                                                                                 PD-0828-15
                                                                COURT OF CRIMINAL APPEALS
                                                                                AUSTIN, TEXAS
                                                                Transmitted 7/3/2015 9:49:11 AM
                                                                  Accepted 7/7/2015 2:23:11 PM
                                                                                 ABEL ACOSTA
                                                                                         CLERK
                             PD-0828-15
                        No. _________________


                 IN THE COURT OF CRIMINAL APPEALS
                             OF TEXAS


                       THE STATE OF TEXAS,
                           PETITIONER,
                                  V.
                       JAVIER RODRIGUEZ,
                          RESPONDENT.


      PETITION IN CAUSE NO. 11-CR-3843-G, FROM THE
    319TH DISTRICT COURT OF NUECES COUNTY, TEXAS,
           AND CAUSE NO. 13-13-00335-CR, IN THE
COURT OF APPEALS FOR THE THIRTEENTH DISTRICT OF TEXAS.


   PETITION FOR DISCRETIONARY REVIEW

                             Douglas K. Norman
                             State Bar No. 15078900
                             Assistant District Attorney
                             105th Judicial District of Texas
                             901 Leopard, Room 206
                             Corpus Christi, Texas 78401
                             (361) 888-0410
                             (361) 888-0399 (fax)
                             douglas.norman@nuecesco.com
                             Attorney for Petitioner


  July 7, 2015
          IDENTITY OF JUDGE, PARTIES AND COUNSEL

Trial Judge:
       Hon. Thomas F. Greenwell
       Judge, 319th District Court
       901 Leopard St., Corpus Christi, TX 78401

State’s Trial and Appellate Attorneys:
       Douglas K. Norman
       State Bar No. 15078900
       Clarissa Fernandez
       State Bar No. 24068964
       Assistant District Attorneys
       901 Leopard, Room 206
       Corpus Christi, Texas 78401
       (361) 888-0410
Appellee:
     Javier Rodriguez

Appellee’s Trial Attorneys
     Hector Gonzalez
     State Bar No. 08127100
     Eric Perkins
     State Bar No. 15785060
     2818 S. Port Ave., Corpus Christi, TX 78405

Appellee’s Appellate Attorney:
     Mr. Donald B. Edwards
     State Bar No. 06469050
     P.O. Box 3302, Corpus Christi, Texas 78463
     (361) 887-7007
     mxlplk@swbell.net




                                         i
                                      TABLE OF CONTENTS

IDENTITY OF JUDGE, PARTIES AND COUNSEL ............................... i

INDEX OF AUTHORITIES ....................................................................... iv
STATEMENT REGARDING ORAL ARGUMENT ................................ 1
STATEMENT OF THE CASE .................................................................... 2
STATEMENT OF PROCEDURAL HISTORY ........................................ 2
QUESTIONS PRESENTED FOR REVIEW ............................................. 2

ARGUMENT ................................................................................................. 3
I. Whether the implied consent and mandatory blood draw provisions
of the Texas Transportation Code are a constitutionally valid
alternative to the warrant requirement. ..................................................... 3

II. Whether a suspect’s failure to explicitly refuse a request to submit to
a blood draw prevents the arresting officer from proceeding under
Section 724.012 to obtain a blood sample pursuant to statutorily implied
consent? .......................................................................................................... 4

III. Whether, in order to show exigent circumstances, an investigating
officer must anticipate that he will obtain probable cause for a blood
warrant prior to obtaining all of the facts necessary to obtain such a
warrant; or whether exigent circumstances is determined as of the time
the facts known to the officer mature into probable cause for the blood
warrant? ......................................................................................................... 7

IV. Whether the Thirteenth Court of Appeals erred in considering the
subjective belief of the arresting officer that he did not need a warrant,
in its determination as to whether exigent circumstances justified the
officer in obtaining a blood sample without a warrant? ......................... 11




                                                         ii
V. Alternatively, to the extent that fact questions were raised at the
suppression hearing dependent upon the trial court’s belief in the
credibility of the witnesses and evidence, the Thirteenth Court of
Appeals erred in refusing to remand to the trial court for findings of
fact and conclusions of law. ........................................................................ 12
PRAYER FOR RELIEF............................................................................. 15
RULE 9.4 (i) CERTIFICATION ............................................................... 16
CERTIFICATE OF SERVICE ................................................................. 16
APPENDICES:
1. Thirteenth Court of Appeals Opinion.
2. Electronic Docket Sheet.
3. Order Denying Motion to Reconsider.




                                                  iii
                                 INDEX OF AUTHORITIES
                                             CASE LAW

Brigham City, Utah v. Stuart, 547 U.S. 398, 126 S. Ct. 1943 (2006). ......... 12

Brimage v. State, 918 S.W.2d 466 (Tex. Crim. App. 1994). ........................ 11

Colburn v. State, 966 S.W.2d 511 (Tex. Crim. App. 1998). ........................ 11

State v. Cullen, 195 S.W.3d 696 (Tex. Crim. App. 2006) ...................... 13, 14

Garcia v. State, 15 S.W.3d 533 (Tex. Crim. App. 2000). ............................ 12

Kentucky v. King, 131 S. Ct. 1849 (2011). ............................................... 8, 12

Missouri v. McNeely, 133 S. Ct. 1552 (2013)............................................... 10

Torres v. State, 182 S.W.3d 899 (Tex. Crim. App. 2005). ............................. 9

              STATUTES, RULES AND OTHER AUTHORITIES
Tex. Transp. Code § 724.011. ......................................................................... 4

Tex. Transp. Code § 724.012. ......................................................................... 5

Tex. Transp. Code § 724.013. ......................................................................... 5

Tex. R. App. P. 44.4. ..................................................................................... 14

Tex. R. App. P. 66.3. ....................................................................................... 4




                                                      iv
                            PD-0828-15
                   No. ___________________________

THE STATE OF TEXAS,             | IN THE
Petitioner,                     |
                                |
v.                              | COURT OF CRIMINAL APPEALS
                                |
JAVIER RODRIGUEZ,               |
Respondent.                     | OF TEXAS

          STATE’S PETITION FOR DISCRETIONARY REVIEW

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

      Comes now the State of Texas, by and through the District Attorney

for the 105th Judicial District of Texas, and respectfully urges this Court to

grant discretionary review of the above named cause for the reasons that

follow:

           STATEMENT REGARDING ORAL ARGUMENT
      The State believes that oral argument would be helpful to the

determination of the present appeal because, in addition to the issue already

under consideration before this Court in the Villarreal case cited herein, the

State raises an unresolved question concerning the interpretation of the

implied consent/mandatory draw statute, and other questions concerning the

duty of police to anticipate the need for a warrant before obtaining probable

cause, and the objective nature of the determination of exigent

circumstances.



                                      1
                        STATEMENT OF THE CASE

      Javier Rodriguez was indicted for three counts of intoxication assault

arising out of the same incident. (Clerk’s Record p. 5) He filed a motion to

suppress a blood test showing the level of his intoxication (Clerk’s Record p.

393), which the trial court granted by a written order signed on May 28,

2013. (Clerk’s Record p. 402) The present petition arises out of a State’s

Appeal from that order, which the State perfected by timely filed notice of

appeal on June 6, 2013. (Clerk’s Record p. 405)

             STATEMENT OF PROCEDURAL HISTORY

      A panel of the Thirteenth Court of Appeals issued an unpublished

memorandum opinion on June 18, 2015, affirming the trial court’s order

granting the motion to suppress. (See Appendix 1) The State has not filed a

motion for rehearing.

               QUESTIONS PRESENTED FOR REVIEW
I. Whether the implied consent and mandatory blood draw provisions
of the Texas Transportation Code are a constitutionally valid
alternative to the warrant requirement.

II. Whether a suspect’s failure to explicitly refuse a request to submit to
a blood draw prevents the arresting officer from proceeding under
Section 724.012 to obtain a blood sample pursuant to statutorily implied
consent?




                                      2
III. Whether, in order to show exigent circumstances, an investigating
officer must anticipate that he will obtain probable cause for a blood
warrant prior to obtaining all of the facts necessary to obtain such a
warrant; or whether exigent circumstances is determined as of the time
the facts known to the officer mature into probable cause for the blood
warrant?

IV. Whether the Thirteenth Court of Appeals erred in considering the
subjective belief of the arresting officer that he did not need a warrant,
in its determination as to whether exigent circumstances justified the
officer in obtaining a blood sample without a warrant?

V. Alternatively, to the extent that fact questions were raised at the
suppression hearing dependent upon the trial court’s belief in the
credibility of the witnesses and evidence, the Thirteenth Court of
Appeals erred in refusing to remand to the trial court for findings of
fact and conclusions of law.
                                ARGUMENT
I. Whether the implied consent and mandatory blood draw provisions
of the Texas Transportation Code are a constitutionally valid
alternative to the warrant requirement.

      The issue is presently before this Court in State v. Villarreal, PD-

0306-14 (Tex. Crim. App, November 26, 2014), which, although initially

decided against the State, is now pending on rehearing.              The State

respectfully requests that cases like the present one, with similar or identical

issues, be held under consideration until Villarreal does become final and

binding. Accordingly, the State continues to argue that the implied consent

and mandatory blood draw provisions of the Texas Transportation Code are

a constitutionally valid alternative to the warrant requirement, and that the


                                       3
decision of the Thirteenth Court of Appeals to the contrary decides an

important question of federal law that has not been, but should be, settled by

the Court of Criminal Appeals. See Tex. R. App. P. 66.3 (b).

II. Whether a suspect’s failure to explicitly refuse a request to submit to
a blood draw prevents the arresting officer from proceeding under
Section 724.012 to obtain a blood sample pursuant to statutorily implied
consent?

        At the end of its opinion, the Thirteenth Court of Appeals

concluded, among other things, that the Implied Consent/Mandatory Draw

statute did not apply in the present case for the following reason:

      Section 724.012 requires that “the person refuses the officer’s request
      to submit to the taking of a specimen voluntarily” prior to the
      mandatory blood draw. TEX. TRANSP. CODE ANN. § 724.012
      (emphasis added). Therefore, as a matter of law, Officer Jordan did
      not properly acquire appellee’s blood sample pursuant to section
      724.012.

(13th Court of Appeals Opinion pp. 18-19)

      However, the Implied Consent/Mandatory Draw provisions of the

Texas Transportation Code generally consist of the following three statutes,

which should be read together:

      Sec. 724.011. CONSENT TO TAKING OF SPECIMEN.
      (a) If a person is arrested for an offense arising out of acts alleged to
      have been committed while the person was operating a motor vehicle
      in a public place, or a watercraft, while intoxicated, …, the person is
      deemed to have consented, subject to this chapter, to submit to the
      taking of one or more specimens of the person's breath or blood ….



                                       4
      Sec. 724.012. TAKING OF SPECIMEN.
      (a) One or more specimens of a person's breath or blood may be taken
      if the person is arrested and at the request of a peace officer having
      reasonable grounds to believe the person:
             (1) while intoxicated was operating a motor vehicle in a public
             place, or a watercraft; …
      (b) A peace officer shall require the taking of a specimen of the
      person's breath or blood under any of the following circumstances if
      the officer arrests the person for an offense under Chapter 49, Penal
      Code, involving the operation of a motor vehicle or a watercraft and
      the person refuses the officer's request to submit to the taking of a
      specimen voluntarily: [Mandatory Draw Circumstances.]

      Sec. 724.013.     PROHIBITION ON TAKING SPECIMEN IF
      PERSON REFUSES; EXCEPTION.
      Except as provided by Section 724.012(b), a specimen may not be
      taken if a person refuses to submit to the taking of a specimen
      designated by a peace officer.

        When properly read as a whole, it is clear that the situation in which

a suspect neither explicitly submits nor explicitly refuses to submit to a

blood draw under Section 724.012 does not, as the Thirteenth Court of

Appeals seems to assume, defeat a compelled draw, but merely shifts it from

the purview of Subsection (b), to that of Subsection (a).

        Specifically, Section 724.011 is the operative statute that deems

consent for the blood draw by virtue of the underlying DWI arrest.1 Section



1
         The Thirteenth Court of Appeals concluded that the State failed to
preserve its reliance on the implied consent provisions of Section 724.011,
as follows:
       At the suppression hearing, the State neither mentioned the implied
       consent statute it cites on appeal nor argued that appellee impliedly
                                       5
724.013 partially removes this deemed consent only if the suspect “refuses

to submit.” Accordingly, if the suspect does not refuse to submit, deemed

consent remains intact and blood may be drawn even upon a simple DWI

arrest under Section 724.012(a). On the other hand, if the suspect does

affirmatively “refuse to submit,” blood may only be drawn if he fits within

the narrower category of a Section 724.012(b) DWI arrest under aggravating

circumstances.

        The Thirteenth Court of Appeals erred in piecemealing the statute

and assuming that the suspect’s refusal to submit defeated the officer’s

ability to compel a warrantless blood draw.




       consented to the warrantless blood draw by driving on the roadway or
       obtaining a driver’s license as it now argues.
    th
(13 Court of Appeals Opinion p. 16)
         However, the fact that the State may never have mentioned Section
724.011 by name does not detract from the fact the its whole argument at the
suppression hearing was based on the implied consent/mandatory draw
provision included within Sections 724.011 through 724.013, and both the
parties and the trial court understood this from the arguments made and the
pleadings on file. (Reporter’s Record pp. 6-7) Rodriguez’s Motion to
Suppress Blood Test even presumes that Section 724.011 deemed consent
applies, but initially attempts to avoid its application by alleging that he was
illegally detained and not arrested at the time. (Clerk’s Record p. 393)


                                       6
III. Whether, in order to show exigent circumstances, an investigating
officer must anticipate that he will obtain probable cause for a blood
warrant prior to obtaining all of the facts necessary to obtain such a
warrant; or whether exigent circumstances is determined as of the time
the facts known to the officer mature into probable cause for the blood
warrant?

         The Thirteenth Court of Appeals suggests by its opinion that it was

determining exigent circumstances as of the time that the officer arrived at

the scene of the accident, which in turn suggests that the officer in question

had some duty to anticipate that he would develop probable cause and make

arrangements to obtain a warrant at that time.

         In particular, the Thirteenth Court of Appeals devised the following

broad generalization from the McNeely opinion:

         Moreover, the United States Supreme Court has stated that if an
         officer can take steps to secure a warrant while the suspect is being
         transported to a hospital by another officer, there would be no
         plausible justification for an exception to the warrant requirement.
         McNeely, 133 S.Ct. at 1561.

(13th Court of Appeals Opinion p. 14)         Yet, the Supreme Court never

suggested in McNeely that the officer’s duty to take steps to secure a warrant

begins before he has developed probable cause to believe that the suspect

was intoxicated. Other Supreme Court cases suggest that the duty to seek a

warrant may not even occur until after the officer has developed something

more than the bare minimum of facts arguably necessary to show probable

cause.

                                       7
      In Kentucky v. King, the Supreme Court held that police, when they

are otherwise acting lawfully, may be excused from the warrant requirement

even when their own actions create the exigent circumstances that make

getting a warrant impractical. 131 S. Ct. 1849, 1857-61 (2011). Therein the

Supreme Court examined circumstances in which a police-created exigency

occurs even after facts sufficient to show probable cause have been

developed, and stated that “[t]here are many entirely proper reasons why

police may not want to seek a search warrant as soon as the bare minimum

of evidence needed to establish probable cause is acquired.” Id. at 1860.

Among other reasons, the Supreme Court noted that “the police may want to

ask an occupant of the premises for consent to search because doing so is

simpler, faster, and less burdensome than applying for a warrant,” and that

“law enforcement officers may wish to obtain more evidence before

submitting what might otherwise be considered a marginal warrant

application.” Id. The Supreme Court concluded that “[f]aulting the police

for failing to apply for a search warrant at the earliest possible time after

obtaining probable cause imposes a duty that is nowhere to be found in the

Constitution.” Id. at 1861.

      With regard to a DWI investigation, the fact that the suspect caused an

accident, and inarticulate suspicions that he might have been intoxicated at


                                      8
the time, are insufficient to show probable cause for a DWI arrest or blood

search. See Torres v. State, 182 S.W.3d 899, 903 (Tex. Crim. App. 2005).

      In the present case, while at the scene and before going to the hospital,

Officer Jordan had nothing more than a suspicion that Rodriguez might be

intoxicated. (Reporter’s Record p. 13) Only after arriving at the hospital,

smelling alcohol on Rodriguez’s breath, and hearing his slurred speech, did

Officer Jordan feel confident that he had probable cause to arrest Rodriguez

for DWI/Intoxication Assault, and therefore probable cause to support a

blood warrant as well. (Reporter’s Record pp. 15-17, 29, 41)

      In addition, for the same reasons set forth in King, even if Officer

Jordan had the bare minimum for probable cause at the scene of the

accident, it would have been objectively reasonable for him to delay seeking

a warrant until he had an opportunity to speak to Rodriguez and observe him

more closely at the hospital, and perhaps even make getting a warrant

unnecessary by virtue of his consent to a blood draw.

      Accordingly, the Thirteenth Court of Appeals clearly misapplied its

calculation of delay by assuming that Officer Jordan should have attempted

to obtain a warrant at the scene of the accident, rather than later at the

hospital when the facts known to Officer Jordan reached the level of

probable cause.


                                      9
        Moreover, concerning the relevant period of delay, the record

suggests that there was little or no delay in drawing Rodriguez’s blood once

Officer Jordan smelled alcohol on his breath and placed him under arrest.

(Reporter’s Record pp. 18, 37) However, both Officer Jordan and Officer

Gary Williams, who was assigned to the DWI Enforcement Unit and whose

primary function was DWI investigation (Reporter’s Record pp. 95-96),

testified to the lengthy process for obtaining a warrant and gave estimates of

the delay at generally between an hour and an hour and a half. (Reporter’s

Record pp. 21, 66, 100-01, 112-13)

        In McNeely, the Supreme Court’s discussion concerning the lack of

exigent circumstances was generally premised upon “a situation in which the

warrant process will not significantly increase the delay before the blood test

is conducted.” Missouri v. McNeely, 133 S. Ct. 1552, 1561 (2013). The

Supreme Court specifically acknowledged that “exigent circumstances

justifying a warrantless blood sample may arise in the regular course of law

enforcement due to delays from the warrant application process.” Id. at

1563.

        Had the Thirteenth Court of Appeals applied the correct calculation of

delay at one hour to an hour and a half, this clearly would have been a




                                      10
significant enough delay under the circumstances to show loss of evidence

and to justify the warrantless blood draw.

IV. Whether the Thirteenth Court of Appeals erred in considering the
subjective belief of the arresting officer that he did not need a warrant,
in its determination as to whether exigent circumstances justified the
officer in obtaining a blood sample without a warrant?

      In its opinion, the Thirteenth Court of Appeals gave weight to the trial

court’s supposed “finding” that “Officer Jordan’s only basis for drawing

appellee’s blood without first obtaining a warrant was that section 724.012

required him to take a blood sample without appellee’s consent and without

the necessity of getting a warrant.” (13th Court of Appeals Opinion p. 12)

In doing so, the Court of Appeals neglected the objective facts showing

exigent circumstances and improperly looked to the arresting officer’s

subjective motivation and justification for the warrantless blood draw.

      When examining exigent circumstances to determine whether a

warrantless search is justified, this Court has stated that it uses an objective

standard of reasonableness, taking into account the facts and circumstances

known to the police at the time of the search. See Colburn v. State, 966

S.W.2d 511, 519 (Tex. Crim. App. 1998); Brimage v. State, 918 S.W.2d

466, 501 (Tex. Crim. App. 1994).            Likewise, the Supreme Court has

consistently applied an objective standard, rejecting any approach that looks

to the individual officer’s state of mind or motivation at the time of the

                                       11
search. See Brigham City, Utah v. Stuart, 547 U.S. 398, 404-05, 126 S. Ct.

1943 (2006); see also Kentucky v. King, 131 S. Ct. 1849, 1859 (2011)

(quoting Brigham City and noting the repeated rejection of a subjective

approach to exigent circumstances, which instead depends upon whether

“the circumstances, viewed objectively, justify the action”).

        For this reason, as well as the others already noted, the Thirteenth

Court of Appeals erred in rejecting exigent circumstances as an alternate

justification for obtaining a blood sample without a warrant in the present

case.

V. Alternatively, to the extent that fact questions were raised at the
suppression hearing dependent upon the trial court’s belief in the
credibility of the witnesses and evidence, the Thirteenth Court of
Appeals erred in refusing to remand to the trial court for findings of
fact and conclusions of law.

        Following the trial court's order granting a motion to suppress, signed

on May 28, 2013 (CR p. 402), the State timely filed a request for findings

and conclusions on June 7, 2013 (CR p. 434), and a notice of past due

findings on July 5, 2013. (CR p.444) 2

2
  The State would note that the judge who presided at the suppression
hearing, the Honorable Thomas F. Greenwell, died suddenly on July 15,
2013, such that it is no longer possible for him to render findings and
conclusions. This leaves open the question of whether the appropriate
remedy is for the present judge to make findings based on the paper record,
or for that judge to rehear the matter and thereafter render appropriate
findings and conclusions, which may be the more appropriate remedy. See
Garcia v. State, 15 S.W.3d 533 (Tex. Crim. App. 2000). However,
                                       12
      On August 6, 2013, the State filed in the Thirteenth Court of Appeals

a motion to abate the appeal and remand for necessary findings and

conclusions to be made, but the Court denied that motion on August 22,

2013. On August 27, 2013, the State asked the Court to reconsider its denial

of the motion to abate and remand, but the Court denied that motion as well

on October 2, 2013, and decided the present appeal based solely on the trial

judge’s comments at the suppression hearing. (See Appendices 2 & 33; 13th

Court of Appeals Opinion p. 5 n.1)

      In State v. Cullen, 195 S.W.3d 696 (Tex. Crim. App. 2006), this Court

explained the necessity for findings in connection with the trial court’s

granting of a motion to suppress, as follows:

      The refusal of trial courts to enter findings of fact when timely
      requested by the State leaves appellate courts with nothing to review
      except a one-word ruling and forces the courts of appeals to make
      assumptions about the trial court's ruling. The ruling could be based
      on a mistake of law, on the trial court's disbelief of the testimony
      presented, or even on a clerical error. There is the possibility that we
      are basing our entire appellate review on the wrong word being
      circled. We agree with Judge Womack's concurring opinion in Ross
      that courts of appeals should not be forced to make assumptions (or
      outright guesses) about a trial court's ruling on a motion to suppress
      evidence. De novo review of such a ruling does not resolve this issue
      because the trial court is still in the best position to judge the

whichever option may be proper or more appropriate, the State is clearly
entitled to findings and to have them made by the trial court in some manner.
3
  Although post-card notice was received concerning the Court’s denial of
the motion to reconsider, no such notice was received concerning the denial
of the original motion to abate and remand, which is reflected only on the
Court’s electronic docket and in footnote 1 of the opinion.
                                      13
      credibility and demeanor of the witnesses at a pretrial suppression
      hearing. Instead, the proper solution to this problem is to require the
      trial courts to enter findings of fact and conclusions of law when
      ruling on a motion to suppress evidence.

Id. at 698. Accordingly, Cullen set forth a requirement that:

      upon the request of the losing party on a motion to suppress evidence,
      the trial court shall state its essential findings. By “essential
      findings,” we mean that the trial court must make findings of fact and
      conclusions of law adequate to provide an appellate court with a basis
      upon which to review the trial court's application of the law to the
      facts.

Id. at 699.

      The Texas Rules of Appellate Procedure provide, in pertinent part, as

follows:

      (a) Generally. A court of appeals must not affirm or reverse a
      judgment or dismiss an appeal if:
      (1) the trial court's erroneous action or failure or refusal to act
      prevents the proper presentation of a case to the court of appeals; and
      (2) the trial court can correct its action or failure to act.
      (b) Court of appeals direction if error remediable. If the
      circumstances described in (a) exist, the court of appeals must direct
      the trial court to correct the error. The court of appeals will then
      proceed as if the erroneous action or failure to act had not occurred.

Tex. R. App. P. 44.4 (emphasis added).

      Accordingly, Rule 44.4 is mandatory and not permissive concerning

the duty of the appellate court to direct the trial court to correct errors of the

present nature. See Cullen, 195 S.W.3d at 698 (quoting Rule 44.4 as its




                                        14
authority for requiring the trial court to make findings and, by extension,

requiring the appellate court to abate and remand for such findings).

      In the present case, the Thirteenth Court of Appeals had a clear duty

to abate and remand for the trial court to make findings and conclusions, and

specifically credibility determinations about the testimony and evidence it

received at the suppression hearing.

                         PRAYER FOR RELIEF

      For the foregoing reasons, the State requests that the Court: grant this

petition for discretionary review; set this case for submission with oral

argument; and, after submission, reverse the judgment of the Court of

Appeals and remand to that Court either to enter an order vacating the trial

court’s suppression order, or to remand to the trial court to make findings

and conclusions, and thereafter to consider the present appeal based on those

findings and conclusions.

                                Respectfully submitted,
                                /s/Douglas K. Norman
                                ___________________
                                Douglas K. Norman
                                State Bar No. 15078900
                                Assistant District Attorney
                                105th Judicial District of Texas
                                901 Leopard, Room 206
                                Corpus Christi, Texas 78401
                                (361) 888-0410
                                (361) 888-0399 (fax)
                                douglas.norman@co.nueces.tx.us
                                       15
                       RULE 9.4 (i) CERTIFICATION
      In compliance with Texas Rule of Appellate Procedure 9.4(i)(3), I

certify that the number of words in this petition, excluding those matters

listed in Rule 9.4(i)(1), is 3,104.

                                  /s/ Douglas K. Norman
                                  ___________________
                                  Douglas K. Norman



                       CERTIFICATE OF SERVICE
      This is to certify that, pursuant to Tex. R. App. P. 6.3 (a), copies of

this petition for discretionary review were e-mailed on July 2, 2015, to

Respondent's attorney, Mr. Donald B. Edwards, and to the State Prosecuting

Attorney.


                                  /s/ Douglas K. Norman
                                  ___________________
                                  Douglas K. Norman




                                       16
           APPENDIX 1.
Thirteenth Court of Appeals Opinion.
                          NUMBER 13-13-00335-CR

                          COURT OF APPEALS

                THIRTEENTH DISTRICT OF TEXAS

                   CORPUS CHRISTI – EDINBURG

THE STATE OF TEXAS,                                                   Appellant,

                                             v.


JAVIER RODRIGUEZ,                                                      Appellee.


                  On appeal from the 319th District Court
                          of Nueces County, Texas.


                       MEMORANDUM OPINION
     Before Chief Justice Valdez and Justices Garza and Longoria
            Memorandum Opinion by Chief Justice Valdez

      By one issue, the State appeals the trial court’s granting of appellee Javier

Rodriguez’s motion to suppress. We affirm.
                                    I.     BACKGROUND

       After being involved in a multi-car accident where he and others were injured,

appellant was arrested for driving while intoxicated. A blood sample was taken from

appellee. Appellee filed a motion to suppress the test results of the blood sample,

challenging the constitutionality of section 724.012 of the Texas Transportation Code, the

mandatory blood draw statute.        See TEX. TRANSP. CODE ANN. § 724.012(b) (West,

Westlaw through 2013 3d C.S.).

       At the hearing on appellee’s motion to suppress, Officer Andrew Jordan testified

that on August 4, 2011, he arrived at the scene of a multi-car accident in Corpus Christi,

Texas, and he noticed appellee trapped in his vehicle bleeding and in need of assistance.

According to Officer Jordan, several people from the other cars were being transported

to the hospital and he was told “that there were substantial injuries.” Appellee was also

transported to the hospital. Officer Jordan said that at the hospital, after smelling the odor

of an alcoholic beverage in appellee’s hospital room, he placed appellee under arrest and

instructed a phlebotomist to draw appellee’s blood. Officer Jordan testified that it would

have taken between an hour and 90 minutes to get a warrant but that he never sought a

search warrant. Officer Jordan stated that he ordered the blood draw pursuant to the

mandatory blood draw statute. See id. Officer Jordan testified that he did not ask

appellee whether or not he consented to the blood draw, but “I read the form [that stated

appellee’s rights] and then I took the—I had the phlebotomist draw the blood for the

mandatory.”

       At the suppression hearing, the evidence established that Officer Jordan had not

obtained a warrant to acquire appellee’s blood sample and that he relied solely on the



                                                 2
mandatory blood draw statute. The State argued that appellee impliedly consented to the

blood draw by, among other things, remaining silent when the blood was drawn. The

State further argued that section 724.012 is an exception to the warrant requirement and

in the alternative, exigent circumstances existed. In response to the State’s argument

that there is implied consent in this case because appellee allowed the blood to be drawn

and remained silent, appellee’s trial counsel stated:

               And we certainly have no refusal if that were the case, but I would
       ask the Court to rely on the record. I think that was well developed through
       Officer Jordan, that the prosecutor suggested that [appellee did] not mov[e]
       [his] arm. . . . That Officer Jordan never considered consent [at] issue, that
       he simply looked right over that and the document speaks for itself, Your
       Honor. We got the exhibit here that he answered my direct question on.
       Consent nor refusal was an issue, he simply put it in front of the—read it to
       him, checked off mandatory, indicated no consent nor refusal [of] consent.
       And then moved on.

               Again, the thought among [Corpus Christi Police Department]
       officers, Judge, is that a warrant is not an issue in a case like this, they have
       developed their own interpretations of 724.012(B), and they are going to
       stick with that regardless of what 724.012(B) says.

Regarding whether appellee consented to the blood draw, the State responded that a

suspect may not simply stay mute and then argue that neither consent nor refusal

occurred; thus, by staying quiet, appellee consented. The State did not specifically

respond to appellee’s argument that Officer Jordan had not first acquired appellee’s

refusal for a specimen. And the prosecutor stated, “there was no indication that Mr.—the

defendant in this case, the suspect, refused or in anyway state[d] he refused to consent.”

Thus, the State’s argument was that appellee had not refused to provide a specimen

because he had consented by, among other things, staying mute. The trial judge stated:

“I think there has to be some sort of affirmative consent to say that somebody consented

in that situation. So I would find that there is no consent.”

                                                  3
       The parties then discussed the application of Missouri v. McNeely, which the trial

judge believed prohibits the State from acquiring a blood draw without a warrant or exigent

circumstances. See Missouri v. McNeely, __ U.S. __, 133 S.Ct. 1552 (2013). The trial

judge explained that under McNeely, when an officer is making a determination of

whether to take a blood draw because there are exigent circumstances, the officer is

required to make a fact-intensive analysis based on the circumstances and that in this

case Officer Jordan admitted he had only relied on the blood draw statute and that he did

not engage in any such analysis. It is clear from the record that the trial court did not

believe that Officer Jordan made any exigent circumstances inquiry because Officer

Jordan testified that he could rely on the statute alone and that he was not required to

obtain a warrant if he relied on the statute.

       The State argued that McNeely is very narrow and that the Supreme Court did not

reach the issue of whether a mandatory blood draw statute can serve as an exception to

the warrant requirement if properly phrased. The State asserted that the additional

exigency factors as mentioned in Schmerber, “are directly imbedded into the mandatory

blood law. For example, a crash with injury and a child passenger. These exigent factors

were already thought of by our legislature and put into the mandatory blood law. That

was the purpose behind some of those mandatory blood draws.” See Schmerber v. State

of California, 384 U.S. 757, 770 (1966).

       The State argued in the alternative that the evidence presented established that

there was an exigency in this case despite Officer Jordan’s testimony that he relied on

the statute alone. The trial judge stated that he did not think that the State had proven

that, in this particular case, exigent circumstances existed that justified the warrantless



                                                4
blood draw because Officer Jordan did not think he needed a warrant and testified he

relied solely on section 724.012(b). The judge explained, “And that’s the problem, we are

trying to go back and recreate an emergency in a situation where the officer didn’t even

try [to get a warrant] because he was relying on the mandatory [blood draw] statute. So

the State is not going to have anything to support an emergency.”                         Finally, the State

argued that Officer Jordan’s good faith reliance on the statute required that the trial court

deny appellee’s motion to suppress. The trial court granted the motion but did not state

its reasons in the order and did not enter any findings and conclusions. The State filed a

request for findings of fact and conclusions of law, but no findings and conclusions were

filed before the death of the judge in this case.1 This appeal followed.

                        II.      STANDARD OF REVIEW AND APPLICABLE LAW

        We review a trial court’s decision on a motion to suppress for an abuse of

discretion. Crain v. State, 315 S.W.3d 43, 48 (Tex. Crim. App. 2010). Under our abuse

of discretion analysis, we use a bifurcated standard. State v. Ross, 32 S.W.3d 853, 856



        1 After the Honorable Thomas F. Greenwell, the judge who granted appellee’s motion to suppress,
passed away, the State filed a motion with this Court requesting that we abate this appeal and remand it
for a new motion to suppress hearing with a new judge. The State argued that “[w]ithout explicit findings
concerning the credibility of the witnesses who testified to the difficulty they would have had in obtaining a
warrant, all inferences would run against the State concerning the factual basis for the exigency.” We
denied the motion. The State filed a motion to reconsider our ruling asking that we remand the case for
findings of fact and conclusions of law to be drafted in the alternative. We denied that motion.

          Because the pertinent facts are undisputed and Judge Greenwell made a pertinent oral finding on
the record, and Judge Greenwell orally stated the reasons for his ruling, we conclude that written findings
of fact and conclusions of law are unnecessary for our disposition of the issue presented here. See Francis
v. State, 428 S.W.3d 850, 855 n.10 (Tex. Crim. App. 2014) (“In the context of motions to suppress, we have
further held that ‘[a]ppellate courts may review the legal significance of undisputed facts de novo.’”); State
v. Cullen, 195 S.W.3d 696, 699–700 (Tex. Crim. App. 2006) (“[W]hile the appealing party must file its notice
of appeal in accordance with the applicable statutes and rules, the trial court has 20 days from the date of
its ruling in which to file findings of fact if it has not already made oral findings on the record.”). Moreover,
as explained further below, the credibility of the witnesses’ testimony does not appear to have been at
issue, and Judge Greenwell made his decision as a matter of law. Thus, we have no indication that Judge
Greenwell disbelieved the testimony, and our disposition would not change even if he had.


                                                            5
(Tex. Crim. App. 2000) (en banc) (citing Guzman v. State, 955 S.W.2d 85, 88 (Tex. Crim.

App. 1997) (en banc)); see also Urbina v. State, No. 13–08–00562–CR, 2010 WL

3279390, at *1 (Tex. App.—Corpus Christi Aug.19, 2010, pet. ref’d) (mem. op., not

designated for publication). We give almost total deference to the trial court’s findings of

historical fact that are supported by the record and to mixed questions of law and fact that

turn on an evaluation of credibility and demeanor. Amador v. State, 221 S.W.3d 666, 673

(Tex. Crim. App. 2007) (citing Guzman, 995 S.W.2d at 89). We “review de novo ‘mixed

questions of law and fact’ that do not depend upon credibility and demeanor.” Id. (quoting

Montanez v. State, 195 S.W.3d 101, 107 (Tex. Crim. App. 2006)); Guzman, 995 S.W.2d

at 89.

         “When a trial court makes explicit fact findings, the appellate court determines

whether the evidence (viewed in the light most favorable to the trial court’s ruling) supports

these fact findings.” State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). We will

uphold the trial court’s ruling under any applicable theory of law supported by the facts of

the case whether we infer the fact findings or consider express findings. Alford v. State,

400 S.W.3d 924, 929 (Tex. Crim. App. 2013). “Similarly, regardless of whether the trial

court has made express conclusions of law, we uphold the trial court’s ruling under any

theory supported by the facts because an appellate court reviews conclusions of law de

novo.” Id. Under our de novo review, we are not required to defer to a trial court’s

particular theory. Id. This “rule holds true even if the trial court gave the wrong reason

for its ruling.” Armendariz v. State, 123 S.W.3d 401, 403 (Tex. Crim. App. 2003).

         “To suppress evidence on an alleged Fourth Amendment violation, the defendant

bears the initial burden of producing evidence that rebuts the presumption of proper police



                                                 6
conduct.” Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). “A defendant

satisfies this burden by establishing that a search or seizure occurred without a warrant.”

Id.; see also Kelly, 204 S.W.3d at 819 n.22 (noting that in the context of a case alleging

assault in a blood draw that “[i]t is important to note that appellee had the initial burden to

produce evidence to support a finding that she did not consent to . . . [the] blood draw”).

Once a defendant establishes there was no warrant, the burden shifts to the State to

prove the warrantless search was reasonable under the totality of the circumstances.

Amador, 221 S.W.3d at 672–73. The State satisfies this burden if it proves an exception

to the warrant requirement. See Gutierrez, 221 S.W.3d at 685.

       “Whether a warrantless blood test of a drunk-driving suspect is reasonable must

be determined case by case based on the totality of the circumstances.” McNeely, 133

S.Ct. at 1563. In Schmerber, the United States Supreme Court held that the evidence

showed that the police officer reasonably believed that an emergency existed because

the delay in seeking or obtaining a warrant would result in the destruction of evidence.

Schmerber, 384 U.S. at 770. The court relied on evidence in the record that the alcohol

in the blood dissipates and stated,

               Particularly in a case such as this, where time had to be taken to
       bring the accused to a hospital and to investigate the scene of the accident,
       there was no time to seek out a magistrate and secure a warrant. Given
       these special facts, we conclude that the attempt to secure evidence of
       blood-alcohol content in this case was an appropriate incident to petitioner’s
       arrest.

Id. at 770–71. In McNeely, the United States Supreme Court stated that in Schmerber it

had determined that the warrantless blood test was reasonable after considering all of the

facts and particular circumstances in that case and its analysis “fits comfortably within [its]




                                                  7
case law applying the exigent circumstances exception” to the warrant requirement.

McNeely, 133 S.Ct. at 1560.

       In McNeely, the State argued that “whenever an officer has probable cause” that

an individual is driving under the influence of alcohol there are exigent circumstances

because blood alcohol evidence is inherently evanescent. Id. And, “[a]s a result, . . . so

long as the officer has probable cause and the blood test is conducted in a reasonable

manner, it is categorically reasonable for law enforcement to obtain the blood sample

without a warrant.” Id. The McNeely court rejected the State’s argument and held that

“[i]n those drunk-driving investigations where police officers can reasonably obtain a

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

of the search, the Fourth Amendment mandates that they do so.” Id. at 1561. The

McNeely court explained

              We do not doubt that some circumstances will make obtaining a
       warrant impractical such that the dissipation of alcohol from the bloodstream
       will support an exigency justifying a properly conducted warrantless blood
       test. That, however, is a reason to decide each case on its facts, as we did
       in Schmerber, not to accept the ‘considerable overgeneralization’ that a per
       se rule would reflect.

Id.

       Section 724.012 of the Texas Transportation Code states in pertinent part that “[a]

peace officer shall require the taking of a specimen of the person’s breath or blood under

any of the [listed] circumstances if the officer arrests the person for an offense under

Chapter 49, Penal Code, involving the operation of a motor vehicle or a watercraft and

the person refuses the officer’s request to submit to the taking of a specimen voluntarily.”

TEX. TRANSP. CODE ANN. § 724.012 (emphasis added). The applicable subsection states

that an officer must take the person’s blood if “the person was the operator of a motor

                                                8
vehicle or a watercraft involved in an accident that the officer reasonably believes

occurred as a result of the offense and, at the time of the arrest, the officer reasonably

believes that as a direct result of the accident" either "any individual has died or will die,"

"an individual other than the person has suffered serious bodily injury" or "an individual

other than the person has suffered bodily injury and been transported to a hospital or

other medical facility for medical treatment." Id. § 724.012(b)(1).

                    Ill.   EXCEPTIONS TO THE WARRANT REQUIREMENT

A.     Section 724.012

       The State contends that section 724.012 is an exception to the constitutional

warrant requirement. Specifically, the State argues that "[t]he exigent circumstances or

'special facts' [as required by McNeely] are carved out in the mandatory blood draw

statute .... "

       This Court has already determined that the Legislature did not mean to circumvent

the Fourth Amendment's requirement that the police officer acquire a warrant prior to

acquiring a blood sample after the suspect refuses to provide a specimen regarding

another portion of the mandatory blood draw statute. See State v. Villarreal, No. 13-13-

00253-CR, _ S.W.3d _, _, 2014 WL 1257150, at *11 (Tex. App.-Corpus Christi Jan.

23, 2014, pet. granted). The court of criminal appeals affirmed our decision stating, "the

provisions in the Transportation Code do not, taken by themselves, form a constitutionally

valid alternative to the Fourth Amendment warrant requirement" and "a nonconsensual

search of a DWI suspect's blood conducted pursuant to the mandatory-blood-draw and

implied-consent provisions in the Transportation Code, when undertaken in the absence

of a warrant or any applicable exception to the warrant requirement, violates the Fourth



                                                  9
Amendment.” State v. Villarreal, No. PD–0306–14, 2014 WL 6734178, at **20–21 (Tex.

Crim. App. Nov. 26, 2014, pet. granted).2 Accordingly, we conclude that section 724.012

of the transportation code does not by itself form a constitutionally recognized exception

to the warrant requirement.            See id.     Instead, under McNeely, each case must be

evaluated on a case-by-case basis. See McNeely, 133 S.Ct. at 1560.

B.      Exigent Circumstances

        The State argues that it provided evidence that exigent circumstances existed to

obtain appellee’s blood sample because it is imbedded in section 724.012. However, the

State also points to facts in the record it alleges amounted to an exigency in this case.

At trial, the State alleged to the trial court that exigent circumstances existed here stating

the following:

        Your Honor, in this case we do have expert circumstances [sic], for example
        in Schmerber they mentioned that a crash, a child passenger, other
        complicating factors; such as multiple witnesses, multiple defendants, high
        number of arrests at the time of the incident, these can all be additional
        exigency factors that can lead to the conclusion that blood is—

The trial court interrupted the prosecutor and stated, “But the officer didn’t have time to

get a warrant. This officer never tried, never made an attempt.” The State then argued

that the trial court must look at the facts objectively to determine whether the police officer

had enough time to get a warrant and that in this case getting a warrant would have taken

too long. The trial court replied, “That’s all based on some sort of general, what the normal

case is and this sort of thing. The Supreme Court, as I read this case, is saying that that

should be the exception, not the norm, that you need a warrant if you are going to get



      2 After affirming our decision, the court of criminal appeals granted the State’s petition for rehearing.

However, it has not vacated its decision affirming our decision.


                                                          10
somebody’s blood” and here, “you can’t use general facts to support a specific conclusion

in this particular case.” The trial court then pointed out that in this case, Officer Jordan

did not even attempt to get a warrant “because he was relying on the mandatory statute.

So the State is not going to have anything to support an emergency.” These are the only

arguments the State made to the trial court regarding exigent circumstances. Thus, any

other arguments made on appeal by the State have not been preserved for our review. 3

        The State does not explicitly state on appeal that even if section 724.012 does not

provide the required exigency alone, nonetheless, it established, based on the evidence

presented, that an exigency existed. However, the State does point to evidence that

arguably could have supported such a conclusion.4 Thus, we will address the argument

that there was an exigency that excused Officer Jordan from acquiring a warrant.

        Exigency is an established exception to the warrant requirement and “applies when

the exigencies of the situation make the needs of law enforcement so compelling that a

warrantless search is objectively reasonable under the Fourth Amendment.” McNeely,



        3  In its brief, the State maintains that there are other non-exigency based exceptions to the warrant
requirement such as the automobile exception, and voluntary consent and waiver and other consideration
such as “the underlying expectation of privacy as a factor” and “the nature of the privacy interest in blood”
that “will be sufficient to sustain the constitutionality of [mandatory blood draw statutes], especially the
Texas statute, which is narrowly drawn to include only the most egregious offenders and situations.”
However, although the State argued that the McNeely decision is very narrow, the State did not make any
of the above-mentioned arguments to the trial court. Accordingly, we may not reverse the trial court on any
of these grounds. See State v. Rhinehart, 333 S.W.3d 154, 162 (Tex. Crim. App. 2011) (stating, “ordinary
rules of procedural default” apply to “losing party” in trial court); Hailey v. State, 87 S.W.3d 118, 121–22
(Tex. Crim. App. 2002) (“It is well-settled that . . . it violates ordinary notions of procedural default for a
Court of Appeals to reverse a trial court’s decision on a legal theory not presented to the trial court by the
complaining party.”) (quotations omitted); State v. Mercado, 972 S.W.2d 75, 78 (Tex. Crim. App. 1998) (en
banc) (“[I]n cases in which the State is the party appealing, the basic principle of appellate jurisprudence
that points not argued at trial are deemed to be waived applies equally to the State and the defense.”); see
also Martinez v. State, 91 S.W.3d 331, 336 (Tex. Crim. App. 2002) (“And so it is that appellate courts may
uphold a trial court’s ruling on any legal theory or basis applicable to the case, but usually may not reverse
a trial court’s ruling on any theory or basis that might have been applicable to the case, but was not raised.”).
        4   At oral argument, the State argued that it established that exigent circumstances existed.


                                                           11
133 S.Ct. at 1558 (quoting Kentucky v. King, __ U.S. __, __, 131 S.Ct. 1849, 1856

(2011)). We must look to the totality of the circumstances in determining if the warrantless

search was permissible due to an exigency. Id. at 1559. We agree with Dounds v. State

that “in order to establish a plausible justification for an exigent circumstances exception

to the warrant requirement, the State had the burden to show facts and circumstances

beyond the passage of time and the resulting dissipation of alcohol in the bloodstream.”

434 S.W.3d 842, 851 (Tex. App.—Houston [14th Dist.] 2014, pet. granted).

       Here, the trial court specifically found that Officer Jordan said he did not rely on

any emergency or exigency to obtain appellee’s blood sample and instead Officer Jordan

only relied on section 724.012 to obtain appellee’s blood sample. We must give this

historical fact finding almost total deference because as further explained below, it is

supported by the record. See Amador, 221 S.W.3d at 673. Thus, similar to Villarreal, the

trial court found that Officer Jordan’s only basis for drawing appellee’s blood without first

obtaining a warrant was that section 724.012 required him to take a blood sample without

appellee’s consent and without the necessity of getting a warrant. See Villarreal, 2014

WL 1257150, at *11.

       This finding is supported by the record. At the suppression hearing, Officer Jordan

continuously claimed that his sole basis for the warrantless blood draw was section

724.012.    On cross-examination by appellee’s trial counsel the following exchange

occurred:

       Defense Counsel:     All right. So the urgency then was for clearing the
                            scene as opposed to anything else?

       Officer Jordan:      No. It was for making sure everybody was treated and
                            clearing the scene. Making sure the people who



                                                12
                          needed to go to the hospital went to the hospital and
                          then clearing the intersection.

      Defense Counsel:    So, were those two urgencies, clearing the intersection
                          and making sure everybody who needed treatment got
                          treatment?

      Officer Jordan:     That’s right.

      Defense Counsel:    Was there any urgency regarding the obtaining of a
                          warrant?

      Officer Jordan:     Not at that time.

      Defense Counsel:    Well, when you say not at that time, did it ever become
                          a time when there was some urgency about obtaining
                          a warrant?

      Officer Jordan:     A blood warrant?

      Defense Counsel:    Yes, sir.

      Officer Jordan:     No.

      Defense Counsel:    Was a blood warrant ever discussed?

      Officer Jordan:     No, it was not.

      Defense Counsel:    Had it been discussed, was there enough people there
                          to accomplish getting a blood warrant?

      Officer Jordan:     I’m not sure.

      Later in his testimony, Officer Jordan said, “[T]he warrant never came up.”

Defense counsel asked, “There was never any discussion with [his superior] Lieutenant

McClure, listen, we should get a warrant but we don’t have enough time.” Officer Jordan

replied, “Right” and agreed “That never happened.” The evidence showed that Officer

Jordan did not attempt to acquire a warrant, and although officers who were present at

the scene had informed Officer Jordan that appellee may have been intoxicated, there

was no evidence that anyone attempted to acquire a warrant.

                                              13
        In addition, Officer Jordan testified that he did not transport appellee to the hospital.

Given that Officer Jordan stated that he was not concerned with obtaining a warrant and

that the evidence showed that he did not transport appellee to the hospital, we conclude

that the trial court’s finding is supported by the evidence. Moreover, the United States

Supreme Court has stated that if an officer can take steps to secure a warrant while the

suspect is being transported to a hospital by another officer, there would be no plausible

justification for an exception to the warrant requirement. McNeely, 133 S.Ct. at 1561.

Here, there is no evidence that Officer Jordan could not have taken steps to obtain a

warrant because he never even considered obtaining one.5 See Weems v. State, 434

S.W.3d 655, 666 (Tex. App.—San Antonio 2014, pet. granted) (finding no exigency

despite evidence that there had been an accident, the passenger had been injured, and

the defendant had been transported to the hospital and noting that the officer had made

no effort to obtain a warrant). Accordingly, we conclude that the trial court did not abuse

its discretion by concluding that the State failed to establish that an exigency existed.6

We overrule the State’s issue to the extent that it argues an exigency existed in this case.

C.      Section 724.011’s Implied Consent




        5 To the extent that the State may argue that Officer Doug McDonald’s testimony supports that
exigent circumstances existed in this case, we disagree because Officer McDonald stated he had no
knowledge whether the issue of acquiring a warrant was ever discussed and that “he did not handle any
part of the DWI investigation” and was “strictly [assigned] to the traffic accident.” Thus, he had no
knowledge regarding whether Officer Jordan could have taken steps to obtain a warrant, and Officer Jordan
did not testify that he could not have taken those steps. To the extent that the State relies on Officer Gary
Williams’s testimony, he agreed that he had nothing to do with this particular case and that he did not know
anything about it.
        6 At oral argument, the State argued that Officer Jordan did not possess probable cause to obtain
a warrant at the scene of the accident even though other police officers told him appellee may have been
intoxicated. However, at the suppression hearing, the State made no such argument.


                                                         14
         Citing section 724.011 of the Texas Transportation Code, the State argues that

pursuant to “the implied consent statute,” a person is deemed to have consented to the

taking of one or more specimens of the person’s blood for analysis to determine its alcohol

content if that person is intoxicated and “is arrested for an offense arising out of acts

alleged to have been committed while the person was operating a motor vehicle in a

public place.” See TEX. TRANSP. CODE ANN. § 724.011 (West, Westlaw through 2013 3d

C.S.).       The State asserts that anyone who operates a motor vehicle has impliedly

consented to a blood draw.

         Regarding implied consent, at the suppression hearing, the prosecutor stated:

         Consent can be either [explicit] or implied. In this case, we did develop
         some testimony, I believe from Officer Jordan, that he specifically asked for
         consent and nothing was said. He instructed the nurse to go ahead and
         take a blood sample, there was no indication that Mr.—the defendant in this
         case, the suspect, refused or in anyway state[d] he refused to consent.
         Apparently I don’t know if he stuck his arm out and allowed his arm to be
         punctured and a blood sample be taken. So we, you know, we would argue
         that’s an implied consent.

                 ....

                 I think if you are going to look at whether consent occurred or not,
         Judge, you have to look at what a reasonable person under the
         circumstances would have understood and would of [sic] done. He was
         asked to give consent,[7] he stood there mute and allowed a blood sample
         to be taken. Would a reasonable person have said no? Would a reasonable
         person have started to take the blood or started to attempt to swab his arm
         down, which would have been normal; would he have pulled back, and said
         no, I haven’t given consent or I refuse consent?

                Aside from that, assuming that consent was not affirmative to be
         given, which we think it may be a fact question. I just—if I may, I would like

         7We note that Officer Jordan testified that he did not ask for consent for the blood draw because
he was relying on section 724.012, which he believed mandates a blood draw when the suspect has been
arrested for suspicion of driving while intoxicated and been involved in an accident where someone has
suffered an injury. See TEX. TRANSP. CODE ANN. § 724.012 (West, Westlaw through 2013 3d C.S.). It
appears from our review of the record that Officer Jordan believed that he could order the blood draw
without asking for consent and without obtaining appellee’s refusal to provide a specimen.


                                                       15
       to say I think they are also presuming a terrible situation here where they
       want to say there is a third option; which is simply to stand mute and neither
       consent nor refuse, in which case the statute doesn’t allow, according to
       them, the statute doesn’t allow you to take the draw at all.

Thus, the State’s argument at the suppression hearing was that appellee’s silence,

among other things, amounted to implied consent. The trial court concluded that there

was no consent and stated, “I think there has to be some sort of affirmative consent to

say that somebody consented in that situation. So I would find that there is no consent.”

       At the suppression hearing, the State neither mentioned the implied consent

statute it cites on appeal nor argued that appellee impliedly consented to the warrantless

blood draw by driving on the roadway or obtaining a driver’s license as it now argues.

Thus, to the extent that the State now makes this argument, we conclude that it does not

comport with its argument to the trial court. See Bell v. State, 938 S.W.2d 35, 54 (Tex.

Crim. App. 1996) (explaining that the grounds raised on appeal must comport with the

objections made before the trial court). Moreover, we cannot reverse the trial court’s

judgment on grounds not presented to it. See State v. Rhinehart, 333 S.W.3d 154, 162

(Tex. Crim. App. 2011) (stating that “ordinary rules of procedural default” apply to “losing

party” in trial court); Hailey v. State, 87 S.W.3d 118, 121–22 (Tex. Crim. App. 2002) (“It is

well-settled that . . . it violates ordinary notions of procedural default for a Court of Appeals

to reverse a trial court’s decision on a legal theory not presented to the trial court by the

complaining party.”) (quotations omitted); State v. Mercado, 972 S.W.2d 75, 78 (Tex.

Crim. App. 1998) (en banc) (“[I]n cases in which the State is the party appealing, the basic

principle of appellate jurisprudence that points not argued at trial are deemed to be waived

applies equally to the State and the defense.”). Thus, we overrule the State’s issue to the




                                                  16
extent that it argues that “the implied consent statute” required that the trial court deny

appellee’s motion to suppress.

        The State further argues in addressing the implied consent statute that appellee

“remained mute during the reading of [a license suspension warning] and allowed the

taking of his blood. Officer Jordan testified that no struggle ensued, no words were

exchanged, and [appellee] offered his arm.”8                  However, the State neither cites to

appropriate authority nor provides any legal analysis concerning how these facts required

the trial court to deny appellee’s motion to suppress because implied consent served as

an exception to the warrant requirement. See TEX. R. APP. P. 38.1(i). Thus, to the extent

that the State attempted to argue that appellee impliedly consented and that his implied

consent served as an exception to the warrant requirement, we conclude that this

argument is inadequately briefed.9 See id. Accordingly, we overrule the State’s first issue

to the extent that it argues that the trial court should have denied appellee’s motion to

suppress on the basis that appellee remained mute and “allowed” the taking of his blood

sample.

D.      Refusal

        As previously stated, once appellee established that his blood sample was

obtained without a warrant, the burden shifted to the State to prove that an exception to




        8Although on direct examination by the State, Officer Jordan agreed that appellee offered his arm,
on cross-examination by defense counsel, Officer Jordan said that appellee “didn’t physically go like, here
you go” by offering his arm and Officer Jordan did not recall whether appellee moved his arm at all.
        9 When asked by appellee’s trial counsel, “Did he consent to a specimen,” Officer Jordan replied,
“No, he didn’t. . . . That’s right. He didn’t consent.” When asked, “All right. We are clear on that, he did
not consent . . . . And he didn’t refuse,” Officer Jordan said, “That’s right.” Officer Jordan agreed that
“consent or refusal” were not “an issue in [his] mind.” Later during his testimony Officer Jordan stated that
the blood draw “was mandatory, I didn’t give him a chance to agree.”


                                                         17
the warrant requirement existed; here the State alleged that section 724.012 provided

that exception. See Gutierrez, 221 S.W.3d at 685. At the suppression hearing, the State

invoked section 724.012 as an exception to the warrant requirement and argued that

Officer Jordan properly ordered the blood draw pursuant to that statute. Although we

have already determined that section 724.012 is not by itself an exception to the warrant

requirement, as has the court of criminal appeals, even assuming it is, we conclude that

the trial court properly granted the motion to suppress as explained below on the basis

that Officer Jordan failed to comply with section 724.012; thus, the State could not have

established that it applied in this case.

       At the suppression hearing, Officer Jordan admitted that he had not asked for

appellee’s permission to take the blood draw and that appellee had not consented or

refused to provide a specimen. The prosecutor stated, “there was no indication that Mr.—

the defendant in this case, the suspect, refused or in anyway state[d] he refused to

consent,” and “I think they are also presuming a terrible situation here where they want

to say there is a third option; which is simply to stand mute and neither consent nor

refuse. . . .” Thus, the State conceded and acknowledged to the trial court that appellee

never refused to give a specimen to Officer Jordan. In response to the State’s argument

that appellee consented to the blood draw, appellee’s trial counsel said, “And we certainly

have no refusal if that were the case. . . .” The fact that Officer Jordan did not acquire

appellee’s refusal prior to taking the blood draw is undisputed, and the only evidence

presented by the State establishes that there was no refusal to provide a specimen.

       Section 724.012 requires that “the person refuses the officer’s request to submit

to the taking of a specimen voluntarily” prior to the mandatory blood draw. TEX. TRANSP.



                                               18
CODE ANN. § 724.012 (emphasis added). Therefore, as a matter of law, Officer Jordan

did not properly acquire appellee’s blood sample pursuant to section 724.012.

Accordingly, the trial court did not abuse its discretion by granting appellee’s motion to

suppress. See Alford, 400 S.W.3d at 929 (“Even if the trial court had limited its conclusion

of law to a particular legal theory, an appellate court would not be required to defer to that

theory under its de novo review.”); Armendariz, 123 S.W.3d 401 at 403 (holding that this

“rule holds true even if the trial court gave the wrong reason for its ruling.”). We overrule

the State’s sole issue.



                                        IV.    CONCLUSION

       We affirm the trial court’s judgment.

                                                  /s/ Rogelio Valdez__
                                                  ROGELIO VALDEZ
                                                  Chief Justice

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

Delivered and filed the
18th day of June, 2015.




                                                 19
     APPENDIX 2.
Electronic Docket Sheet.
Case Detail                                                         http://www.search.txcourts.gov/Case.aspx?cn=1...

          CASE:
          13-13-00335-CR
          DATE FILED:


          07/03/2013


          CASE TYPE:


          MISCELLANEOUS/OTHER CRIMINAL INCLUDING MISDEMEANOR OR FELONY


          STYLE:


          THE STATE OF TEXAS


          V.:


          JAVIER RODRIGUEZ


          ORIG PROC:


          NO


          TRANSFER FROM:




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Case Detail                                                 http://www.search.txcourts.gov/Case.aspx?cn=1...
            TRANSFER IN:




            TRANSFER CASE:




            TRANSFER TO:




            TRANSFER OUT:




            PUB SERVICE:




          AP P E L L AT E BRIE F S


             DATE            EVENT TYPE                           DESCRIPTION   DOCUMENT

             09/17/2014      ADDITIONAL AUTHORITIES FILED         APPELLEE


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Case Detail                                                     http://www.search.txcourts.gov/Case.aspx?cn=1...
             DATE         EVENT TYPE                                   DESCRIPTION   DOCUMENT

             09/17/2014   ADDITIONAL AUTHORITIES FILED                 APPELLANT

             03/31/2014   SUPPLEMENTAL BRIEF FILED                     APPELLEE      SUPPLEMENTAL BRIEF         [ PDF/135 KB ]


                                                                                     BRIEF    [ PDF/74 KB ]
             03/24/2014   SUPPLEMENTAL BRIEF FILED                     APPELLANT
                                                                                     NOTICE     [ PDF/55 KB ]

             01/15/2014   APPENDIX RECEIVED                            APPELLEE

             01/15/2014   BRIEF RECEIVED - ORAL ARGUMENT REQUESTED     APPELLEE      NOTICE     [ PDF/56 KB ]


             01/15/2014   BRIEF FILED - ORAL ARGUMENT REQUESTED        APPELLEE      BRIEF    [ PDF/138 KB ]


             12/09/2013   LETTER BRIEF FILED                           STATE         BRIEF    [ PDF/60 KB ]

             10/21/2013   PETITION FOR WRIT OF MANDAMUS FILED          RELATOR

                                                                                     BRIEF    [ PDF/930 KB ]
             09/30/2013   BRIEF FILED - ORAL ARGUMENT REQUESTED        APPELLANT
                                                                                     NOTICE     [ PDF/55 KB ]




          CAS E E VE NT S


             DATE                 EVENT TYPE             DESCRIPTION       DISPOSITION              DOCUMENT


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Case Detail                                             http://www.search.txcourts.gov/Case.aspx?cn=1...
          DATE         EVENT TYPE            DESCRIPTION         DISPOSITION      DOCUMENT

                                                                                   CORRECTED PAGE 9

                       LETTER ISSUED    BY                                         [ PDF/34 KB ]
          06/23/2015
                       THE COURT                                                   NOTICE

                                                                                   [ PDF/117 KB ]


                                                                                   JUDGMENT

                                                                                   [ PDF/37 KB ]

                       MEMORANDUM                                                  MEMORANDUM OPINION
          06/18/2015                                             AFFIRMED
                       OPINION ISSUED                                              [ PDF/263 KB ]

                                                                                   NOTICE

                                                                                   [ PDF/114 KB ]

          09/17/2014   SUBMITTED

                       ADDITIONAL
          09/17/2014                         APPELLEE
                       AUTHORITIES FILED
                       ADDITIONAL
          09/17/2014                         APPELLANT
                       AUTHORITIES FILED

                       SET         FOR                                             NOTICE
          08/07/2014   SUBMISSION    ON      CORPUS CHRISTI
                                                                                   [ PDF/104 KB ]
                       ORAL ARGUMENT



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Case Detail                                           http://www.search.txcourts.gov/Case.aspx?cn=1...
          DATE         EVENT TYPE          DESCRIPTION         DISPOSITION      DOCUMENT

                       TELEPHONE INQUIRY
          05/02/2014   TO OR FROM THE
                       COURT

                       SUBMISSION                                                NOTICE
          05/02/2014
                       CANCELLED                                                 [ PDF/93 KB ]

                       SET         FOR                                           NOTICE
          04/14/2014   SUBMISSION    ON    CORPUS CHRISTI
                                                                                 [ PDF/104 KB ]
                       ORAL ARGUMENT

                       SUPPLEMENTAL                                              SUPPLEMENTAL BRIEF
          03/31/2014                       APPELLEE
                       BRIEF FILED                                               [ PDF/135 KB ]


                                                                                 BRIEF

                       SUPPLEMENTAL                                              [ PDF/74 KB ]
          03/24/2014                       APPELLANT
                       BRIEF FILED                                               NOTICE

                                                                                 [ PDF/55 KB ]

                       SUBMISSION
          02/27/2014                       CORPUS CHRISTI
                       CANCELLED

                                           JOINT - APPELLANT                     NOTICE
          02/27/2014   MOTION DISPOSED                         GRANT MOTION
                                           AND APPELLEE                          [ PDF/65 KB ]




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Case Detail                                            http://www.search.txcourts.gov/Case.aspx?cn=1...
          DATE         EVENT TYPE           DESCRIPTION         DISPOSITION      DOCUMENT

                                            JOINT - APPELLANT                     NOTICE
          02/27/2014   MOTION DISPOSED                          GRANT MOTION
                                            AND APPELLEE                          [ PDF/55 KB ]


                       MOTION         TO
                                            JOINT - APPELLANT
          02/21/2014   POSTPONE     ORAL
                                            AND APPELLEE
                       ARGUMENT FILED
                       MOTION        FOR
                       EXTENSION OF TIME
                                            JOINT - APPELLANT
          02/21/2014   TO            FILE
                                            AND APPELLEE
                       SUPPLEMENTAL
                       BRIEF FILED

                                                                                  ORDER PC

                                                                                  [ PDF/99 KB ]
          02/14/2014   ORDER ENTERED
                                                                                  NOTICE

                                                                                  [ PDF/92 KB ]


                       SET         FOR                                            NOTICE
          02/07/2014   SUBMISSION    ON     CORPUS CHRISTI
                                                                                  [ PDF/104 KB ]
                       ORAL ARGUMENT

                       MOTION FOR LEAVE                                           NOTICE
          01/30/2014                        APPELLEE            GRANT MOTION
                       DISPOSED                                                   [ PDF/55 KB ]




6 of 12                                                                              7/1/2015 12:33 PM
Case Detail                                              http://www.search.txcourts.gov/Case.aspx?cn=1...
          DATE         EVENT TYPE             DESCRIPTION         DISPOSITION      DOCUMENT

                       MOTION FOR LEAVE
          01/17/2014                          APPELLEE
                       FILED
                       BRIEF FILED - ORAL                                           BRIEF
          01/15/2014   ARGUMENT               APPELLEE
                                                                                    [ PDF/138 KB ]
                       REQUESTED

          01/15/2014   RECORD CHECKED IN      APPELLEE
          01/15/2014   APPENDIX RECEIVED      APPELLEE
                       BRIEF RECEIVED -                                             NOTICE
          01/15/2014   ORAL    ARGUMENT       APPELLEE
                                                                                    [ PDF/56 KB ]
                       REQUESTED
          01/13/2014   RECORD CHECKED IN

                       RECORD       CHECKED
          01/03/2014
                       OUT

                       TELEPHONE INQUIRY
          01/03/2014   TO OR FROM THE         APPELLEE
                       COURT

                                                                                    BRIEF
          12/09/2013   LETTER BRIEF FILED     STATE
                                                                                    [ PDF/60 KB ]


                       RECORD       CHECKED
          11/04/2013                          APPELLEE
                       OUT



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Case Detail                                            http://www.search.txcourts.gov/Case.aspx?cn=1...
          DATE         EVENT TYPE           DESCRIPTION         DISPOSITION          DOCUMENT

          11/01/2013   MOTION DISPOSED
          11/01/2013   MOTION DISPOSED
                       PETITION FOR WRIT
          10/21/2013   OF      MANDAMUS     RELATOR
                       FILED
          10/15/2013   DOCUMENT FILED       STATE

          10/15/2013   DOCUMENT FILED       STATE
          10/15/2013   DOCUMENT FILED       STATE

                                                                MOTION OR     WRIT   NOTICE
          10/02/2013   MOTION DISPOSED      APPELLANT
                                                                DENIED               [ PDF/54 KB ]

                       CASE READY TO BE
          09/30/2013
                       SET

                                                                                     BRIEF

                       BRIEF FILED - ORAL                                            [ PDF/930 KB ]
          09/30/2013   ARGUMENT             APPELLANT
                                                                                     NOTICE
                       REQUESTED
                                                                                     [ PDF/55 KB ]

          09/30/2013   RECORD CHECKED IN    STATE

          09/26/2013   RESPONSE FILED       APPELLEE


8 of 12                                                                                 7/1/2015 12:33 PM
Case Detail                                              http://www.search.txcourts.gov/Case.aspx?cn=1...
          DATE         EVENT TYPE             DESCRIPTION         DISPOSITION          DOCUMENT

                       RECORD       CHECKED
          09/25/2013                          STATE
                       OUT
                       RESPONSE
          09/11/2013   REQUESTED BY THE
                       COURT
                       MOTION        FOR
                       EXTENSION OF TIME                          MOTION OR     WRIT
          09/05/2013                          APPELLANT
                       TO    FILE  BRIEF                          GRANTED
                       DISPOSED
          08/27/2013   MOTION FILED           APPELLANT

                       MOTION           FOR
          08/27/2013   EXTENSION OF TIME      APPELLANT
                       TO FILE BRIEF FILED
                       MOTION TO ABATE                            MOTION OR     WRIT
          08/22/2013                          APPELLANT
                       APPEAL DISPOSED                            DENIED
          08/15/2013   RESPONSE FILED         APPELLANT

          08/14/2013   RESPONSE FILED         APPELLEE
                       MOTION TO ABATE
          08/06/2013                          APPELLANT
                       APPEAL FILED

                       CLERKS       RECORD
          07/31/2013
                       FILED



9 of 12                                                                                  7/1/2015 12:33 PM
Case Detail                                            http://www.search.txcourts.gov/Case.aspx?cn=1...
             DATE         EVENT TYPE           DESCRIPTION      DISPOSITION      DOCUMENT

                          EXTENSION OF TIME
             07/30/2013   TO   FILE  CLERKS    DISTRICT CLERK   GRANT MOTION
                          RECORD DISPOSED
                          EXTENSION OF TIME
             07/30/2013   TO   FILE   CLERKS   DISTRICT CLERK
                          RECORD FILED
                          REPORTERS RECORD
             07/23/2013
                          FILED
                          REPORTERS RECORD
             07/23/2013
                          RECEIVED NOT FILED
                          DOCKETING
             07/15/2013                        APPELLANT
                          STATEMENT FILED
                          NOTICE OF APPEAL
             07/03/2013   FILED IN COURT OF    APPELLANT
                          APPEALS




           CAL E NDARS




10 of 12                                                                            7/1/2015 12:33 PM
Case Detail                                             http://www.search.txcourts.gov/Case.aspx?cn=1...
              SET DATE                  CALENDAR TYPE                  REASON SET

              07/06/2015                STATUS                         MOTION FOR REHEARING DUE




           PART IE S


              PARTY                     PARTYTYPE                      REPRESENTATIVE

              RODRIGUEZ, JAVIER         APPELLEE                       HON. DONALD B. EDWARDS
                                                                       HON. MICHAEL W. GORDON
                                                                       HON. DOUGLAS K. NORMAN
              THE STATE OF TEXAS        CRIMINAL - APPELLANT
                                                                       HON. CLARISSA FERNANDEZ
                                                                       HON. MARK SKURKA




           T RIAL COURT INF ORMAT ION


             COURT:


             319TH DISTRICT COURT


             COUNTY:



11 of 12                                                                                7/1/2015 12:33 PM
Case Detail                             http://www.search.txcourts.gov/Case.aspx?cn=1...
           NUECES


           COURT JUDGE:


           HONORABLE THOMAS GREENWELL


           COURT CASE:


           11-CR-3843-G


           COURT REPORTER:




           PUNISHMENT:




12 of 12                                                             7/1/2015 12:33 PM
          APPENDIX 3.
Order Denying Motion to Reconsider.
OFFICIAL NOTICE
13TH COURT OF APPEALS                                          FILE COPY
100 E CANO ST 5TH FLOOR
EDINBURG TX 78539

October 2, 2013
Case No. 13-13-00335-CR
Style: THE STATE OF TEXAS
       v. JAVIER RODRIGUEZ

Appellant’s motion to reconsider motion to abate and remand in the
above cause was this day DENIED by this Court.


T.C. Case# 11-CR-3843-G                              DORIAN E. RAMIREZ, CLERK

                                CLARISSA FERNANDEZ
                                ASST. DISTRICT ATTORNEY
                                901 LEOPARD ST., ROOM 205
                     MAIL TO:   CORPUS CHRISTI, TX 78401
OFFICIAL NOTICE
13TH COURT OF APPEALS                                          FILE COPY
100 E CANO ST 5TH FLOOR
EDINBURG TX 78539

October 2, 2013
Case No. 13-13-00335-CR
Style: THE STATE OF TEXAS
       v. JAVIER RODRIGUEZ

Appellant’s motion to reconsider motion to abate and remand in the
above cause was this day DENIED by this Court.


T.C. Case# 11-CR-3843-G                              DORIAN E. RAMIREZ, CLERK

                                THE HONORABLE MARK SKURKA
                                DISTRICT ATTORNEY
                                901 LEOPARD STREET, ROOM 205
                     MAIL TO:   CORPUS CHRISTI, TX 78401
OFFICIAL NOTICE
13TH COURT OF APPEALS                                             FILE COPY
100 E CANO ST 5TH FLOOR
EDINBURG TX 78539

October 2, 2013
Case No. 13-13-00335-CR
Style: THE STATE OF TEXAS
       v. JAVIER RODRIGUEZ

Appellant’s motion to reconsider motion to abate and remand in the
above cause was this day DENIED by this Court.


T.C. Case# 11-CR-3843-G                               DORIAN E. RAMIREZ, CLERK

                                DONALD B. EDWARDS
                                ATTORNEY AT LAW
                                P.O. BOX 3302
                     MAIL TO:   CORPUS CHRISTI, TX   78463-3302
