      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-13-00503-CR



                                  The State of Texas, Appellant

                                                  v.

                                 Elle Obering O’Brien, Appellee


              FROM THE COUNTY COURT AT LAW NO. 5 OF TRAVIS COUNTY
                              NO. C-1-CR-11-217744
             HONORABLE NANCY WRIGHT HOHENGARTEN, JUDGE PRESIDING



                             MEMORANDUM OPINION


                 Following her arrest for the misdemeanor offense of driving while intoxicated,1

appellee Elle Obering O’Brien’s blood was drawn without a warrant pursuant to section 724.012(b)

of the Texas Transportation Code, commonly known as the mandatory-blood-draw statute.2 Prior

to trial, O’Brien filed a motion to suppress evidence relating to the results of the blood draw, which

the trial court granted following a hearing. In three points of error on appeal, the State asserts

that the trial court abused its discretion in granting the motion to suppress. We will affirm the

trial court’s order.




        1
            See Tex. Penal Code §§ 49.04(b).
        2
            See Tex. Transp. Code § 724.012(b).
                                        BACKGROUND

               At the hearing on the motion to suppress, the trial court heard evidence that

on October 23, 2011, at approximately 1:48 a.m., Austin Police Department (APD) Officer

Matthew Paredes and his partner Gabriel Vasquez had responded to a call of a disturbance at a fast-

food restaurant in South Austin. Officer Paredes testified that when he and Vasquez arrived at

the restaurant, they encountered three women, later identified as O’Brien; O’Brien’s friend,

Wynonah Bearden; and Lidia Aviles-Martinez, a restaurant employee. According to Paredes, Aviles-

Martinez was attempting to assist Bearden, who was crying hysterically and claiming that her face

had been sprayed with mace or pepper spray. After calling EMS and attempting to calm Bearden,

Paredes spoke with O’Brien in order to ascertain what had happened. Paredes testified that O’Brien

told him that she and Bearden had been at a club downtown when “some group sprayed them with

pepper spray,” prompting them to leave the club. According to Paredes, during his conversation with

O’Brien, she provided conflicting accounts of how she and Bearden had arrived at the restaurant,

including that they had driven there themselves, that O’Brien’s boyfriend had driven them to

the restaurant and dropped them off there, and that they had walked to the restaurant from a parking

lot down the street. Paredes added that O’Brien kept attempting to “walk away” from him as he

spoke with her.

               Meanwhile, Paredes recounted, he and Vasquez had received a call from dispatch

that there had been a hit-and-run accident downtown involving a pedicab and a black BMW.

Paredes testified that Aviles-Martinez, the restaurant employee, had told Vasquez that O’Brien and

Bearden had arrived at the restaurant in a black BMW and that O’Brien had been driving the vehicle.

Aviles-Martinez then directed the officers to the vehicle, which was located in a parking space

                                                 2
at the restaurant. Paredes testified that when he and Vasquez examined the BMW, it matched the

description of the vehicle that had been identified in the accident, including the license-plate number.

Paredes then called the pedicab driver and received more information concerning the collision,

including that it had involved an injury to the pedicab passenger, who had been transported

to a hospital for treatment. From that point forward, Paredes recounted, he treated O’Brien as a

DWI suspect.

                Paredes testified that during his interview with O’Brien, she admitted to having

“a few shots of whiskey” that night. Paredes also testified that he noticed an odor of alcohol on

O’Brien’s breath. Paredes then proceeded to administer to O’Brien the standardized field sobriety

tests and, based on her performance on those tests, came to the conclusion that O’Brien was

intoxicated. At approximately 2:34 a.m.,3 Paredes arrested O’Brien for driving while intoxicated and

subsequently requested a sample of her breath or blood. According to Paredes, O’Brien refused.

                Following the arrest, Paredes did not immediately transport O’Brien to the

Travis County Jail. Instead, Paredes testified, he and Vasquez waited for Bearden’s boyfriend to

arrive at the restaurant to drive her home. As they waited, Paredes called the pedicab passenger at

the hospital and asked her to provide details concerning the collision and the extent of her injuries.

Also as they waited, the officers proceeded to inventory the BMW, which, Paredes explained,

“took longer than usual because there was pepper spray all along the passenger side of the vehicle.”

After the inventory of the vehicle was complete, Paredes recounted, Bearden’s boyfriend still


       3
          A video recording of the investigation and arrest, taken from the dashboard camera of
Paredes’s patrol car, was admitted into evidence at the suppression hearing. The recording reflects
2:34 a.m. as the time of arrest.


                                                   3
had not arrived at the restaurant. Beginning to suspect that the boyfriend would not arrive, but not

wanting to leave Bearden alone at the restaurant because she too appeared to be intoxicated, Paredes

proceeded to arrest Bearden for public intoxication and placed her in the back of his patrol car along

with O’Brien. The officers then left the restaurant at approximately 3:08 a.m.

                Paredes also testified that, in addition to him and Vasquez, a third officer,

Brandon Bullock, was present at the restaurant during most of the investigation. According to

Paredes, Officer Bullock, who had arrived at the restaurant in his own patrol car, was capable of

making arrests, inventorying a vehicle, and calling EMS to investigate the collision. Paredes

could not remember whether Bullock was still at the restaurant when he and Vasquez departed

for the jail, but he believed that Bullock might have “left either while I was still there or we left at

the same time.”

                Paredes and Vasquez arrived at the Travis County Jail at approximately 3:15 a.m.4

According to Paredes, once they arrived, the jail “was busy because it was a Saturday night,” and

they had to “wait outside for a little bit” before Paredes could get inside the jail and complete the

paperwork for obtaining a mandatory blood draw. When O’Brien’s blood was finally drawn, Paredes

recounted, it was approximately 4:44 a.m. Paredes testified that he did not seek a warrant in this

case because the Transportation Code allowed him to proceed without one. However, Paredes also

testified that he had on other occasions obtained search warrants for a person’s blood. When asked

how long it takes him to obtain a blood-draw warrant in a “typical DWI” case, Paredes testified that

it usually takes him between 60 and 90 minutes. Paredes agreed with the prosecutor that it takes him



       4
           Paredes testified that the distance between the restaurant and the jail was 1.5 miles.

                                                   4
“quite a bit longer” than that when there is a collision to investigate, although he did not elaborate

on how much longer. According to Paredes, the process for obtaining a warrant involved contacting

a detective or supervisor to “write up the warrant” and then waiting at the jail while the detective

or supervisor “goes to the judge and gets it signed.” On cross-examination, Paredes acknowledged

that whether he seeks a blood draw with or without a search warrant, he is required to complete a

similar amount of paperwork.

               Judge Ronald Meyerson, a magistrate and associate judge with the City of Austin,

testified that there is a magistrate available at the jail 24 hours per day and that one of the

magistrate’s duties is to sign search warrants. According to Judge Meyerson, it usually takes him

three to five minutes to review the warrant prior to signing it.

               After taking the matter under advisement, the trial court granted the motion to

suppress and made findings of fact and conclusions of law, including the following:


       Officer Paredes had probable cause to arrest Elle O’Brien for the offense of Driving
       While Intoxicated.

       There were no exigent circumstances that prevented Officer Paredes from obtaining
       a search warrant prior to the blood draw.

       The blood draw from Elle O’Brien pursuant to Section 724.012 of the
       Texas Transportation Code does not comply with the 4th Amendment of the
       U.S. Constitution and is thereby inadmissible. Missouri v. McNeely, 133 S. Ct. 1552
       (2013).


This appeal by the State followed.




                                                  5
                                    STANDARD OF REVIEW

               We review a trial court’s ruling on a motion to suppress for abuse of discretion.5

We are to view the record “in the light most favorable to the trial court’s determination, and the

judgment will be reversed only if it is arbitrary, unreasonable, or ‘outside the zone of reasonable

disagreement.’”6 “We will sustain the lower court’s ruling if it is reasonably supported by the

record and is correct on any theory of law applicable to the case.”7 “The appellate court must apply

a bifurcated standard of review, giving almost total deference to a trial court’s determination of

historic facts and mixed questions of law and fact that rely upon the credibility of a witness, but

applying a de novo standard of review to pure questions of law and mixed questions that do not

depend on credibility determinations.”8 In this case, we review de novo the trial court’s application

of the law of search and seizure to the facts.9




       5
         State v. Story, 445 S.W.3d 729, 732 (Tex. Crim. App. 2014) (citing State v. Dixon,
206 S.W.3d 587, 590 (Tex. Crim. App. 2006)).
       6
         Id. (quoting Dixon, 206 S.W.3d at 590); see Montgomery v. State, 810 S.W.2d 372, 391-92
(Tex. Crim. App. 1991) (op. on reh’g)).
       7
        Dixon, 206 S.W.3d at 590 (citing Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim.
App. 1990)).
       8
           Martinez v. State, 348 S.W.3d 919, 922-23 (Tex. Crim. App. 2011) (citing Guzman
v. State, 955 S.W.2d 85, 87-89 (Tex. Crim. App. 1997)).
       9
          See Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2011); Thompson v. State,
408 S.W.3d 614, 621 (Tex. App.—Austin 2013, no pet.); see also State v. Villarreal, 475 S.W.3d
784, 798 (Tex. Crim. App. 2014) (“[B]ecause the facts are undisputed and the questions before
us are matters of law, we apply a de novo standard of review.”); Kothe v. State, 152 S.W.3d 54, 62
(Tex. Crim. App. 2004) (“On appeal, the question of whether a specific search or seizure is
‘reasonable’ under the Fourth Amendment is subject to de novo review. Despite its fact-sensitive
analysis, ‘reasonableness’ is ultimately a question of substantive Fourth Amendment law.”).

                                                  6
                                              ANALYSIS

Exigent circumstances

                We first address the State’s third point of error, in which it asserts that the trial court

erred in concluding that “[t]here were no exigent circumstances that prevented Officer Paredes

from obtaining a search warrant prior to the blood draw.” The State contends that, contrary to

the trial court’s finding, there were exigent circumstances in this case, including what the State

characterizes as “unusual” circumstances surrounding the DWI investigation at the restaurant, the

related investigation of the collision downtown, and the delay once the officers arrived at the jail.

                The drawing of a person’s blood is considered a search under the

Fourth Amendment.10 Accordingly, a blood draw generally requires a search warrant, unless a

“recognized exception” to the warrant requirement applies.11 “‘One well-recognized exception,’ and

the one at issue in this case, ‘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.’”12 One such exigent circumstance is preventing the destruction of evidence

or contraband.13 In DWI cases, the evidence that is at risk of destruction is a suspect’s blood-alcohol

content, which “begins to diminish shortly after drinking stops, as the body functions to eliminate




       10
            See Schmerber v. California, 384 U.S. 757, 769 (1966).
       11
            See Missouri v. McNeely, 133 S. Ct. 1552, 1558 (2013).
       12
            Id. (quoting Kentucky v. King, 563 U.S. 452, 460 (2011)).
       13
            See Gutierrez v. State, 221 S.W.3d 680, 685 (Tex. Crim. App. 2007) (citing McNairy
v. State, 835 S.W.2d 101, 107 (Tex. Crim. App. 1991)).

                                                    7
it from the system.”14 Accordingly, the Supreme Court has held that the warrantless collection of

blood from a DWI suspect does not violate the Fourth Amendment in cases “when the officer

might reasonably have believed that he was confronted with an emergency, in which the delay

necessary to obtain a warrant, under the circumstances, threatened ‘the destruction of evidence.’”15

                  More recently, however, the Supreme Court has clarified its holding in Schmerber,

rejecting the argument that “the natural metabolization of alcohol in the bloodstream presents a

per se exigency that justifies an exception to the Fourth Amendment’s warrant requirement for

nonconsensual blood testing in all drunk driving cases.”16 Instead, the Court has held, “exigency in

this context must be determined case by case based on the totality of the circumstances.”17 Although

“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,” in other cases, “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.”18 This is because “some delay between the time of the arrest or accident

and the time of the test is inevitable regardless of whether police officers are required to obtain

       14
            Schmerber, 384 U.S. at 770.
       15
           Id. (quoting Preston v. United States, 376 U.S. 364, 367 (1964)). For example, in
Schmerber, “time had to be taken to bring the accused to a hospital and to investigate the scene of
the accident,” and “there was no time to seek out a magistrate and secure a warrant.” Id. at 770-71.
       16
            McNeely, 133 S. Ct. 1552 at 1556.
       17
            Id.
       18
           Id.; see also McDonald v. United States, 335 U.S. 451, 456 (1948) (“We cannot . . .
excuse the absence of a search warrant without a showing by those who seek exemption from the
constitutional mandate that the exigencies of the situation made [the search] imperative.”)

                                                  8
a warrant.”19 If, under the circumstances of the case, “the warrant process will not significantly

increase the delay before the blood test is conducted,” there can be “no plausible justification for an

exception to the warrant requirement.”20

                  As with other warrantless searches, the burden is on the State to prove that the

warrantless blood draw was reasonable under the totality of the circumstances.21 “We apply an

objective standard of reasonableness in determining whether a warrantless search is justified, taking

into account the facts and circumstances known to the police at the time of the search.”22

                  In this case, the record supports the trial court’s conclusion that the warrantless blood

draw was not justified by exigent circumstances. Officer Paredes testified that the reason he did

not obtain a warrant was because the Transportation Code and APD policy allowed him to proceed

without one; he did not testify that he declined to pursue a warrant because of any exigent

circumstances. Nevertheless, the State claims that there were exigent circumstances in this case

arising from what it characterizes as an “unusual” DWI investigation that delayed the officers at the

restaurant, including the “uncooperative” behavior of O’Brien and Bearden during the investigation

and the need to investigate the collision over the phone. However, the focus of the exigent-

circumstances analysis is not on the delay attendant to an investigation but on “the delay necessary




       19
            McNeely, 133 S. Ct. at 1561.
       20
            Id.
       21
         See Amador v. State, 221 S.W.3d 666, 672-73 (Tex. Crim. App. 2007); Ford v. State,
158 S.W.3d 488, 492 (Tex. Crim. App. 2005).
       22
         Colburn v. State, 966 S.W.2d 511, 519 (Tex. Crim. App. 1998); State v. Anderson,
445 S.W.3d 895, 910 (Tex. App.—Beaumont 2014, no pet.).

                                                     9
to obtain a warrant.”23 Here, the record supports the trial court’s finding that the delay necessary

to obtain a warrant would not have “significantly undermined the efficacy” of the blood draw.

O’Brien’s blood was drawn at the jail, where, according to the evidence presented, there is a

magistrate available 24 hours per day who has the ability to review and sign search warrants. Officer

Paredes testified that the total amount of time it usually takes him to obtain a warrant at the jail

is between 60 and 90 minutes. Although Paredes answered in the affirmative when the prosecutor

asked him whether it takes “quite a bit longer” to obtain a warrant when there is a collision involved,

Paredes did not specify how much longer it would take, and there is nothing in the record to suggest

that it would have taken him so much longer that the blood draw would have been “significantly

delayed.” In fact, Paredes testified that the paperwork he would have been required to complete in

order to obtain a warrant in this case would have been similar to the paperwork he was already

required to complete in order to obtain a warrantless blood draw.

               Moreover, even without a warrant, O’Brien’s blood was not drawn until 4:44 a.m.,

over two hours after O’Brien had been arrested. The trial court could have reasonably inferred that

O’Brien’s blood could have been drawn in approximately the same amount of time if Paredes had

transported O’Brien to the jail immediately after her arrest at 2:34 a.m. (instead of waiting at the

restaurant) and had begun the process for obtaining a warrant immediately upon his arrival at the jail


       23
           Schmerber, 384 U.S. at 770; see McNeely, 133 S. Ct. at 1563, (“[E]xigent circumstances
justifying a warrantless blood sample may arise in the regular course of law enforcement due
to delays from the warrant application process.”); Cole v. State, 454 S.W.3d 89, 103
(Tex. App.—Texarkana 2014, pet. granted) (“As in McNeely and Schmerber, our exigent
circumstances analysis should focus on the delay attendant to obtaining a warrant, i.e., whether
the State showed that, under the circumstances, the police could not reasonably obtain a warrant.”);
see also Turrubiate v. State, 399 S.W.3d 147, 151 (Tex. Crim. App. 2013) (observing that State has
burden to show “exigent circumstances . . . made obtaining a warrant impracticable”).

                                                  10
(instead of waiting outside the jail). This was not a case in which Paredes was acting alone and no

other officers were available to assist him.24 Paredes testified that, in addition to his partner, there

was a third officer at the restaurant during the investigation and that this officer was capable of

making arrests, inventorying vehicles, and investigating the collision over the phone as Paredes

had been doing. Thus, the trial court could have reasonably found that this other officer could have

inventoried the BMW, arrested Bearden for public intoxication or waited for her boyfriend to arrive,

and continued to investigate the collision, while Paredes and Vasquez transported O’Brien to the jail.

Once at the jail, the trial court could have further found, Paredes could have begun the process

for securing a warrant while Vasquez waited outside the jail with O’Brien. Additionally, Paredes

testified that it would have been possible for him to call the jail prior to his arrival and notify

jail officials that he would be requesting a blood draw, which, the trial court could have

reasonably inferred, could have further reduced the delay once Paredes arrived at the jail. Under

these circumstances, the trial court could have reasonably found, Paredes could have obtained a

warrant without “significantly increasing the delay” in drawing O’Brien’s blood. On this record, the

trial court did not err in concluding that there were no exigent circumstances sufficient to justify

dispensing with the warrant requirement.25 We overrule the State’s third point of error.


       24
            Cf. Pearson v. State, No. 13-11-00137-CR, 2014 Tex. App. LEXIS 2514, at *10-11
(Tex. App.—Corpus Christi Mar. 6, 2014, pet. ref’d) (mem. op., not designated for publication)
(concluding that there were exigent circumstances present when officer testified that he was “the
only officer on duty,” was “solely responsible for securing the scene of the accident,” and had to wait
“at least three hours to obtain a warrant from a judge”).
       25
           See McNeely, 133 S. Ct. at 1561; Roop v. State, ___ S.W.3d ___, No. 03-13-00141-CR,
2016 Tex. App. LEXIS 1541, at *14-15 (Tex. App.—Austin Feb. 17, 2016, no pet. h.)
(op., designated for publication) (explaining that burden is on State to prove that officer’s decision
to not seek warrant was result of exigent circumstances); Huff v. State, 467 S.W.3d 11, 33-34

                                                  11
Constitutionality of warrantless blood draw

                We next address the State’s second point of error, in which it asserts that the

trial court erred in concluding that the warrantless blood draw did not comply with the

Fourth Amendment. In the State’s view, even in the absence of exigent circumstances, the blood

draw was constitutionally permissible because it was authorized by the mandatory-blood-draw

statute, section 724.012 of the Texas Transportation Code,26 and because O’Brien “impliedly

consented” to the blood draw.27




(Tex. App.—San Antonio 2015, pet. filed) (finding no exigent circumstances when officer testified
that he did not obtain warrant because “it was simply not the practice of San Antonio police officers
to obtain a warrant under circumstances such as those presented in this case”); Cole, 454 S.W.3d
at 103 (concluding that exigent-circumstances exception did not apply when “no attempt was made
to obtain warrant,” other police officers were available to assist arresting officer, and obtaining
warrant would not have significantly delayed blood draw); Gore v. State, 451 S.W.3d 182, 197-98
(Tex. App.—Houston [14th Dist.] 2014, pet. ref’d) (concluding that exigent-circumstances exception
did not apply when there were “at least two officers on the scene,” arresting officer testified that
he did not believe warrant was necessary, and there was no evidence of how long it would have
taken to obtain warrant); Sutherland v. State, 436 S.W.3d 28, 40-41 (Tex. App.—Amarillo 2014,
pet. ref’d) (concluding, in case transferred from this Court, that exigent-circumstances exception did
not apply when record reflected that “the procedures in place at the Travis County central booking
facility have been implemented to streamline the warrant application process” and observing that
“the time to complete the warrant application process is not overly burdensome”); Forsyth v. State,
438 S.W.3d 216, 220 (Tex. App.—Eastland 2014, pet. ref’d) (concluding that exigent-circumstances
exception did not apply when, even though officer testified that warrant process could take
90 minutes, “there was no evidence presented by the State in this particular case of how long
[officer] would have had to wait on a warrant”).
       26
            See Tex. Transp. Code § 724.012(b)(1)(C).
       27
           See id. § 724.011(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, . . 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 for analysis to determine the alcohol concentration or the
presence in the person’s body of a controlled substance, drug, dangerous drug, or other substance.”).

                                                 12
                  After the parties filed their briefs, the Texas Court of Criminal Appeals

decided State v. Villarreal, a case that addressed whether warrantless, mandatory blood draws

violate the Fourth Amendment.28 In Villarreal, the Court of Criminal Appeals held that “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 Amendment.”29

The court explained that the Transportation Code provisions on which the State relied to excuse

compliance with the warrant requirement “do not, taken by themselves, form a constitutionally valid

alternative to the Fourth Amendment warrant requirement,” and the court “reject[ed] the State’s

assertion that a warrantless, nonconsensual blood draw conducted pursuant to those provisions can

fall under one of the established exceptions to the warrant requirement.”30

                  The Villarreal court “further reject[ed] the State’s suggestion”—similar to

the argument raised by the State here—“that such a search may be upheld under a general

Fourth Amendment balancing test.”31 Although the court “agree[d] with the State’s contention

that the government has a substantial interest in preventing drunk driving,” it “disagree[d] that a

balancing test is appropriate given the context” of “an active criminal investigation, [] when the

primary goal of law-enforcement activity is the gathering of evidence.”32 In that context, the court

       28
            See 475 S.W.3d at 787.
       29
            Id. at 815.
       30
            Id. at 813.
       31
            Id.
       32
            Id. at 808-09.

                                                13
observed, the United States Supreme Court has repeatedly held that “a warrantless search of a

person is unreasonable unless it falls within an established exception to the warrant requirement.”33

The court “decline[d] to disregard this well-established principle in favor of a more generalized

balancing-of-interests test.”34

                   The Villarreal court also rejected the State’s contention that a suspect’s

“implied consent” to a blood draw obviates the need to obtain a warrant. The court explained that

“to constitute a valid waiver of Fourth Amendment rights through consent, a suspect’s consent

to search must be freely and voluntarily given,” and the suspect must possess “the ability to limit

or revoke it.”35 According to the court, “[i]t would be wholly inconsistent with these principles

to uphold the warrantless search of a suspect’s blood on the basis of consent when a suspect has, as

in the present case, expressly and unequivocally refused to submit to the search.”36 “That explicit

refusal to submit to blood testing,” the court concluded, “overrides the existence of any implied

consent, and, unless some other justification for the search applies, there remains no valid basis for

conducting a warrantless search under those circumstances.”37




       33
          Id. at 809 (citing Riley v. California, 134 S. Ct. 2473, 2482 (2014); McNeely, 133 S. Ct.
at 1558; Skinner v. Railway Labor Execs. Ass’n, 489 U.S. 602, 619 (1989)).
        34
             Id.
        35
             Id. at 799.
        36
             Id. at 800.
        37
             Id.

                                                 14
                   This Court and others have repeatedly followed Villarreal and rejected the arguments

that the State raises here.38 Consistent with the precedent established in these cases, we overrule the

State’s second point of error.


Applicability of exclusionary rule

                   Finally, we address the State’s first point of error, in which it asserts that, “[e]ven

if the police had violated O’Brien’s constitutional rights, the exclusionary rule does not apply.”

The State focuses its argument almost entirely on the federal exclusionary rule, which is a

judicially created remedy that requires the suppression of evidence obtained in violation of the

Fourth Amendment.39 As the State observes, there are exceptions to the federal rule based on an

officer’s good-faith reliance on the law as it existed at the time of the officer’s actions.40



          38
          See State v. Molden, ___ S.W.3d ___, No. 03-14-00166-CR, 2016 Tex. App. LEXIS 1539,
at *4-9 (Tex. App.—Austin Feb. 17, 2016, pet. filed) (op., designated for publication); State v. Hill,
___ S.W.3d ___, No. 03-13-00834-CR, 2016 Tex. App. LEXIS 1540, at *3-8 (Tex. App.—Austin
Feb. 17, 2016, no pet. h.) (op., designated for publication); Roop, 2016 Tex. App. LEXIS 1541,
at *11-13; see also State v. Ayala, No. 03-14-00651-CR, 2016 Tex. App. LEXIS 2166, at *6-10
(Tex. App.—Austin Mar. 2, 2016, pet. filed) (mem. op., not designated for publication);
State v. Munoz, 474 S.W.3d 8, 13-14 (Tex. App.—El Paso 2015, pet. ref’d); State v. Tercero,
467 S.W.3d 1, 6-9 (Tex. App.—Houston [1st Dist.] 2015, pet. ref’d); Chidyausiku v. State,
457 S.W.3d 627, 630-31 (Tex. App.—Fort Worth 2015, pet. filed); State v. Garcia, 457 S.W.3d
546, 547-48 (Tex. App.—San Antonio 2015, pet. filed); Lloyd v. State, 453 S.W.3d 544, 546-48
(Tex. App.—Dallas 2014, pet. ref’d).
          39
               See Arizona v. Evans, 514 U.S. 1, 10 (1995); United States v. Leon, 468 U.S. 897, 906
(1984).
          40
           See Davis v. United States, 131 S. Ct. 2419, 2423–24 (2011) (holding that “[e]vidence
obtained during a search conducted in reasonable reliance on binding precedent is not subject to the
exclusionary rule”); Illinois v. Krull, 480 U.S. 340, 360 (1987) (holding that evidence obtained by
officer acting in good-faith reliance on statute that is later determined to be unconstitutional is not
subject to exclusionary rule).

                                                     15
                However, in her motion to suppress, O’Brien sought to exclude the evidence pursuant

to the Texas exclusionary rule, which provides that “[n]o evidence obtained by an officer or other

person in violation of any provisions of the Constitution or laws of the State of Texas, or of the

Constitution or laws of the United States of America, shall be admitted in evidence against the

accused on the trial of any criminal case.”41 It is well established that the Texas exclusionary rule

is broader in scope and provides more protection to a suspect than its federal counterpart.42 The

Legislature has authorized only one exception to this rule: “It is an exception to the provisions of

Subsection (a) of this Article that the evidence was obtained by a law enforcement officer acting in

objective good faith reliance upon a warrant issued by a neutral magistrate based on probable

cause.”43 There is no exception to the Texas exclusionary rule based on an officer’s compliance

with the law as it existed at the time of the search or his good-faith reliance on anything other

than a warrant. In this case, it is undisputed that there was no warrant. Consequently, the exception

to article 38.23 does not apply here, as this and other Texas courts have repeatedly held in




       41
            Tex. Code Crim. Proc. art. 38.23(a).
       42
           See Wilson v. State, 311 S.W.3d 452, 458-59 (Tex. Crim. App. 2010); Miles v. State,
241 S.W.3d 28, 34 (Tex. Crim. App. 2007); Melendez v. State, 467 S.W.3d 586, 592
(Tex. App.—San Antonio 2015, no pet.); Tercero, 467 S.W.3d at 10; see also 40 George E. Dix &
John M. Schmolesky, Texas Practice Series: Criminal Practice and Procedure § 7.10 (3d ed. 2011)
(“Article 38.23 of the Code of Criminal Procedure imposes what is probably the broadest state
exclusionary requirement of any American jurisdiction.”); 1 C. McCormick & R. Ray, Texas Law
of Evidence, § 473 (2d ed. 1956) (“The Texas [exclusionary] statute lays down a rule far broader
than that existing in any other state and goes much beyond the doctrine of the [federal] cases.”).
       43
            Tex. Code Crim. Proc. art. 38.23(b) (emphasis added).

                                                   16
similar mandatory-blood-draw cases.44 Because the blood-draw evidence in this case was obtained

in violation of the Fourth Amendment to the United States Constitution, we cannot conclude that the

district court abused its discretion in suppressing the evidence pursuant to the Texas exclusionary

rule.45 We overrule the State’s first point of error.




       44
           See, e.g., Molden, 2016 Tex. App. LEXIS 1539, at *12-14; Hill, 2016 Tex. App. LEXIS
1540, at *11-13; Roop, 2016 Tex. App. LEXIS 1541, at *16-17; Munoz, 474 S.W.3d at 16;
Tercero, 467 S.W.3d at 10-11; Burks v. State, 454 S.W.3d 705, 709 (Tex. App.—Fort Worth 2015,
pet. ref’d); Anderson, 445 S.W.3d at 912; Forsyth, 438 S.W.3d at 224-25; see also State v. Esher,
No. 05-14-00694-CR, 2015 Tex. App. LEXIS 7722, at *10-11 (Tex. App.—Dallas July 27, 2015,
no pet.) (mem. op., not designated for publication); Gentry v. State, No. 12-13-00168-CR, 2014 Tex.
App. LEXIS 9538, at *6-7 (Tex. App.—Tyler Aug. 27, 2014, pet. ref’d) (mem. op., not designated
for publication); Fitzgerald v. State, No. 04-13-00662-CR, 2014 Tex. App. LEXIS 8208, at *6
(Tex. App.—San Antonio July 30, 2014, pet. ref’d) (mem. op., not designated for publication).
       45
            We note that the applicability of the exclusionary rule to evidence obtained from a
warrantless, mandatory blood draw is an issue that is currently pending before the Court of Criminal
Appeals. See Cole, 454 S.W.3d at 89. But unless and until that court instructs us otherwise, we
adhere to the exception to the Texas exclusionary rule that the Legislature has expressly authorized.
See State v. Daugherty, 931 S.W.2d 268, 270 (Tex. Crim. App. 1996) (“But Article 38.23 already
contains one express exception, see Subsection (b) thereof, and according to the rules of statutory
construction, where a statute contains an express exception, its terms must apply in all cases
not excepted.”); Garcia v. State, 829 S.W.2d 796, 800 (Tex. Crim. App. 1992) (“Certainly, the
Legislature has the prerogative to amend Article 38.23 to enact the specific exception to its rule if
it chooses. Until that time, however, we must enforce the statute as written, excluding all illegally
obtained evidence, with the single exception as set out in the statute.”); see also 67 Tex. Jur. 3d
Statutes § 117 (2015) (“In construing a statute, it is not ordinarily permissible to imply an exception,
proviso, or restriction or to enlarge an exception so as to include cases not within its terms.”).
Cf. Wehrenberg v. State, 416 S.W.3d 458, 470-71 (Tex. Crim. App. 2013) (concluding that
“independent source doctrine” may be basis for admitting otherwise inadmissible evidence because
that doctrine “is consistent with the plain terms of the Texas exclusionary rule”); State v. Johnson,
871 S.W.2d 744, 750-51 (Tex. Crim. App. 1994) (reaching similar conclusion regarding “attenuation
of taint” doctrine).

                                                  17
                                       CONCLUSION

              We affirm the trial court’s order granting the motion to suppress.



                                            __________________________________________

                                            Bob Pemberton, Justice

Before Justices Pemberton, Field, and Bourland

Affirmed

Filed: April 7, 2016

Do Not Publish




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