                                                                                     ACCEPTED
                                                                                03-14-00189-CR
                                                                                       4280206
                                                                      THIRD COURT OF APPEALS
                                                                                 AUSTIN, TEXAS
                                                                           2/25/2015 1:59:55 PM
March 4, 2015                                                                 JEFFREY D. KYLE
                                                                                         CLERK
                               No. 03-14-00189-CR

                                   In the                  RECEIVED IN
                                                      3rd COURT OF APPEALS
                           COURT OF APPEALS               AUSTIN, TEXAS
                                  For the             2/25/2015 1:59:55 PM
                  THIRD SUPREME JUDICIAL DISTRICT JEFFREY D. KYLE
                                 at Austin                    Clerk
                  ______________________________________

                 On Appeal from the 26th Judicial District Court of
                           Williamson County, Texas
                         Cause Number 12-2076-K26
                  ______________________________________

                   FRED ROBERT SCHNEIDER, Appellant
                                     v.
                      THE STATE OF TEXAS, Appellee
                   _____________________________________

                           APPELLANT’S BRIEF
                   _____________________________________



  Counsel for Appellant                      KRISTEN JERNIGAN
  Fred Robert Schneider                      ATTORNEY AT LAW
                                             STATE BAR NUMBER 90001898
                                             207 S. AUSTIN AVE.
                                             GEORGETOWN, TEXAS 78626
                                             (512) 904-0123
                                             (512) 931-3650 (FAX)
                                             Kristen@txcrimapp.com



                      ORAL ARGUMENT REQUESTED
                        IDENTIFICATION OF PARTIES

      Pursuant to Texas Rule of Appellate Procedure 38.1, a complete list of the
names of all interested parties is provided below so the members of this Honorable
Court may at once determine whether they are disqualified to serve or should
recuse themselves from participating in the decision of this case.

Appellant:

Fred Robert Schneider

Counsel for Appellant:

Shawn Dick
Steve Hesse
215 W. University Ave.
Georgetown, Texas 78626

Kristen Jernigan
207 S. Austin Ave.
Georgetown, Texas 78626

Counsel for Appellee, The State of Texas:

Jana Duty
Williamson County District Attorney

Geoffrey Puryear
Lauren McLeod
Assistant District Attorneys
405 Martin Luther King
Georgetown, Texas 78626

Trial Court Judge:

The Honorable Billy Ray Stubblefield



                                        ii
                                     TABLE OF CONTENTS

IDENTIFICATION OF PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

STATEMENT REGARDING ORAL ARGUMENT . . . . . . . . . . . . . . . . . . . . . . vii

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2

ISSUES PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8

SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

ARGUMENT & AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9

        1.       The trial court erred in denying Appellant’s Motion to Suppress
                 where Appellant’s blood was drawn without a warrant in
                 violation of the United States Supreme Court’s holding in
                 Missouri v. McNeely, 133 S.Ct. 1522 (2013).

        2.       Appellant suffered some harm when the jury was not instructed
                 that it could disregard the results of the blood draw in this case
                 if it determined Appellant’s blood was drawn without a warrant
                 and without a showing of exigent circumstances.

        3.       Appellant’s conviction violates his protection against Ex Post
                 Facto laws in violation of Article I, Section 16 of the Texas
                 Constitution.

PRAYER FOR RELIEF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .33

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .34

CERTIFICATE OF WORD COUNT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .34

                                                      iii
                                 INDEX OF AUTHORITIES

CASES

Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) . . . . . . . . . . 28, 29

Amador v. State, 275 S.W.3d 872, 878 (Tex. Crim. App. 2009) . . . . . . . . . . . . . . 14

Barrios v. State, 283 S.W.3d 348 (Tex. Crim. App. 2009) . . . . . . . . . . . . . . . . . . 28

Carmell v. Texas, 529 U.S. 513, 522-25 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . .30

Douds v. State, 434 S.W.3d 842
            (Tex. App.—Houston [14th Dist.] 2014, pet. granted) . . . . . 20, 23, 26

Evans v. State, No. 14-13-00642-CR (Tex. App.—Houston [14th Dist.]
                   delivered February 10, 2015) . . . . . . . . . . . . . . . . . . . . . . . . . .21

Gore v. State, No 01-13-00608-CR (Tex. App.—Houston [1st Dist.]
                   delivered November 13, 2014) . . . . . . . . . . . . 12, 13, 17, 18, 21

Holmes v. State, 323 S.W.3d 163, 173–74 (Tex. Crim. App. 2010) . . . . . . . . . . . 27

Leal v. State, No. 14-13-00208-CR
      (Tex. App.—Houston [1st Dist.], delivered November 13, 2014) . . 13, 17, 27

Miranda v. Arizona, 384 U.S. 436 (1966) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Missouri v. McNeely, 133 S.Ct. 1522 (2013) . . . . . . . . . . . . . . . .8, 9, 10, 21, 26, 29

Richards v. Wisconsin, 520 U.S. 385 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Roaden v. Kentucky, 413 U.S. 496, 505 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Schmerber v. California, 384 U.S. 757 (1966) . . . . . . . . . . . . . . . . . . . . . . . . . . . .11

State of Texas v. Villarreal, No. PD-0306-14
       (Tex. Crim. App., delivered November 26, 2014) . . . . . . . . . . . . . . . . .12, 16

                                                   iv
STATUTES AND RULES
TEX. CONST. Art. I, § 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .30

TEX. PENAL CODE § 49.09 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30, 31, 32, 33

TEX. R. APP. P. 33.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .23




                                                          v
              STATEMENT REGARDING ORAL ARGUMENT

      Pursuant to Texas Rule of Appellate Procedure 39.1, Appellant requests oral

argument in this case.




                                       vi
                                No. 03-14-00189-CR

                                   In the
                           COURT OF APPEALS
                                  For the
                  THIRD SUPREME JUDICIAL DISTRICT
                                 at Austin
                  ______________________________________

                 On Appeal from the 26th Judicial District Court of
                           Williamson County, Texas
                         Cause Number 12-2076-K26
                  ______________________________________

                   FRED ROBERT SCHNEIDER, Appellant
                                     v.
                      THE STATE OF TEXAS, Appellee
                   _____________________________________

                           APPELLANT’S BRIEF
                   _____________________________________


                          STATEMENT OF THE CASE

      On April 24, 2013, Appellant was indicted for the offense of driving while

intoxicated – third or more, enhanced for punishment by a prior felony conviction.

(CR: 18).   The indictment also alleged that Appellant used or exhibited a deadly

weapon during the commission of the alleged offense.             (CR: 18).   On January

22, 2014, the State filed a re-indictment.       (CR: 66).   At the close of evidence, the

trial court granted Appellant’s Motion for Directed Verdict as to the deadly

weapon allegation.     (RR8: 44).    On April 17, 2014, a jury found Appellant

                                             1
guilty.   (CR: 102).   The jury assessed Appellant’s punishment at four years in

prison and a $3,000 fine, but recommended that Appellant’s prison sentence be

probated.   (CR: 123).    The trial court then imposed a punishment of probation

for seven years.   (CR: 134).    Appellant timely filed Notice of Appeal on April

17, 2014.   (CR: 131).    Appellant also filed a Motion for New Trial on May 15,

2014, which was overruled by operation of law seventy-five days later.     See TEX.

R. APP. P. 21.8.   This appeal results.

                             STATEMENT OF FACTS

      At trial, Danna Coffey testified that on December 16, 2012, she was working

as a bartender at Logan’s Roadhouse when one of her regular customers, a woman,

and another man came in and sat in the bar area.         (RR6: 50).    She did not

remember what time they came in and could not identify the man with her regular

customer.    (RR6: 49-50).    Coffey was shown State’s Exhibit 7, a receipt from

that day and described what appeared on the bill and that fact that the transaction

was closed at 8:11 p.m.    (RR6: 53).     She could not remember who ordered what

but thought that the man she could not identify had more to drink.   (RR6: 58-61).

      Steve Meurer told the jury that on December 16, 2012, Appellant met him at

Logan’s Roadhouse to watch a Dallas Cowboys game.             (RR6: 70).    Meurer

drank Coors Light and Appellant drank Bud Light.      (RR6: 72).


                                           2
      Karen Logan, Appellant’s neighbor, told the jury that on December 16,

2012, she was in her back yard and saw a ladder rack attached to a vehicle

traveling down the street at less than ten miles per hour.       (RR6: 80, 82-86, 89).

She next heard what she thought to be a car hitting another car.        (RR6: 89).    She

walked to the street and discovered some damage to a teenage neighbor’s fender

and tail light.     (RR6: 95-97).    Logan reported it to the neighbor, and after his

mother came home a few minutes later, the police were called and responded

within a few minutes.        (RR6: 104).    More than one unit responded and after

Appellant was arrested and driven away, only one officer stayed to take statements.

(RR6: 106).       He remained at the location for forty-five minutes.   (RR6: 106).

      Richard Simpson, also Appellant’s neighbor, stated that on December 16,

2012, he was at home watching television when he heard a loud noise and went

outside.   (RR6: 109).      Simpson saw whom he believed to be Appellant park his

truck at his home, four houses down, and go into his house after looking around.

(RR6: 112).

      Jennifer Barnes testified that on December 16, 2012, she was at a friend’s

house when her son called to say that his truck, which was parked outside on the

street in Blockhouse Creek was hit by another vehicle.          (RR6: 120).     Her son

called her at approximately 9:40 p.m. and it took her ten minutes to get back home.


                                             3
(RR6: 121).     After she arrived at 9:50 p.m., it took ten more minutes before the

police were called.      (RR6: 123-24).     Barnes never saw Appellant and did not

recognize him.       (RR6: 133).

        Melissa Ferrell, Appellant’s girlfriend, testified that Appellant left the home

they shared at approximately 5:30 p.m. on December 16, 2012.               (RR6: 135).

When Appellant returned home, Ferrell was asleep.           (RR6: 138-39).    Appellant

indicated that he had hit a car and said he did not want to go back to jail.      (RR6:

139).    Ferrell had not observed Appellant drinking earlier in the day but was

aware he had been drinking when he returned home.           (RR6: 143-44).    Appellant

went to his closet to retrieve a gun and Ferrell was concerned he might hurt

himself.    (RR6: 140-41).     Ferrell heard a knock at the door and went to answer

it.    (RR6: 144).     An officer was at the door and Ferrell told the officer that

Appellant had a gun.      (RR6: 146).    Despite this fact, the officer backed out of the

doorway and did not ask Ferrell to come outside.         (RR6: 146).   Later, the officer

came inside and told Appellant to come out of the bedroom, which he did, with no

gun.     (RR6: 146).      In fact, Appellant was not aggressive, but the officer

handcuffed him anyway.        (RR6: 146).       On cross-examination, Ferrell explained

that Appellant had previously suffered two heart attacks both in the month of

December in 2010 and 2011.              (RR6: 152).      Ferrell explained that when


                                            4
Appellant returned home, she was not afraid of him, but rather, was concerned he

might hurt himself.   (RR6: 153).   After Appellant was arrested without incident,

Ferrell was picking up the house and found four to six beer bottles outside on the

back porch.    (RR6: 154-55).   On re-direct, Ferrell indicated that Appellant had

told her that he had previously been arrested for DWI in the 1980’s but that he had

given up drinking to raise his children when he got sole custody of them.    (RR6:

165).

        Jason Waldon, a detective with the Williamson County Sheriff’s Office,

testified that he was working an extra job in Blockhouse Creek on December 16,

2012, he responded to a call of a hit and run.   (RR6: 178).    He arrived on scene

at 10:05 p.m. and discovered a parked car had been hit.   (RR6: 180).    There were

neighbors outside who pointed Waldon to Appellant’s home.               (RR6: 185).

Waldon knocked on Appellant’s door and Ferrell answered the door.       (RR6: 185).

When she did, she indicated Appellant was inside with a gun.            (RR6: 185).

Waldon backed out of the doorway, but did not tell Ferrell to go outside.    (RR6:

187).    Waldon called for back-up and Deputy Hammett arrived within a few

seconds.    (RR6: 187).   The two then entered the house and asked Appellant to

come out of his bedroom, which he did without incident.             (RR6: 190-91).

Waldon then placed Appellant in handcuffs.        (RR6: 192).     Deputy Hammett


                                         5
conducted a protective sweep of the house and Appellant was taken outside.

(RR6: 194).       Once outside, Waldon and Appellant had an exchange in which

Appellant asked who called Waldon and he responded that the people whose truck

was hit called.    (RR6: 203-04).      Appellant responded, “I hit that truck.”   (RR6:

204).    Waldon then read Appellant his Miranda 1 warnings.               (RR6: 204).

Nonetheless, Waldon was still not certain he had enough evidence to take

Appellant to jail.     (RR6: 204).       In fact, when speaking to Appellant, Waldon

said he did not know what Appellant would be going to jail for yet.               (RR6:

205-06).     A few minutes later, Waldon decided to arrest Appellant and directed

another officer, Sergeant Brogden, to transport Appellant to the jail.     (RR6: 212).

Waldon followed behind and they all arrived at 11: 19 p.m.         (RR6: 215).    Once

at the jail, Waldon read Appellant a DIC-24 form, but admitted it was an outdated

form.     (RR6: 226).      Waldon then said he conducted a blood draw because

“there’s a statute in effect that, basically, commands us to draw blood in certain

situations involving DWI arrests, one of them being a charge that’s due to previous

convictions.”     (RR6: 228).

        Waldon stated that he responded to the location of the damaged vehicle at

10:05 p.m. and then to Appellant’s home at 10:14 p.m.             (RR6: 243-44).    At


1
    Miranda v. Arizona, 384 U.S. 436 (1966).

                                               6
10:16 p.m., Appellant was in handcuffs and by 10:26 p.m., Waldon’s encounter

with Appellant was over.      (RR6: 246-47, 249).       Waldon acknowledged that in

order to arrest Appellant without a warrant for DWI, he had to determine

Appellant’s home was a suspicious place.          (RR7: 20-21).    Between 10:26 p.m.

and 11:00 p.m. when Waldon left Appellant’s home, Waldon took photographs,

gathered broken pieces of the head lamp from Appellant’s vehicle, and interviewed

Ferrell.   (RR7: 22).    At the same time, Deputy Hammett was interviewing the

neighbors down the street.        (RR7: 22-23).       Waldon stated that there were

fourteen sheriff’s deputies on patrol that night as well as one or two deputies also

working extra jobs.     (RR28).    In addition, there was an on-call detective to assist

officers on duty as well as an on-call assistant district attorney and on-call assistant

county attorney who were available twenty-four hours a day.             (RR7: 29-30).

Waldon agreed that Sunday night shifts, which this was, were not very busy.

(RR7: 28-29).     Between 11:00 p.m. and 11:19 p.m., Waldon was driving to the

jail but did not call anybody to assist him.       (RR7: 32).    Deputy Hammett went

back on patrol.   (RR7: 32).      At 11:45 p.m., Waldon read Appellant the DIC-24

warning.    (RR7: 33).     Waldon admitted that he read the wrong DIC-24 to

Appellant and that was a violation of the law.      (RR7: 38).    The blood drawn was

then taken at 12:43 a.m.    (RR7: 43-44).       Waldon stated that he drew Appellant’s


                                            7
blood based on a statute which authorizes blood draw without a warrant.       (RR7:

45).   Waldon acknowledged that he writes his own warrants and knows the

process for obtaining a judge’s signature on a warrant.   (RR7: 48).    Specifically,

Waldon would draft a warrant, e-mail it to the assistant district attorney on call,

and then meet with the judge, usually at their home, for his or her signature.

(RR7: 60-61).

       Sheryl Peyton, a toxicologist with the Department of Public Safety, testified

that she analyzed the blood sample in this case.     (RR7: 128-29).     Her analysis

indicated that the blood alcohol content was .215 grams of alcohol per hundred

milliliters of blood.   (RR7: 135).

                               ISSUES PRESENTED

       1. The trial court erred in denying Appellant’s Motion to Suppress where
          Appellant’s blood was drawn without a warrant in violation of the United
          States Supreme Court’s holding in Missouri v. McNeely, 133 S.Ct. 1522
          (2013).

       2. Appellant suffered some harm when the jury was not instructed that it
          could disregard the results of the blood draw in this case if it determined
          Appellant’s blood was drawn without a warrant and without a showing of
          exigent circumstances.

       3. Appellant’s conviction violates his protection against Ex Post Facto laws
          in violation of Article I, Section 16 of the Texas Constitution.




                                          8
                       SUMMARY OF THE ARGUMENT

      Appellant’s first point of error should be sustained because the trial court

erred in denying Appellant’s Motion to Suppress where Appellant’s blood was

drawn without a warrant in violation of the United States Supreme Court’s holding

in Missouri v. McNeely, 133 S.Ct. 1522 (2013).      Appellant’s second point of error

should be sustained because Appellant suffered some harm when the jury was not

instructed that it could disregard the results of the blood draw in this case if it

determined Appellant’s blood was drawn without a warrant and without a showing

of exigent circumstances.     Appellant’s third point of error should be sustained

because Appellant’s conviction violates his protection against Ex Post Facto laws

in violation of Article I, Section 16 of the Texas Constitution.

                        ARGUMENT & AUTHORITIES

      I.     The trial court erred in denying Appellant’s Motion to
             Suppress where Appellant’s blood was drawn without a
             warrant in violation of the United States Supreme Court’s
             holding in Missouri v. McNeely, 133 S.Ct. 1522 (2013).

      Appellant’s first point of error should be sustained because the trial court

abused its discretion in denying Appellant’s Motion to Suppress the results of a

warrantless blood draw.     Specifically, the results of the blood draw in this case

should have been excluded because Appellant’s blood was drawn without a

warrant or consent in violation of Missouri v. McNeely, 133 S.Ct. 1522 (2013).    In

                                          9
addition, the State failed to show any exigent circumstances which served as an

exception to the warrant requirement. Because Appellant’s constitutional rights

were violated, reversal is required.

      (A)       Preservation of Error

      Prior to trial, Appellant On February 24, 2014, Appellant filed a Motion to

Suppress pursuant to the United States Supreme Court’s decision in McNeely v.

Missouri, 133 S.Ct. 1522 (2013).        (CR: 75).   Appellant re-urged his motion to

suppress during trial and requested a jury instruction pursuant to Texas Code of

Criminal Procedure Article 38.23, both of which were denied.        (RR8: 5-11, 37).

Appellant filed a Motion for New Trial again arguing that the blood draw in this

case was unconstitutional pursuant to McNeely v. Missouri, 133 S.Ct. 1522 (2013).

(CR: 137).      Thus, Appellant has preserved error for appellate review.    TEX. R.

APP. P. 33.1.

      (B)       Warrant Requirement

      On April 17, 2013, the United States Supreme Court issued an opinion in

Missouri v. McNeely, 133 S.Ct. 1522 (2013), holding that “In 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.”         McNeely, slip op. at 9.   In


                                           10
so holding, the Court rejected a per se rule that the dissipation of alcohol in the

blood stream creates an exigency which absolves the State of the duty to obtain a

warrant before taking a suspect’s blood.       Id. In fact, the Court recognized its

long-standing directive that exigency be determined on the totality of the

circumstances and cited its opinion in Schmerber v. California, 384 U.S. 757

(1966).

      The 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., citing Richards v. Wisconsin, 520 U.S. 385 (1997).

      The Court then directly addressed the various implied consent laws adopted

by the fifty states and noted that a driver who has impliedly consented to blood

alcohol testing as a condition of operating a motor vehicle on public roads can

withdraw that consent if asked to give a blood or breath sample.       McNeely, slip.

op. at 18.   Obviously, the withdrawal of consent necessitates a warrant or exigent

circumstances.    Id. at 20.   The Court stressed that “wide-spread state restrictions

on nonconsensual blood testing provide further support for our recognition that

compelled blood testing provide further support for our recognition that compelled

                                          11
blood draws implicate a significant privacy interest.”    Id. at 20.

      On November 26, 2014, the Court of Criminal Appeals issued its opinion in

State of Texas v. Villarreal, No. PD-0306-14 (Tex. Crim. App., delivered

November 26, 2014), acknowledging the United States Supreme Court’s decision

in McNeely.    In Villarreal, the Court concluded, as the Supreme Court did “that

the warrantless, nonconsensual testing of a DWI suspect’s blood does not

categorically fall within any recognized exception to the Fourth Amendment’s

warrant requirement, nor can it be justified under a general Fourth Amendment

balancing test.”   Villarreal, slip. op. at 2.    In affirming the trial court’s ruling

suppressing the results of a warrantless blood draw, and rejecting numerous

arguments by the State, the Court stated “We hold 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.”      Id. at 49.

      In Gore v. State, the First Court of Appeals acknowledged the Supreme

Court’s holding in McNeely and agreed that Texas’s implied consent law does not

constitute an exception to the warrant requirement for seizing a sample of a

suspect’s blood.   Gore v. State, No 01-13-00608-CR (Tex. App.—Houston [1st


                                          12
Dist.] delivered November 13, 2014).      The Court explained that a suspect can

withdraw consent because “While the State certainly has the ability to condition

the right to drive on consent to a blood draw, it cannot require the waiver of a

constitutional right in return.”   Gore, at 22.     Thus, in order to justify the

warrantless blood draw in Gore, where Gore refused to submit a blood sample, the

State was required to show exigent circumstances as an exception to the warrant

requirement.   Id.

      In Leal v. State, the Fourteenth Court of Appeals considered whether consent

applied as an exception to the warrant requirement.            Leal v. State, No.

14-13-00208-CR (Tex. App.—Houston [1st Dist.], delivered November 13, 2014).

In its analysis, the Court held that despite the language of Texas’s implied consent

law, a suspect may revoke or withdraw their consent to the seizure of their blood in

accordance with the Supreme Court’s decision in McNeely.                Id. at 14.

Specifically, the Court held:

      A blood draw conducted at the direction of the police is a search
      subject to the reasonableness requirement of the Fourth Amendment.
      Schmerber v. California, 384 U.S. 757, 767 (1966). A warrantless
      search of the person is unreasonable unless it falls within a recognized
      exception to the warrant requirement. McNeely, 133 S. Ct. at 1558.
      Voluntary consent to search and exigent circumstances are among the
      recognized exceptions. McGee v. State, 105 S.W.3d 609, 615 (Tex.
      Crim. App. 2003). We are persuaded by the reasoning of our sister
      courts of appeal and join them in concluding that the repeat-offender
      provision of the implied-consent statute, see TEX. TRANSP. CODE Ann.

                                        13
      § 724.012(b)(3)(B), is not one of the recognized exceptions to the
      warrant requirement. State v. Anderson, — S.W.3d —, —, No.
      09-13-00400-CR, 2014 WL 5033262, at *15 (Tex. App.—Beaumont
      Oct. 8, 2014, no pet. h.); Aviles v. State, — S.W.3d —, —, No.
      04-11-00877-CR, 2014 WL 3843756, at *3 (Tex. App.—San Antonio
      Aug. 6, 2014, pet. filed); Forsyth v. State, 438 S.W.3d 216, 223 (Tex.
      App.—Eastland 2014, pet. filed); Sutherland v. State, 436 S.W.3d 28,
      41 (Tex. App.—Amarillo 2014, pet. filed); Weems v. State, 434
      S.W.3d 655, 665 (Tex. App.—San Antonio 2014, pet. granted);
      Reeder v. State, 428 S.W.3d 924, 930 (Tex. App.—Texarkana 2014,
      pet. granted); State v. Villareal, — S.W.3d —, —, No.
      13-13-00253-CR, 2014 WL 1257150, at *11 (Tex. App.—Corpus
      Christi Jan. 23, 2014, pet. granted).

      Leal, Slip. op. at 9.

      In Leal, the Court reasoned that because Leal refused to submit a breath or

blood specimen and had to be restrained when a blood sample was taken by a

hospital worker, he effectively withdrew his consent and therefore, the arresting

officer was required to obtain a warrant to take Leal’s blood.   Id. at 17.

      At a hearing on a motion to suppress, the State has the burden of proving a

warrantless arrest or seizure was reasonable.    Amador v. State, 275 S.W.3d 872,

878 (Tex. Crim. App. 2009).      It is undisputed that Appellant refused consent to

the blood draw and that a warrant was not obtained in this case. During a hearing

on Appellant’s Motion to Suppress the blood draw, Waldon was asked why he

“moved ahead with a mandatory blood draw,” and Waldon responded, “That was

the law at that time.”   (RR5: 49-50).   Waldon stated further, “For a felony DWI,


                                         14
we would just do a mandatory blood draw if the person refused.”     (RR5: 49-50).

Waldon stated further as follows:

      [DEFENSE COUNSEL]:             Let’s move forward to getting a warrant and

                                     getting a -- taking the blood draw. Would it

                                     be fair to say that he did not consent to you

                                     drawing his blood?

      [WALDON]:                      Yes.

      [DEFENSE COUNSEL]:             And really, the only legal authority that you

                                     relied on to draw his blood that night was

                                     the fact that you thought there was a statute

                                     that said you could do it.

      [WALDON]:                      Correct.

      [DEFENSE COUNSEL]:             You aren’t relying on any other legal

                                     authority other than just that statute. That’s

                                     the reason that you drew his blood that way

                                     that night.

      [WALDON]:                      Correct.

(RR5: 105).   Additionally, on direct-examination before the jury, Waldon said he

conducted a blood draw because “there’s a statute in effect that, basically,


                                       15
commands us to draw blood in certain situations involving DWI arrests, one of

them being a charge that’s due to previous convictions.”           (RR6: 228).

       Likewise, Lytza Rojas, an Assistant District Attorney at the Williamson

County District Attorney’s Office, testified that she was employed at the office at

the time of Appellant’s arrest and that the policy at the time was not to obtain a

warrant to draw blood if there were two prior convictions for DWI.                       (RR5:

172-73).     When asked what her response would be had an officer called for a

warrant to obtain blood at that time, Rojas replied: “That you don’t need a warrant,

and I’m not going to wake up a judge for that.”          (RR5: 173).

       It is clear from the holding in McNeely, as well as the holdings of the Texas

Court of Criminal Appeals and sister Courts of Appeals of Texas that a warrant is

required to take a suspect’s blood.2        Because that was not done in this case, the

State must show an exception to the warrant requirement to justify the warrantless

blood draw.

       (C)    Absence of Exigent Circumstances

       The issue of exigency has been addressed by many of the Courts of Appeals

of Texas.     Specifically, The Fourteenth Court of Appeals addressed exigency in


2
   Apparently, even the jury sensed a constitutional violation by sending out a jury note during
their deliberations which read, “Is it a violation of law that a warrant was not obtained from a
judge before the blood draw?” (CR: 103).


                                              16
Leal v. State, and overruled a trial court’s ruling denying Leal’s motion to

suppress.    Leal v. State, No. 14-13-00208-CR (Tex. App.—Houston [1st Dist.]

delivered November 13, 2014).      In Leal, the record reflected that Leal was pulled

over at approximately 2:00 a.m. and arrested at 2:46 a.m.          Id. at 10.   Leal’s

blood was not drawn until 4:20 a.m. and the arresting officer testified that although

he could have obtained a warrant, he did not.     Id. at 11.   In overturning the trial

court’s ruling denying Leal’s Motion to Suppress, the Fourteenth Court held that

the State had not articulated any exigent circumstances to support an exception to

the warrant requirement for a specimen of a suspect’s blood. Id.

        In Gore v. State, this Court analyzed exigency and the admissibility of blood

results where Gore refused consent for a blood sample and her blood was taken

without a warrant.    Gore v. State, No 01-13-00608-CR (Tex. App.—Houston [1st

Dist.] delivered November 13, 2014).      The record reflected that Gore was pulled

over with two children in the car and arrested for driving while intoxicated.    Gore

at 7.     The arresting officer testified that it took approximately ten to fifteen

minutes for a family member to arrive to retrieve the children and another five to

ten minutes to get the children into the family member’s vehicle. Gore, Slip. op.

at 3-4.     The arresting officer testified further that Gore’s blood was taken

forty-nine minutes after her arrest without a warrant based “off of what the law


                                          17
said at the time.”   Gore, at 6.   Finally, the arresting officer testified that there

were no “emergencies” because no one required medical services.          Gore, at 6.

Despite this testimony, the trial court denied Gore’s motion to suppress the blood

results.   Gore, at 7.   The Court then gave a detailed summary of the Texas

Courts of Appeals that have considered the issue of exigency and reported:

       In Sutherland, 436 S.W.3d at 31, the defendant was stopped by police
       at 11:30 p.m. after he changed lanes without signaling. The police
       officer performed field sobriety tests, arrested the defendant at 11:54
       p.m. based on his performance of tests, and asked the defendant to
       take a breath test, which the defendant refused. Id. The officer then
       received information that the defendant had two previous DWI
       convictions, so, in reliance on section 724.012(b) of the Transporation
       Code, the officer took the defendant to the jail, where his blood was
       drawn without his consent at 12:48 a.m. Id. At the hearing on
       appellant’s motion to suppress, the officer admitted that there was no
       accident, no medical emergency and no need for medical treatment by
       any person. Id. at 32. There was also evidence that a magistrate and
       phlebotomist were both available 24-hours-a-day at the booking
       facility, but that the State never sought a warrant in the case. Id. The
       court concluded that the State had not shown exigency because the
       arresting officer “did not describe any factors that would suggest he
       was confronted with an emergency or any unusual delay in securing a
       warrant[,]” and that “he made no effort to obtain a warrant because he
       believed that the law required that he obtain a blood sample under the
       circumstances presented to him.” Id. at 40. The court noted that
       “procedures in place at the Travis County central booking facility
       have been implemented to streamline the warrant application
       process[,]” and that “the arresting officer was not faced with exigent
       circumstances such that the natural dissipation of alcohol from
       appellant’s bloodsteam would support a warrantless seizure of
       appellant’s blood.” Id. at 40, 41.



                                         18
In Weems, the defendant was discovered near the scene of a car crash
hiding underneath a car. 434 S.W.3d at 658. He was arrested and
refused to provide a breath or blood specimen, so he was taken to a
hospital, where blood was drawn without his consent. Id. The officer
“testified that a mandatory blood draw was taken because Weems was
driving a car involved in a crash and the passenger was injured.” Id.
Two to three hours passed between the time of the crash and the time
the specimen was taken. Id. Even though there had been an accident,
the passenger had been injured, and the defendant had been
transported to the hospital, the court found that no exigency was
shown by the State. The court noted that the officer had made no
effort to obtain a warrant. Id. at 666. The court also noted that the
record contained no “other factors that would be relevant under the
circumstances, including ‘procedures in place for obtaining a warrant
or the availability of a magistrate judge’ and ‘the practical problems
of obtaining a warrant with a timeframe that still preserves the
opportunity to obtain reliable evidence.’” Id. (citing McNeely, 133 S.
Ct. at 1568).

In Forsyth, the police stopped the defendant for failing to signal a
turn. 438 S.W.3d at 218. After the defendant failed her field sobriety
tests, she was arrested and a criminal history check revealed two prior
DWI convictions. Id. at 219. After the defendant refused to submit a
breath or blood sample, she was transferred to a hospital ten minutes
away for a mandatory blood draw, which was taken approximately 30
to 45 minutes after arriving at the hospital. Id. The officer testified
that “[o]n average, from the time of the stop to the time blood is
drawn, it takes two hours to get a blood draw with a warrant[,] and
that “it is always faster to get a blood draw without a warrant than it is
with a warrant.” Id. The court found no exigent circumstances,
stating:

      In this case, the trial court found that there were no
      exigent circumstances beyond the natural dissipation of
      alcohol in Appellant’s bloodstream. Although Sergeant
      Kreger testified that in certain situations an officer may
      have to wait over one and one-half hours for a warrant,
      there was no evidence presented by the State in this

                                   19
      particular case of how long Officer McDaniel would
      have had to wait on a warrant. Because the State failed to
      present evidence of any other exigent circumstances
      beyond the natural dissipation of alcohol in Appellant’s
      bloodstream, we cannot uphold the trial court’s ruling on
      the ground that exigent circumstances existed.
      Id. at 220.

Most recently, the Fourteenth Court of Appeals has considered the
exigency exception in an en banc opinion. See Douds v. State, 434
S.W.3d 842 (Tex. App.—Houston [14th Dist.] 2014, pet. granted). In
Douds, Officer Tran responded to a two-car accident at 2:33 a.m. Id.
at 845. Another officer and EMS were already at the scene. Id. Officer
Tran believed that appellant’s wife needed to be “checked out,” and
her friends in the second car stated, “we’re taking her.” Id. After
failing field sobriety tests, appellant was arrested at 3:19 a.m. and
taken to the police department, arriving at 3:33 a.m. Id. After
appellant refused to provide a breath sample and believing that
appellant’s wife had been injured, Officer Tran took appellant to a
medical center for a mandatory blood draw; which was accomplished
at 4:45 a.m. Id. On appeal, the State argued that “under Schmerber,
the time an officer takes to conduct an accident investigation in a
suspected DWI case will provide exigent circumstances authorizing a
blood draw without a warrant.” Id. at 851. The court noted that
“courts must focus on whether the State showed that police could not
reasonably obtain a warrant, Id. at 853, and that “[t]he relevant inquiry
is whether, given the facts and circumstances known to police at the
time, it would be objectively reasonable for an officer to conclude that
taking the time necessary to obtain a warrant before drawing a blood
sample would significantly undermine the efficacy of a blood alcohol
test.” Id. at 854. As such, the court concluded that an accident
investigation, without more, would not support a warrantless blood
draw based on exigent circumstances. Id. The court, after examining
the record in favor of the trial court’s ruling, found no exigent
circumstances because (1) nothing in the record mentioned what the
officer knew about the time needed to obtain a warrant; (2) there was
no evidence addressing whether another officer could have begun the
process of obtaining a warrant; (3) an unexplained delay between the

                                   20
      arrest and the blood draw negated any inference that time was of the
      essence in obtaining a blood sample; and (4) the officer did not testify
      that, in his judgment, the time he spent investigating the warrant
      would have threatened the destruction of appellant’s blood alcohol
      concentration. Id. at 855–56.

Gore, at 28-30.

      In considering the above cases, the Court found no exigent circumstances

and reversed the trial court’s ruling denying Gore’s motion to suppress. Gore, at

33.   The Court did so because nothing in the record explained why the arresting

officer did not have time to get a warrant before the evidence was destroyed,

especially, when, as noted by the McNeely court, “’BAC evidence from a

drunk-driving suspect naturally dissipates over time in a gradual and relatively

predictable manner.’” Gore, at 33, citing McNeely, 133 S. Ct. at 1561.    The Court

found further that even if the arresting officer had to wait the maximum estimated

three hours for a warrant, it is likely that the blood alcohol content evidence

“would have nonetheless been available in light of its ‘predictable manner’” of

dissipation.   Gore, at 33.

      Finally, the Fourteenth Court of Appeals addressed exigency just this month

in Evans v. State, No. 14-13-00642-CR (Tex. App.—Houston [14th Dist.],

delivered February 10, 2015).       In its opinion, the Court instructed that a

warrantless search and seizure can be reasonable “[w]here there are exigent


                                        21
circumstances in which police action literally must be ‘now or never’ to preserve

the evidence of the crime.” Id. at 9, citing Douds, 434 S.W.3d at 850 (quoting

Roaden v. Kentucky, 413 U.S. 496, 505 (1973)). The Court explained that exigent

circumstances generally fall within one or more of three categories: (1) providing

aid or assistance to persons whom law enforcement reasonably believes are in need

of assistance; (2) protecting police officers from persons whom they reasonably

believe to be present, armed, and dangerous; and (3) preventing the destruction of

evidence or contraband. Id., citing Gutierrez v. State, 221 S.W.3d 680, 685 (Tex.

Crim. App. 2007).       Further, “McNeely requires an officer to identify factors that

suggest he faced an emergency or unusual delay in obtaining a warrant.”      Id.

       In this case, Waldon testified that he responded to the location of the

damaged vehicle at 10:05 p.m. and then to Appellant’s home at 10:14 p.m.       (RR6:

243-44).    At 10:16 p.m., Appellant was in handcuffs and by 10:26 p.m., Waldon’s

encounter with Appellant was over.       (RR6: 246-47, 249).     Between 10:26 p.m.

and 11:00 p.m. when Waldon left Appellant’s home, Waldon took photographs,

gathered broken pieces of the headlamp from Appellant’s vehicle, and interviewed

Ferrell.   (RR7: 22).     At the same time, Deputy Hammett was interviewing the

neighbors down the street.      (RR7: 22-23).   Between 11:00 p.m. and 11:19 p.m.,

Waldon was driving to the jail but did not call anybody to assist him.     (RR7: 32).


                                           22
During this time, Deputy Hammett went back on patrol.         (RR7: 32).    At 11:45

p.m., Waldon read Appellant the DIC-24 warning.        (RR7: 33).

      Clearly, there was no exigency which delayed the warrant process based on

the detention of Appellant and the protective sweep because according to the

State’s own witnesses, the entire encounter lasted only twelve minutes.      Further,

as discussed above, accident investigation, without more, does not support a

warrantless blood draw based on exigent circumstances.          Douds v. State, 434

S.W.3d at 854.     Even if it did, the record reflects that there were more than

enough officers than necessary and any one of them could have obtained a warrant,

including Waldon himself, who could have begun the process on the way back to

the jail, and certainly Hammett, who left the scene at 11:00 p.m. In addition,

Waldon stated that there were fourteen sheriff’s deputies on patrol that night as

well as one or two deputies also working extra jobs.    (RR28).

      Moreover, there were more than adequate procedures in place to easily

obtain a warrant for Appellant’s blood.        Specifically, there was an on-call

detective to assist officers on duty as well as an on-call assistant district attorney

and on-call assistant county attorney who were available twenty-four hours a day.

(RR7: 29-30).    The record reflects that in Williamson County, there are five

District Court judges, four County Court at Law Judges, and two magistrates


                                         23
available to sign warrants, and that there is a medical phlebotomist on duty at the

jail twenty-four hours a day.   (RR5: 98-99, 112).

        Waldon himself could have obtained a warrant because he writes his own

warrants and knows the process for obtaining a judge’s signature on a warrant.

(RR7: 48).    Specifically, the procedure Waldon would follow would be to draft a

warrant, e-mail it to the assistant district attorney on call, and then meet with the

judge, usually at their home, for his or her signature.   (RR7: 60-61).

        At the hearing on Appellant’s Motion to Suppress, which was carried with

trial, testified that he did not believe the District Attorney’s Office would have

helped him had he called since a warrant was unnecessary for a mandatory blood

draw.    (RR5: 54).   In addition, Waldon stated that he thought the process for

getting a warrant would have taken two hours.      (RR5: 56). Waldon acknowledged

that since the Supreme Court’s opinion in McNeely, he has been advised by the

District Attorney’s Office to get a warrant before drawing a suspect’s blood.

(RR5: 115).

        Hammett acknowledged that at the time of Appellant’s arrest there was an

on-call district attorney he could have called to twenty-four hours a day to get

assistance in obtaining a warrant.        (RR5: 130).      In addition, judges were

available at night to sign warrants.     (RR5: 130-31).     Hammett agreed that the


                                          24
only thing that has changed between the time of Appellant’s arrest and now is that

the Sheriff’s Office has changed its policy and now requires a warrant to draw a

suspect’s blood.     (RR5: 131).    Hammett stated that had he attempted to obtain a

search warrant for Appellant’s blood in December of 2012, he would have been

told “no,” “because of the statue that existed at that time.”   (RR5: 128).

        Rojas explained that in the process of getting a warrant, the officer drafts a

warrant and the prosecutor contacts the judge for review.       (RR5: 174-74).   Since

the McNeely decision, the District Attorney’s Office has required law enforcement

to obtain a warrant before taking a suspect’s blood.               (RR5: 176).     On

cross-examination, Rojas acknowledged that a warrant can be obtained within two

hours, and that the assistance the District Attorney’s Office provides can take as

little as an hour.   (RR5: 180).

        Jennifer Earls, an attorney in private practice who is Board Certified in

Criminal Law, testified that she was formerly employed at the Williamson County

District Attorney’s Office as a prosecutor.     (RR5: 182).     As part of her duties,

Earls trained law enforcement in the procedure for obtaining warrants.           (RR5:

183).    She also assisted law enforcement in obtaining warrants and stated that for

DWI offenses specifically, there was a template for the warrant which she would

fill in after talking to the officer.   (RR5: 184).   In fact, most of the prosecutors


                                           25
would write the warrant for the officer after receiving the necessary information

over the phone.     (RR5: 185).    Earls stated that with the procedure set up at the

District Attorney’s Office, it was possible to obtain a warrant within two hours.

(RR5: 185).

      Based on the testimony elicited during the motion to suppress and at trial,

the State failed to prove any exigent circumstances which relieved the State of its

requirement to obtain a warrant for Appellant’s blood.        Specifically, the State

failed to show Waldon “faced an emergency or unusual delay in obtaining a

warrant.”     See Evans, at 9.   Further, a warrant for Appellant’s blood could have

been easily obtained, but was not.     Accordingly, Appellant’s constitutional rights

were violated and the trial court erred in denying his repeated motions to suppress

the blood evidence and his repeated trial objections to this evidence. Missouri v.

McNeely, 133 S.Ct. 1522 (2013); State of Texas v. Villarreal, No. PD-0306-14

(Tex. Crim. App., delivered November 26, 2014); Douds v. State, 434 S.W.3d 842

(Tex. App.—Houston [14th Dist.] 2014).

      (D)     Resulting Harm and the Necessity of Reversal

      In addressing whether reversal was warranted based on constitutional error,

such as occurred in the present case, the Fourteenth Court of Appeals recently

instructed:


                                          26
      In the face of constitutional error, we must reverse the judgment of
      conviction unless we determine beyond a reasonable doubt that the
      error did not contribute to the conviction or punishment. TEX. R. APP.
      P. 44.2(a); Holmes v. State, 323 S.W.3d 163, 173–74 (Tex. Crim.
      App. 2010) (op. on reh’g). In this case, the blood evidence seized
      from appellant was inculpatory and was used against appellant at trial.
      Specifically, evidence of appellant’s blood alcohol content, which
      exceeded the legal limit by nearly a factor of three, was presented at
      trial. We cannot determine beyond a reasonable doubt that the State’s
      use of the evidence of appellant’s blood alcohol content did not
      contribute to appellant’s conviction. See Holmes, 323 S.W.3d at 174.
      This indicates that the trial court’s erroneous ruling was indeed a
      contributing factor in appellant’s conviction and punishment.
      Therefore, the error was harmful.

Leal, at 23.   The same is the case here.     The blood evidence unconstitutionally

seized from Appellant, which showed Appellant’s blood alcohol content was more

than twice the legal limit, was inculpatory and used against him at trial.     This was

the only evidence that Appellant was intoxicated as a matter of law.         It certainly

cannot be determined beyond a reasonable doubt that the State’s use of the blood

evidence did not contribute to his conviction. See Leal, at 23, citing Holmes, 323

S.W.3d at 174.     Therefore, the trial court’s erroneous ruling was harmful and

reversal is mandated.     See Id.   Accordingly, Appellant’s first point of error

should be sustained.




                                         27
      II.    Appellant suffered some harm when the jury was not
             instructed that it could disregard the results of the blood draw
             in this case if it determined Appellant’s blood was drawn
             without a warrant and without a showing of exigent
             circumstances.

      Appellant’s second point of error should be sustained because the trial court

denied Appellant’s requested jury instruction.        Specifically, the jury was not

instructed that it could disregard the blood alcohol evidence in this case if it

determined Appellant’s blood was drawn in violation of the United States

Constitution or the laws of the State of Texas.

      A claim of jury-charge error is reviewed under the procedure set out by the

Court of Criminal Appeals in Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim.

App. 1985); Barrios v. State, 283 S.W.3d 348 (Tex. Crim. App. 2009).          Pursuant

to the Court’s analysis of Article 36.19 of the Texas Code of Criminal Procedure,

if there is error in the jury charge and appellant objected to the error at trial,

reversal is required if the error “is calculated to injure the rights of the defendant,”

which has been defined to mean that there is “some harm.” Id., citing Almanza,

686 S.W.2d at 171.

      At trial, Appellant requested the following instruction:

      If you believe, or have a reasonable doubt thereof, that the
      Defendant’s blood was drawn without a warrant or exigent
      circumstances then you shall disregard any evidence obtained as a
      result of that blood draw.

                                          28
(CR: 117).      The trial court refused this instruction, despite Appellant’s repeated

objection to the blood draw evidence based on the United States Supreme Court’s

holding in McNeely v. Missouri, 133 S.Ct. 1522 (2013), and the extensive

testimony on this issue before the jury at trial.   (RR8: 5-11).

      As discussed extensively above, Appellant’s blood was drawn without a

warrant and the State was unable to show exigent circumstances which would

justify the warrantless seizure of Appellant’s blood.     Id.   Therefore, evidence of

his blood alcohol content should have been excluded from evidence, but if

allowed, the jury should have had the opportunity to follow the law and disregard

that evidence.    See Id.

      Since Appellant objected to the exclusion of his requested instruction,

Appellant must show only that he suffered “some harm” which was calculated to

injure his rights.    Almanza, 686 S.W.2d at 171.       This, Appellant is able to do

because he can affirmatively show a constitutional violation which served to allow

the admission of inadmissible evidence used to convict him. See Id.      Had the jury

been instructed that it could not consider the evidence of the blood evidence in this

case, there would have been no quantified evidence of his intoxication.

Accordingly, Appellant suffered some harm and his second point of error should

be sustained.

                                           29
        III.   Appellant’s conviction violates his protection against the
               imposition of Ex Post Facto laws in violation of Article I,
               Section 16 of the Texas Constitution.

        Appellant’s third point of error should be sustained because his conviction

violates his protection against the imposition of Ex Post Facto Laws where the

State was allowed to enhance Appellant’s punishment with convictions not

previously available for such.     Article I, Section 16, of the Texas Constitution

protects its citizens against retroactive and ex post facto laws.   TEX. CONST. Art. I,

§ 16.    An ex post facto law includes any law that alters the legal rules of evidence,

and requires less or different testimony than the law required at the time of the

commission of the offense in order to convict the defendant.         Carmell v. Texas,

529 U.S. 513, 522-25 (2000).

        On February 24, 2014, Appellant filed a Motion to Dismiss for

Constitutional Grounds.      (CR: 82).    In the motion, Appellant argued that the

indictment in this case alleged prior convictions for DWI which became final on

November 4, 1982; June 19, 1986; and January 30, 1989.          (CR: 82-83).    At the

time of Appellant’s pleas in 1986 and 1989, the law in place instructed that if a

person was not arrested for the offense of driving while intoxicated for the

superseding ten years, any previous conviction for driving while intoxicated could

not be used against him.     TEX. PENAL CODE § 49.09 (effective until September 1,


                                           30
2005).   Texas Penal Code Section 49.09(e), in effect at the time Appellant

pleaded guilty to his prior offenses for driving while intoxicated stated:

            a conviction may not be used for purposes of enhancement
      under this section if:

             (1)   the conviction was a final conviction under Subsection
      (d);

          (2) the offense for which the person is being tried was
      committed more than 10 years after the latest of:

                  (A) the date on which the judgment was entered for the
      previous conviction;

                   (B) the date on which the person was discharged from
      any period of community supervision on which the person was placed
      for the previous conviction;

                   (C) the date on which the person successfully completed
      any period of parole on which the person was released after serving a
      portion of the term to which the person was sentenced for the previous
      conviction; or

                  (D) the date on which the person completed serving any
      term for which the person was confined or imprisoned for the
      previous conviction; and

             (3) the person has not been convicted of an offense under
      Section 49.04, 49.05, 49.06, 49.065, 49.07, or 49.08 or any offense
      related to operating a motor vehicle while intoxicated within 10 years
      of the latest date under Subdivision (2).

TEX. PENAL CODE § 49.09 (e) (Effective until September 1, 2005).




                                          31
        Many defendants, like Appellant, most certainly took this fact into

consideration when making the decision to accept a plea agreement, never

contemplating that a conviction from more than twenty-five years ago would be

used against them in the future.

        That is most certainly happening now because the present statute reads as

follows:

               (b) An offense under Section 49.04, 49.05, 49.06, or 49.065 is
        a felony of the third degree if it is shown on the trial of the offense
        that the person has previously been convicted:

                    (1) one time of an offense under Section 49.08 or an
        offense under the laws of another state if the offense contains
        elements that are substantially similar to the elements of an offense
        under Section 49.08; or

                     (2) two times of any other offense relating to the
        operating of a motor vehicle while intoxicated, operating an aircraft
        while intoxicated, operating a watercraft while intoxicated, or
        operating or assembling an amusement ride while intoxicated.

TEX. PENAL CODE § 49.09(b).

        There is certainly a difference in the proof required between the first statute

and the second.     Its effect is that had Appellant re-lapsed and committed a new

offense ten years after his last conviction, but prior to the change in the statute in

2005, he would have faced a maximum punishment of six months in the County

Jail.   Instead, after maintaining sobriety for more than twenty-five years, he faces


                                           32
a prison sentence of two to ten years in prison. TEX. PENAL CODE § 49.09(b)(2).

This is exactly what Article I, Section 16 of the Texas Constitution prohibits.   As

such, Appellant’s conviction is unconstitutional and should be reversed.

Therefore, his third point of error should be sustained.

                                     PRAYER

      WHEREFORE, PREMISES CONSIDERED, Appellant respectfully prays

that this Court reverse the judgment and sentence in this case.

                                               Respectfully submitted,


                                               _____”/s/” Kristen Jernigan_______
                                               KRISTEN JERNIGAN
                                               State Bar Number 90001898
                                               207 S. Austin Ave.
                                               Georgetown, Texas 78626
                                               (512) 904-0123
                                               (512) 931-3650 (fax)
                                               Kristen@txcrimapp.com




                                          33
                        CERTIFICATE OF SERVICE

      The undersigned hereby certifies that a true and correct copy of the

foregoing Appellant’s Brief has been mailed to the John Prezas, Appellate

Attorney for the Williamson County District Attorney’s Office, 405 Martin Luther

King, Georgetown, Texas 78626, on February 25, 2015.


                                    ________”/s/” Kristen Jernigan__________
                                    Kristen Jernigan



                    CERTIFICATE OF WORD COUNT

      The undersigned hereby certifies that the foregoing document consists of

9,282 words in compliance with Texas Rule of Appellate Procedure 9.4.



                                    ________”/s/” Kristen Jernigan__________
                                    Kristen Jernigan




                                      34
