Opinion issued July 23, 2015.




                                     In The

                              Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-14-00112-CR
                            ———————————
    MICHAEL D. HOWARD A/K/A MICHAEL DAVID HOWARD, Appellant
                                        V.
                       THE STATE OF TEXAS, Appellee


                    On Appeal from the 391st District Court
                          Tom Green County, Texas
                      Trial Court Case No. D-12-1004-SB


                       MEMORANDUM OPINION

       A jury convicted appellant Michael D. Howard a/k/a Michael David Howard

of felony driving while intoxicated.1 The trial court assessed his punishment at

1
       See TEX. PENAL CODE ANN. §§ 12.42(a), 49.09(b)(2) (West Supp. 2014)
       (third-degree felony enhanced by prior felony conviction, thereby elevating
       punishment range to that of second-degree felony).
sixteen years’ confinement in the Institutional Division of the Texas Department of

Criminal Justice. On appeal, Howards contends that his conviction should be

reversed because the trial court erred in denying his motion to suppress evidence

relating to the warrantless blood draw. We reverse the trial court’s judgment and

remand for a new trial.2

                                      Background

      Howard was stopped for a traffic violation and was subsequently arrested for

DWI. After Howard refused to provide a breath specimen, the arresting officer

transported him to a hospital where a warrantless blood draw was taken pursuant to

Texas Transportation Code section 724.012(b)(3)(B). See TEX. TRANSP. CODE

ANN. § 724.012(b)(3)(B) (West 2011). Howard filed a motion to suppress the

blood analysis results, challenging the warrantless blood draw on Fourth

Amendment grounds.3



2
      This appeal, originally filed in the Third Court of Appeals, Austin, Texas, was
      transferred to the First Court of Appeals, Houston, Texas. See TEX. GOV’T CODE
      ANN. § 73.001 (West 2013) (authorizing transfer of cases).
3
      Howard also argued that the warrantless blood draw violated the Texas
      Constitution. TEX. CONST. art. I, §§ 9, 10. We need not consider whether the
      warrantless blood draw violates the state constitution, however, because Howard
      did not separately brief his state and federal constitutional issues or argue that the
      Texas Constitution provides greater protection than the United States Constitution.
      See Keehn v. State, 279 S.W.3d 330, 334 (Tex. Crim. App. 2009) (not reaching
      defendant’s state constitutional issue regarding warrantless search because
      defendant did not brief state and federal constitutional issues separately); Black v.
      State, 26 S.W.3d 895, 896 (Tex. Crim. App. 2000) (“The [defendant] offers no
      reason for construing the Texas Constitution as conferring greater protection in
                                            2
      At the pre-trial hearing on Howard’s motion to suppress, Sergeant A. Scott

testified that he assisted Officer H. Miller in obtaining Howard’s blood specimen.

Sergeant Scott testified that he remained at the scene to inventory Howard’s

vehicle after Howard was arrested and transported to the jail. The arresting officer,

Officer Miller, called Sergeant Scott and informed him that Howard had two

previous DWI convictions and had refused to provide a breath specimen. At that

point, Sergeant Scott met Howard and Officers Miller and N. Anderson at the

hospital where Sergeant Scott assisted the officers in conducting a mandatory

blood draw. Although Howard had agreed to provide a blood specimen at the jail,

he revoked his consent to the blood draw at the hospital. Sergeant Scott testified

that the officers did not attempt to obtain a warrant because once Howard refused

to provide a breath specimen at the jail they “had the mandatory blood draw in

effect.” Sergeant Scott testified that he believed that Howard’s consent to the blood

draw was irrelevant in light of the mandatory blood draw statute.

      The trial court denied Howard’s motion to suppress. In its findings of fact

and conclusions of law, the trial court found that there was no testimony as to any

exigent circumstances that required the drawing of a blood specimen from Howard

without a search warrant and that the blood specimen obtained from Howard was

“mandated by Chapter 724, Texas Transportation Code.” The trial court also

      this area of the law than the federal constitution, and therefore we will not address
      his state constitutional argument.”).
                                            3
concluded that the warrantless blood draw was “authorized under the implied

consent law of Chapter 724, Texas Transportation Code.”

      At trial, Officer Miller testified about the circumstances of the traffic stop

that led to Howard’s arrest and to his observations of Howard. Officer Miller

testified that based on his observations, he believed that Howard was intoxicated.

      Officer Anderson administered standardized field sobriety tests to Howard at

the scene. Officer Anderson testified that although he was previously certified to

administer such tests, his certification had lapsed as of the date of the arrest. He

also testified that all of the tests he administered to Howard were flawed in some

respect. Although the court allowed Officers Miller and Anderson to testify

regarding their observations of Howard, Officer Anderson was prohibited from

opining about whether he believed that Howard was intoxicated based upon his

performance on the field sobriety tests.

      Dusky Wells, the medical technologist who drew Howard’s blood specimen,

and Marissa Silva, the forensic scientist with the Texas Department of Public

Safety Laboratory in Midland who analyzed the blood specimen, also testified for

the State. According to Silva, Howard’s blood sample contained 0.198 grams of

ethanol per 100 milliliters, which was over twice the legal limit in Texas.




                                           4
                             Warrantless Blood Draw

      Howard contends that the trial court erred in denying his motion to suppress

the blood analysis results because the evidence resulted from a warrantless,

non-consensual blood draw that violated the Fourth Amendment.

A.    Standard of Review and Applicable Law

      We review a trial court’s denial of a motion to suppress evidence under a

bifurcated standard of review. Turrubiate v. State, 399 S.W.3d 147, 150 (Tex.

Crim. App. 2013). We give almost total deference to a trial court’s determination

of historical facts, especially if those determinations turn on witness credibility or

demeanor, and we review de novo the trial court’s application of the law to facts

not based on an evaluation of credibility and demeanor. Gonzales v. State, 369

S.W.3d 851, 854 (Tex. Crim. App. 2012). At a suppression hearing, the trial court

is the sole and exclusive trier of fact and judge of the witnesses’ credibility, and it

may choose to believe or disbelieve all or any part of the witnesses’ testimony.

Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002); State v. Ross, 32

S.W.3d 853, 855 (Tex. Crim. App. 2000).

      When the trial court enters findings of fact, the appellate court considers all

of the evidence in the record and “must determine whether the evidence supports

those facts by viewing the evidence in favor of the trial court’s ruling.” Castro v.

State, 373 S.W.3d 159, 164 (Tex. App—San Antonio 2012, no pet.) (citing Keehn


                                          5
v. State, 279 S.W.3d 330, 334 (Tex. Crim. App. 2009)). Additionally, an appellate

court must “uphold the trial court’s ruling if it is supported by the record and

correct under any theory of law applicable to the case.” State v. Iduarte, 268

S.W.3d 544, 548 (Tex. Crim. App. 2008).

      A blood draw conducted at the direction of a law enforcement officer is a

search subject to the reasonableness requirement of the Fourth Amendment.

Schmerber v. California, 384 U.S. 757, 767, 86 S. Ct. 1826, 1834 (1966); State v.

Villarreal, No. PD–0306–14, 2014 WL 6734178, at *9 (Tex. Crim. App. Nov. 26,

2014) (reh’g granted). A warrantless search of a person is unreasonable unless it

falls within a recognized exception to the warrant requirement. Villarreal, 2014

WL 6734178, at *8 (citing Missouri v. McNeely, 133 S. Ct. 1552, 1558 (2013));

see also Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 514 (1967)

(holding that warrantless search or seizure is per se unreasonable unless it falls

under recognized exception to warrant requirement). Voluntary consent to search

and the existence of exigent circumstances are two of the recognized exceptions.

See McNeely, 133 S. Ct. at 1558; Villarreal, 2014 WL 6734178, at *8.

B.    Mandatory Blood Draw/Implied Consent Statutes

      The State argues that the trial court did not abuse its discretion in admitting

the blood analysis results because the warrantless blood draw was mandated by

Transportation Code section 724.012(b)(3)(B), and alternatively, that Howard is


                                         6
deemed to have consented to the blood draw pursuant to Transportation Code

section 724.011(a). See TEX. TRANSP. CODE ANN. § 724.011(a) (West 2011)

(providing that person arrested for DWI “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”); id.

§ 724.012(b)(3)(B) (providing for mandatory-blood-specimen collection for person

twice before convicted of DWI). We construe these arguments as asserting that the

mandatory blood draw statute and the implied consent statute each constitute an

exception to the Fourth Amendment’s warrant requirement.

      While this case has been pending on appeal, the Court of Criminal Appeals

considered the question of whether a warrantless search of a DWI suspect’s blood

conducted pursuant to section 724.012(b) complied with the Fourth Amendment.

See Villarreal, 2014 WL 6734178, at *6–8. In doing so, the court rejected both

arguments advanced by the State. Specifically, the court held that the mandatory

blood draw statute (§ 724.012(b)) does not constitute a recognized exception to the

warrant requirement. See id. at *8, 17–18; see also Perez v. State, No. 01-12-

01001-CR, 2015 WL 1245469, at *8 (Tex. App.—Houston [1st Dist.] Mar. 17,

2015, pet. filed). The Court of Appeals also rejected the argument that the implied

consent statute (§ 724.011(a)) constitutes an exception to the warrant requirement

and held that “in the context of a nonconsensual, warrantless bodily search of a


                                        7
person suspected of criminal activity, a statute providing for irrevocable implied

consent cannot supply the type of voluntary consent necessary to establish an

exception to the Fourth Amendment warrant requirement.” Villarreal, 2014 WL

6734178, at *14. The court concluded that “implied consent that has been

withdrawn or revoked by a suspect cannot serve as a substitute for the free and

voluntary consent that the Fourth Amendment requires.” Id. at *11. In this case, the

State conceded at the suppression hearing that Howard revoked his consent to the

blood draw at the hospital.

C.    Exclusionary Rule

      The State further contends that even if the blood draw violated Howard’s

Fourth Amendment rights, the trial court was nevertheless correct in admitting the

evidence because the state and federal exclusionary rules are inapplicable.

Specifically, the State argues that there are applicable good-faith exceptions to the

federal exclusionary rule and the Texas exclusionary rule does not apply because

the police did not obtain the evidence in violation of the law, as the law existed at

the time of the blood draw.

      The State argues that the federal exclusionary rule does not bar admission of

the evidence in this case because the officer relied in good faith on the mandatory

blood draw statute and on binding judicial precedent. See Davis v. United States,

131 S. Ct. 2419, 2423–24, 2434 (2011) (stating that officer’s good-faith reliance on


                                         8
binding case law is exception to federal exclusionary rule); Illinois v. Krull, 480

U.S. 340, 360, 107 S. Ct. 1160, 1172 (1987) (stating that officer’s good-faith

reliance on statute is exception to federal exclusionary rule).

      The Texas exclusionary rule provides that “[n]o evidence obtained . . . 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.” TEX. CODE CRIM.

PROC. art. 38.23 (West 2005). The Court of Criminal Appeals has previously held

that “exceptions to the federal exclusionary rule only apply to the Texas statutory

exclusionary rule if they are consistent with the plain language of the statute.”

Douds v. State, 434 S.W.3d 842, 861 (Tex. App.—Houston [14th Dist.] 2014, pet.

granted). Unlike the federal rule, the plain language of Texas’s statutory

exclusionary rule only expressly recognizes one good-faith exception and that is

for “a law enforcement officer acting in objective good faith reliance upon a

warrant issued by a neutral magistrate based on probable cause.” TEX. CODE CRIM.

PROC. art. 38.23(b) (emphasis added). Accordingly, we decline to apply the federal

good-faith exceptions urged by the State to the Texas exclusionary rule set forth in

Article 38.23 because the federal exceptions are not “consistent with the plain

language of the [Texas] statute,” which only recognizes one exception based on an

officer’s good-faith reliance upon a warrant. See State v. Tercero, No. 01-14-


                                           9
00120-CR, 2015 WL 1544519, at *7 (Tex. App.—Houston [1st Dist.] Apr. 2,

2015, pet. filed) (declining to apply another federal good-faith exception to Texas

exclusionary rule because federal exception was “inconsistent with the text of

article 38.23”); see also Weems v. State, 434 S.W.3d 655, 666 (Tex. App.—San

Antonio 2014, pet. granted) (rejecting argument that officer’s good-faith reliance

on mandatory blood draw and implied consent statutes constituted good-faith

exception to article 38.23).

      The State also argues that the Texas exclusionary rule is inapplicable

because “[a]t the time of the blood draw, Texas case law clearly held that alcohol

dissipation alone constituted exigent circumstances in DWI cases.” According to

the State, “McNeely changed the law when it rejected a per se exigency in DWl

cases, but McNeely was issued after the search in this case.” This court recently

addressed a similar argument and concluded that McNeely did not set out a new

constitutional rule, but rather clarified Schmerber and reaffirmed the Supreme

Court’s prior rulings regarding the admissibility of blood evidence acquired

without a warrant. See Tercero, 2015 WL 1544519, at *7.

D.    Harm Analysis

      We review the harm resulting from a trial court’s erroneous denial of a

motion to suppress and subsequent admission of evidence obtained in violation of

the Fourth Amendment under the constitutional harmless-error standard. TEX. R.


                                        10
APP. P. 44.2(a); see Hernandez v. State, 60 S.W.3d 106, 108 (Tex. Crim. App.

2001) (mandating application of rule 44.2(a) to harm analysis of trial court’s

erroneous denial of motion to suppress under Fourth Amendment). This standard

requires us to reverse the trial court’s 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).

      Here, the jury charge instructed the jurors that “[a] person is deemed to be

intoxicated within the meaning of the law when he does not have the normal use of

his mental or physical faculties by reason of the introduction of alcohol in his

body, or having an alcohol concentration of 0.08 or more.” The State presented the

testimony of Officers Miller and Anderson regarding Howard’s conduct leading up

to and following his arrest as evidence of intoxication. The State also presented the

testimony of the medical technologist who took Howard’s blood sample on the

night he was arrested. Finally, the State presented the testimony of a forensic

scientist who testified that Howard’s blood sample contained 0.198 grams of

ethanol per 100 milliliters and that this amount of alcohol was over twice the legal

limit in Texas.

      Given the testimony regarding the taking of Howard’s blood sample and his

toxicology results and the jury’s instruction that intoxication means, in part,

“having an alcohol concentration of 0.08 or more,” we cannot determine beyond a


                                         11
reasonable doubt that the error did not contribute to Howard’s conviction. See

Perez, 2015 WL 1245469, at *9–10; Weems, 434 S.W.3d at 667.

      We conclude that the warrantless taking of Howard’s blood sample in this

case violated his Fourth Amendment rights by requiring him to submit to a blood

test without a warrant or a recognized exception to the warrant requirement and

that this error was harmful.

      We sustain Howard’s complaint that the trial court erred in denying his

motion to suppress evidence relating to the warrantless blood draw.

                                   Conclusion

      We reverse the trial court’s judgment and remand for a new trial consistent

with this opinion.



                                             Russell Lloyd
                                             Justice


Panel consists of Chief Justice Radack and Justices Brown and Lloyd.

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




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