, 520 (Tex. Crim. App. 2007).


                                           5
procedures for an applicant in Appellant’s situation to seek habeas corpus relief

“from an order or a judgment of conviction ordering community supervision.”15

The statute expressly provides that writ relief is not available “if the applicant

could obtain the requested relief by means of an appeal under Article 44.02 and

Rule 25.2, Texas Rules of Appellate Procedure.”16

      In its response to Appellant’s application, the State relied in part on Garza

v. State:

      It has become a staple in our habeas corpus jurisprudence that
      preservation of error is generally a prerequisite to being granted
      relief. . . .

            Like the result of forfeiture by inaction in the trial court, this
      Court will not review the merits of a habeas corpus claim if an
      applicant had the opportunity to raise the issue on appeal. We have
      held that even constitutional claims are forfeited if an applicant had
      the opportunity to raise the issue on appeal. This principle stemmed
      from the oft-quoted axiom “The Great Writ should not be used in
      matters that should have been raised on appeal.” And “the trend of
      this Court has been to draw stricter boundaries regarding what
      claims may be advanced on habeas.”17

      Appellant argued that because the Supreme Court did not hand down

McNeely until after she had entered her plea, she could not have raised the issue

in the trial court before her plea. She further argued that she should be allowed to

withdraw her involuntary plea, that her conviction should be set aside, and that


      15
        Tex. Code Crim. Proc. Ann. art. 11.072, § 1.
      16
        Id. § 3(a).
      17
        435 S.W.3d 258, 261–62 (Tex. Crim. App. 2014) (emphasis added)
(footnotes omitted).


                                         6
she should be afforded her right to trial on the instant offense. She contended

that she could not obtain the requested relief by means of an appeal under Article

44.02 of the Texas Code of Criminal Procedure or Rule 25.2 of the Texas Rules

of Appellate Procedure. This contention is incorrect. 18

      We hold, based on the record before us, that Appellant has forfeited her

complaint. It is undisputed that the blood alcohol testing was the product of a

warrantless blood draw. Even if her failure to raise any complaint regarding the

blood draw before she entered her plea was justified on the ground that when the

issue was raised in Aviles, the intermediate appellate court ruled that the

warrantless blood draw was admissible, Appellant has not adequately explained

why she did not raise the issue on appeal after the Supreme Court of the United

States rendered its decision in McNeely, instead of abandoning her appeal by

seeking and obtaining a voluntary dismissal.               We view this action as

abandonment of her McNeely complaint.19

      Consequently, we hold that the trial court did not abuse its discretion in

denying relief. We affirm the trial court’s order denying relief.




      18
        See Cooper, 45 S.W.3d at 81.
      19
        See Ex parte Kirby, 492 S.W.2d 579, 581 (Tex. Crim. App. 1973).


                                           7
                                        /s/ Lee Ann Dauphinot
                                        LEE ANN DAUPHINOT
                                        JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: May 14, 2015




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