                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-15-00019-CR


THE STATE OF TEXAS                                                APPELLANT

                                       V.

RAYMOND MCCLENDON                                                      STATE


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     FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY
                   TRIAL COURT NO. 1318695D

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                       MEMORANDUM OPINION1

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                             I. INTRODUCTION

     The State appeals the trial court’s order suppressing results from a blood

draw performed on Appellee Raymond McClendon pursuant to the mandatory

blood draw provision of the transportation code. See Tex. Transp. Code Ann.

§ 724.012(b) (West 2011). We affirm.


     1
      See Tex. R. App. P. 47.4.
                               II. BACKGROUND

      At approximately 2:29 p.m. on March 14, 2013, River Oaks Police Officer

Nathan Wilson came upon a traffic accident that had just occurred at the

intersection of Jacksboro Highway and River Oaks Boulevard. Because traffic

was heavy due to ongoing construction on that particular stretch of the roadway,

Officer Wilson immediately blocked oncoming traffic and began an investigation.

River Oaks Police Sergeant Moseley, who was also working patrol that

afternoon, arrived on the scene shortly after Officer Wilson began his

investigation.2

      Officer Wilson first identified the drivers involved and ascertained whether

they needed medical attention. McClendon was identified as the driver of the

vehicle that, according to eye-witnesses, rear-ended Arturo Hernandez’s vehicle

while stopped at a red light. Although he complained of neck and back pain,

Hernandez initially advised Officer Wilson that he did not require medical

attention. Nevertheless, he later decided to transport himself to the hospital to be

examined.

      One of the eyewitnesses Officer Wilson interviewed reported that

McClendon was stumbling around as he exited his vehicle after the collision.

Officer Wilson also personally observed that McClendon displayed signs of


      2
        According to Officer Wilson, two officers typically work an accident scene
and DWI investigation. Although both officers on duty were occupied, they did
not call on an outside agency to assist in patrolling River Oaks.


                                         2
possible drug or alcohol intoxication, i.e., slurred speech and difficulty staying in

one place.

      When Officer Wilson asked him if he had taken any narcotics, McClendon

responded by pulling a bottle of Xanax out of his pocket. Although the label

indicated that only six days earlier the bottle had been filled with 90 pills, Officer

Wilson testified that the bottle contained only half that amount.

      Consequently, Officer Wilson performed a standardized field sobriety test

on McClendon.      On the Horizontal Gaze Nystagmus (HGN) test—a test that

provides clues associated with alcohol, not drugs—McClendon exhibited no

clues. However, on the walk-and-turn and one-legged-stand tests, McClendon

scored six clues and three clues, respectively.

      Based on this information, Officer Wilson read McClendon his statutory

warnings and requested a sample of his blood. After McClendon refused the

request, Officer Wilson placed him under arrest for driving while intoxicated

(DWI). Officer Wilson testified that by this time, approximately 40 minutes had

elapsed since the accident had occurred.

      While McClendon waited in the back seat of the patrol car, Sergeant

Moseley and Officer Wilson inventoried McClendon’s vehicle,3 where they found

a full prescription bottle of Olanzapine and a small marijuana cigarette. After a

      3
        Officer Wilson testified that he did not require Sergeant Moseley’s
assistance to perform this task and that Sergeant Moseley could have returned to
his patrol duties instead of assisting with the inventory.




                                          3
tow truck arrived at approximately 3:10 p.m., Officer Wilson drove McClendon to

the River Oaks Police Department, where Officer Wilson learned that McClendon

had two prior convictions for DWI and a prior conviction for intoxication assault.

While Officer Wilson acknowledged that he could have obtained a search warrant

for a blood draw, he was advised by his sergeant that because of McClendon’s

prior convictions and the fact that the accident had resulted in an injury, a warrant

was not required to authorize the draw. See Tex. Transp. Code Ann. § 724.012.

So, relying on section 724.012 for a warrantless blood draw, Officer Wilson

transported McClendon to John Peter Smith Hospital (JPS), where a nurse drew

his blood at 4:02 p.m.

      In his testimony, Officer Wilson provided several reasons why obtaining a

search warrant to authorize the blood draw would have delayed the process by at

least two—and as much as four—hours. First, Officer Wilson testified that he

was not permitted to fax a request for search warrants to a magistrate because

his sergeant preferred that officers appear in person in front of the magistrate in

such circumstances. The process of completing the paperwork for the warrant

and taking it to the Fort Worth jail, where the magistrate was located, would have

taken 25–30 minutes. During that process McClendon would have had to stay at

the River Oaks Police Station with Sergeant Moseley, who was the only other

patrol officer on duty in the River Oaks municipality that evening.4 However,


      4
       River Oaks does not have a jailer. Of the 17 police officers employed by
the River Oaks Police Department, 12 work in the patrol division. Ideally, three

                                         4
Officer Wilson also testified that the River Oaks Police Department could have

contacted an outside agency, Sansom Park or Westworth Village, in the event

anything requiring police response occurred in River Oaks while Sergeant

Moseley was at the station and Officer Wilson was obtaining a warrant.

      Additionally, Officer Wilson testified that because warrants do not have

priority over the ongoing arraignment proceedings at the jail, once he arrived

there he would have experienced between a 45-minute to two-hour delay while

awaiting the magistrate’s availability to review and sign the warrant. And once he

had the warrant in hand, Officer Wilson would have had to return to the River

Oaks police station, pick up McClendon, and transport him to JPS to have his

blood drawn. Finally, upon arrival at JPS, they would likely have been required

to wait until a nurse was available to draw the blood, because trauma patients

had priority.

      The trial court granted McClendon’s motion to suppress the blood test

results and entered findings of fact and conclusions of law. This appeal followed.

                                III. DISCUSSION

      The State argues that the trial court erred by suppressing the blood test

results for three reasons: (i) exigent circumstances support the warrantless

seizure; (ii) the totality of the circumstances and legal constructs reveal the

reasonableness of the mandatory draw of McClendon’s blood pursuant to section

patrol officers work on each eight-hour shift, but occasionally only two officers
work on a particular shift. This was one such occasion.


                                        5
724.012(b) of the transportation code; and (3) Officer Wilson relied in good faith

on section 724.012(b), which had not yet been held unconstitutional at the time.

A. Standard of Review

      We review a trial court’s ruling on a motion to suppress evidence under a

bifurcated standard of review.    Amador v. State, 221 S.W.3d 666, 673 (Tex.

Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).

In reviewing the trial court’s decision, we do not engage in our own factual

review. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990); Best v.

State, 118 S.W.3d 857, 861 (Tex. App.—Fort Worth 2003, no pet.). We give

almost total deference to a trial court’s rulings on questions of historical fact and

application-of-law-to-fact questions that turn on an evaluation of credibility and

demeanor, but we review de novo application-of-law-to-fact questions that do not

turn on credibility and demeanor. Amador, 221 S.W.3d at 673; Estrada v. State,

154 S.W.3d 604, 607 (Tex. Crim. App. 2005); Johnson v. State, 68 S.W.3d 644,

652–53 (Tex. Crim. App. 2002).

      When the trial court grants a motion to suppress and files accompanying

findings of fact and conclusions of law, and the sole witness at the motion to

suppress hearing is the arresting officer, the only question before us is whether

the trial court properly applied the law to the facts it found. See State v. Gray,

158 S.W.3d 465, 467, 469 (Tex. Crim. App. 2005); Guzman, 955 S.W.2d at 86–

87, 89. This is especially true in a case in which the State has not contested the

trial court’s findings of fact and the trial court’s findings show that the court


                                         6
believed the arresting officer but concluded that the officer’s testimony was

insufficient as a matter of law. See State v. Ross, 32 S.W.3d 853, 856–58 (Tex.

Crim. App. 2000); Guzman, 955 S.W.2d at 89. In this case, we review the trial

court’s ruling de novo. Gray, 158 S.W.3d at 467, 469.

B. Application

      1. Exigent Circumstances

      The Fourth Amendment protects citizens against “unreasonable searches

and seizures” and provides that this right “shall not be violated, and no warrants

shall issue” unless they meet certain requirements. U.S. Const. amend. IV; Tex.

Const. art. I, § 9.   Exceptions to the warrant requirement include “voluntary

consent to search, search under exigent circumstances, and search incident to

arrest.” McGee v. State, 105 S.W.3d 609, 615 (Tex. Crim. App. 2003), cert.

denied, 540 U.S. 1004 (2003). It is the State’s burden to show that a warrantless

search falls within one of these exceptions. Id.

      The State argues that exigent circumstances existed due to the accident

scene’s condition and Officer Wilson and Sergeant Moseley’s duties there and

because obtaining a warrant would have added “significantly” to the time it took

to get a blood sample; River Oaks has a limited amount of law enforcement

resources; and McClendon was under the influence of drugs, not alcohol, and

drugs have an “unknown” dissipation rate. The State also argues that exigent

circumstances existed because the underlying crime was severe—McClendon

had been convicted twice before of DWI and once before of intoxication assault.


                                         7
       The trial court found that Officer Wilson was “able to obtain a search

warrant from a magistrate via fax but [did] not do so because his sergeant prefers

that he obtain warrants in person,” that obtaining a warrant in person from a

magistrate typically takes between one and two hours, and that Sergeant

Moseley could have returned to patrol instead of accompanying Officer Wilson

throughout the process. We are to defer to the trial court’s findings of fact and

determine only if the trial judge correctly applied the law to the facts it found,

especially where, as here, only the arresting officer testified.    See Ross, 32

S.W.3d at 856–58; Guzman, 955 S.W.2d at 89.

      Officer Wilson’s failure to obtain a warrant because his sergeant prefers

that officers obtain “face-time” with the judge does not to create an exigent

circumstance. See, e.g., Parker v. State, 206 S.W.3d 593, 598 n.21 (Tex. Crim.

App. 2006) (stating that exigent circumstances do not meet Fourth Amendment

standards if the government deliberately creates them). Nor does the deliberate

scheduling of only two patrol officers on that evening shift constitute an exigent

circumstance, for the same reason.          See id.   Furthermore, Officer Wilson

acknowledged that they could call upon nearby police agencies for assistance

when necessary, and as the trial court noted, Sergeant Moseley could have

returned to patrol.5


      5
       Even if Sergeant Moseley had been required to act as the jailer, thereby
leaving no officer on patrol, Officer Wilson testified that it was their general
practice for both officers on duty to work an accident scene, even if they were the
only two officers on duty at the time.


                                        8
      The State further argues that “drug impairment appears to defy precise

quantification regarding absorption/metabolization/elimination” and so it would

have been “impossible” for Officer Wilson to consider the dissipation of Xanax

during the investigatory phase and the reasonableness of the impact of additional

delay. There was no evidence offered at the suppression hearing regarding the

dissipation rate of Xanax, except for the testimony of Officer Wilson that he

personally did not know the rate of dissipation of Xanax—or of alcohol, for that

matter. Instead, the State now relies upon other cases in which experts testified

as to its dissipation rate. The State carried the burden of showing an exigent

circumstance.     It had the opportunity to present evidence that the rate of

dissipation of Xanax cannot be quantified, or that it dissipates so quickly as to

create an exigent circumstance, but it chose not do so. See McGee, 105 S.W.3d

at 615. Consequently, this argument is not persuasive.

      Finally, the State argues that the severity of the underlying crime—felony

DWI—supports finding that exigent circumstances existed. It refers us to Welsh

v. Wisconsin, 466 U.S. 740, 753, 104 S. Ct. 2091, 2099 (1984), which held that

an important factor in determining whether an exigency exists is “the gravity of

the underlying offense for which the arrest is being made.” But Welsh specifically

reasoned that while the “nature of the underlying offense” is an important factor,

it is not a sufficient factor in and of itself to create exigency. Id. at 751–53, 104 S.

Ct. at 2098–99; see also State v. Taylor, No. 02-14-00456-CR, 2015 WL




                                           9
4504806, at *2–3 (Tex. App.—Fort Worth July 23, 2015, pet. ref’d) (mem. op., not

designated for publication) (discussing Welsh).

      We cannot conclude that the trial court erred in its application of the law to

the facts by finding that exigent circumstances did not exist to support the

warrantless, nonconsensual seizure of McClendon’s blood.             We therefore

overrule the State’s first point.

      2. Section 724.012 of the Transportation Code

      In its remaining three points, the State relies upon section 724.012 of the

transportation code to justify the warrantless and nonconsensual blood draw.

But the court of criminal appeals recently held that warrantless blood or breath

samples taken without consent solely in reliance on transportation code

provisions such as section 724.012 violate the warrant requirement of the Fourth

Amendment. State v. Villarreal, 475 S.W.3d 784, 787, 804 (Tex. Crim. App.

2014).6    Officer Wilson’s good-faith belief that the statute authorized the

warrantless search does not overcome the exclusionary rule.          See Lewis v.

State, No. 02-13-00416-CR, 2015 WL 1119966, at *2 (Tex. App.—Fort Worth

Mar. 12, 2015, pet. ref’d) (mem. op., not designated for publication) (citing Burks

v. State, 454 S.W.3d 705, 709 (Tex. App.—Fort Worth 2015, pet. ref’d)). We

therefore overrule the State’s second, third, and fourth points.


      6
       At the time this case was submitted, the court of criminal appeals had
granted rehearing of the Villarreal decision. But on December 16, 2015, the
court of criminal appeals concluded that rehearing was improvidently granted and
denied the State’s motion for rehearing.


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                                 IV. CONCLUSION

         We hold that the trial court did not err by granting McClendon’s motion to

suppress the results of the warrantless blood draw, and we affirm the trial court’s

order.



                                                    /s/ Bonnie Sudderth
                                                    BONNIE SUDDERTH
                                                    JUSTICE


PANEL: DAUPHINOT, GARDNER, and SUDDERTH, JJ.

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

DELIVERED: February 25, 2016




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