                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-13-00109-CR

MICHAEL ANTHONY MCGRUDER,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee



                           From the 85th District Court
                               Brazos County, Texas
                         Trial Court No. 11-05822-CRF-85


                                     OPINION


      Michael Anthony McGruder was convicted of the offense of driving while

intoxicated, a felony offense, and sentenced to 30 years in prison. See TEX. PENAL CODE

ANN. § 49.04 (West 2011). Because section 724.012(b)(3)(B) of the Texas Transportation

Code is not unconstitutional, we affirm the trial court’s judgment.

BACKGROUND

      In September of 2011, McGruder was stopped by a College Station police officer
because McGruder’s pickup matched the description of a suspicious vehicle in the area.

After McGruder got out of his pickup, the officer who initially stopped McGruder and

another officer who had arrived at the scene noted that, even from a distance,

McGruder smelled of alcohol. McGruder responded to questioning by the officers and

gave “nonsensical” and conflicting answers. He also refused to perform any field

sobriety exercises. McGruder was arrested and refused to submit to a breath or blood

test. After McGruder’s pickup was inventoried and towed, McGruder was taken to the

police department where an officer began to prepare a search warrant to obtain a

sample of McGruder’s blood. During the process of preparing the warrant, the officer

learned that McGruder had two prior DWI convictions.         At that time, the officer

discontinued preparing the warrant and began working on the “mandatory blood

draw” paperwork. The officer testified that a blood draw becomes mandatory when a

DWI suspect has two prior DWI convictions. McGruder was then taken to the hospital

and his blood was drawn.

OBJECTION AND ISSUE

       At his trial in 2013, McGruder objected to the State’s introduction of the blood

draw kit and the blood draw vial on the basis that section 724.012 of the Texas

Transportation Code, the section which contains the mandatory blood draw provision,




McGruder v. State                                                                Page 2
is unconstitutional in that it allows for the seizure of evidence without a warrant.1 The

trial court overruled his objection. On appeal, McGruder contends in one issue that,

absent exigent circumstances or consent, section 724.012(b)(3)(B) of the Texas

Transportation Code violates the Texas and United States Constitutional provisions

against unreasonable searches and seizures. We construe McGruder’s argument to be a

facial challenge to the constitutionality of that portion of the statute.2

THE STATUTE

        As it applies to this case, section 724.012(b) provides:

        (b) A peace officer shall require the taking of a specimen of the person's
        breath or blood under any of the following circumstances if the officer arrests
        the person for an offense under Chapter 49, Penal Code, involving the
        operation of a motor vehicle or a watercraft and the person refuses the
        officer's request to submit to the taking of a specimen voluntarily:
        ***
         (3) at the time of the arrest, the officer possesses or receives reliable
        information from a credible source that the person:
        ***
        (B) on two or more occasions, has been previously convicted of or placed on
        community supervision for an offense under Section 49.04, 49.05, 49.06, or

1 McGruder later objected to the lab report which contained the blood alcohol content results of
McGruder’s blood test by stating, “Renew my earlier objection.” He did not however, object to the
chemist’s testimony prior to the introduction of the lab report that McGruder’s blood alcohol content was
.09 grams per 100 milliliters. We note that there was no motion to suppress filed; only objections made to
the various exhibits as they were introduced into evidence. The Amicus Curiae, presented by the Texas
Criminal Defense Lawyers Association, argues the trial court erred in overruling the objections to the kit,
vial, and lab report. The Amicus Curiae does not address the admission, without objection, of the blood
alcohol content testimony. Nevertheless, this is not the issue that McGruder has presented on appeal.
Rather, McGruder raises a direct challenge to the constitutional validity of the “mandatory” blood draw
provision.

2McGruder does not argue that the Texas Constitution provides any greater or different protection than
the United States Constitution; thus we treat them as the same in this context. See Luquis v. State, 72
S.W.3d 355, 364 (Tex. Crim. App. 2002).

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       49.065, Penal Code, or an offense under the laws of another state containing
       elements substantially similar to the elements of an offense under those
       sections.

TEX. TRANSP. CODE ANN. § 724.012(b)(3)(B) (West 2011).

MCNEELY

       Relying on the recent opinion from the United States Supreme Court in Missouri

v. McNeely, ___ U.S. ___, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013), McGruder argues that

because section 724.012(b)(3)(B) does not require any exigent circumstance for a

warrantless blood draw, it impermissibly narrows the constitutional right to be free

from unreasonable searches and seizures and should be declared unconstitutional.

       Generally speaking, drawing blood from a suspect is a search and seizure within

the scope of the Fourth Amendment to the United States Constitution. See Schmerber v.

California, 384 U.S. 757, 767, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966). A warrantless seizure

of a blood sample, however, can be constitutionally permissible if officers have probable

cause to arrest a suspect, exigent circumstances exist, and a reasonable method of

extraction is available. Id. at 767-68.

       In McNeely, the United States Supreme Court addressed the issue of whether the

Fourth Amendment required police to obtain a warrant before taking a blood sample

from a non-consenting driver suspected of driving while intoxicated. McNeely, 133 S.

Ct. at 1556.    The Court concluded that the natural dissipation of alcohol in the

bloodstream did not present a per se exigency that justified an exception to the warrant


McGruder v. State                                                                      Page 4
requirement for non-consensual blood testing in all DWI cases. Id. Instead, the Court

recognized that, sometimes, exigent circumstances, based in part on the rapid

dissipation of alcohol in the body, may allow law enforcement to obtain a blood sample

without a warrant but that courts must determine on a case-by-case basis whether

exigent circumstances exist, considering the totality of the circumstances. Id.

          Prior to McNeely, at least one Texas appellate court had interpreted section

724.012(b) to be an exception to the Fourth Amendment warrant requirement; that is, no

warrant was necessary to draw the defendant’s blood if he refused to consent to the

blood draw and had two prior DWI convictions. See Aviles v. State, 385 S.W.3d 110, 112

(Tex. App.—San Antonio 2012, pet. ref'd), vacated, 134 S. Ct. 902, 187 L. Ed. 2d 767

(2014), op. on remand, ___ S.W.3d ___, 2014 Tex. App. LEXIS 8508 (Tex. App.—San

Antonio Aug. 6, 2014, no pet. h.). But the United States Supreme Court vacated that

court’s judgment and remanded the case to the court of appeals for further

consideration in light of McNeely. Aviles, 134 S. Ct. at 902. Since then, Texas appellate

courts have held that a non-consensual blood draw without a warrant pursuant to

section 724.012(b) and without evidence of exigent circumstances other than simply the

rapid dissipation of alcohol in the bloodstream violates a defendant’s Fourth

Amendment rights.3 See Douds v. State, No. 14-12-00642-CR, 2014 Tex. App. LEXIS 6152

(Tex. App.—Houston [14th Dist.] June 5, 2014, pet. filed) (op. on rh’g) (publish); Weems


3   This is not the issue we have been asked to decide and express no opinion regarding that issue.

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v. State, No. 04-13-00366-CR, 2014 Tex. App. LEXIS 5109 (Tex. App.—San Antonio May

14, 2014, pet. filed) (publish); Reeder v. State, No. 06-13-00126-CR, 2014 Tex. App. LEXIS

4558 (Tex. App.—Texarkana April 29, 2014, pet. filed) (publish); Sutherland v. State, No.

07-12-00289-CR, 2014 Tex. App. LEXIS 3694 (Tex. App.—Amarillo, April 7, 2014, pet.

filed) (publish); Villarreal v. State, No. 13-13-00253-CR, 2014 Tex. App. LEXIS 645 (Tex.

App.—Corpus Christi Jan. 23, 2014, pet. granted) (publish). See also Baker v. State, No.

12-12-00092-CR, 2013 Tex. App. LEXIS 12818 (Tex. App.—Tyler Oct. 16, 2013, pet.

granted) (not designated for publication) (trial court could have reasonably concluded

State failed to show warrantless blood draw was supported by exigent circumstances).

Contra Perez v. State, No. 01-12-01001-CR, 2014 Tex. App. LEXIS 2681 (Tex. App.—

Houston [1st Dist.] Mar. 11, 2014, no pet. h.) (publish) (motion for rehearing filed;

response requested by the court; response filed).

FACIAL CONSTITUTIONAL CHALLENGE

       But McGruder asks us to find that section 724.012(b)(3)(B) is unconstitutional. To

prevail on a facial challenge, a party must establish that the statute always operates

unconstitutionally in all possible circumstances. State v. Rosseau, 396 S.W.3d 550, 557

(Tex. Crim. App. 2013). A facial challenge to a statute is the most difficult challenge to

mount successfully because the challenger must establish that no set of circumstances

exists under which the statute will be valid. Santikos v. State, 836 S.W.2d 631, 633 (Tex.

Crim. App. 1992).


McGruder v. State                                                                   Page 6
       Whether a statute is facially constitutional is a question of law that we review de

novo. Ex parte Lo, 424 S.W.3d 10, 14 (Tex. Crim. App. 2013). When the constitutionality

of a statute is attacked, we begin with the presumption that the statute is valid and that

the legislature has not acted unreasonably or arbitrarily. Id. at 14-15. The burden

normally    rests   upon   the   person   challenging   the   statute   to   establish   its

unconstitutionality. Id. at 15. In the absence of contrary evidence, we will presume that

the legislature acted in a constitutionally sound fashion. Rodriguez v. State, 93 S.W.3d

60, 69 (Tex. Crim. App. 2002).

       Section 724.012(b) merely requires an officer to take a blood or breath specimen

in certain circumstances. What makes the statute mandatory is that the officer has no

discretion in those situations to obtain either a blood or a breath specimen. It does not

mandate, nor does it purport to authorize, a specimen be taken without compliance

with the Fourth Amendment. And although the Court of Criminal Appeals has said

that the implied consent law, the body of law in which this particular statute is

contained, enables officers to draw blood in certain limited circumstances, a.k.a. exigent

circumstances, even without a search warrant, the Court also said that the law did not

give officers the ability to forcibly obtain blood samples from anyone just because they

were arrested for DWI. Beeman v. State, 86 S.W.3d 613, 616 (Tex. Crim. App. 2002).

Further, the Court did not hold in Beeman, and has not yet held, that section 724.012(b)

is an exception to the Fourth Amendment’s warrant requirement such as the consent


McGruder v. State                                                                    Page 7
exception or the exigent circumstances exception. See Villarreal v. State, No. 13-13-00253-

CR, 2014 Tex. App. LEXIS 645, *35 (Tex. App.—Corpus Christi Jan. 23, 2014, pet.

granted) (publish).

        Further, as written, section 724.012(b) does not require a blood or breath

specimen to be taken contrary to the Fourth Amendment; that is, without a warrant or

without a recognized exception to the warrant requirement. See Forsyth v. State, No. 11-

12-00198-CR, 2014 Tex. App. LEXIS 8381, *22 (Tex. App.—Eastland July 31, 2014) (no

pet. h.) (publish) (“…Section 724.012 does not instruct an officer to take a person's blood

without a warrant or in violation of the Fourth Amendment,” citing Villarreal v. State,

No. 13-13-00253-CR, 2014 Tex. App. LEXIS 645 (Tex. App.—Corpus Christi Jan. 23, 2014,

pet. granted) (publish)).4 We agree with the Houston Court of Appeals when it aptly

noted, “We have no reason to fault the constitutionality of the mandatory blood draw

statute in this case because it did not require [the officer] to obtain a blood draw

without first securing a warrant. It is the officer's failure to obtain a warrant and the

State's failure to prove an exception to the warrant requirement, not the mandatory

nature of the blood draw statute, that violate the Fourth Amendment.” Douds v. State,

No. 14-12-00642-CR, 2014 Tex. App. LEXIS 6152, *48-49 (Tex. App.—Houston [14th

Dist.] June 5, 2014, pet. filed) (op. on rh’g) (publish).

4Other courts of appeals agree with this interpretation. See Douds v. State, No. 14-12-00642-CR, 2014 Tex.
App. LEXIS 6152, *46 (Tex. App.—Houston [14th Dist.] June 5, 2014, pet. filed) (op. on rh’g) (publish);
Weems v. State, No. 04-13-00366-CR, 2014 Tex. App. LEXIS 5109, * 24 (Tex. App.—San Antonio May 14,
2014, pet. filed) (publish); Reeder v. State, No. 06-13-00126-CR, 2014 Tex. App. LEXIS 4558, *14 n. 10 (Tex.
App.—Texarkana April 29, 2014, pet. filed) (publish).

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       McGruder has failed to point us to anything else that would show the statute to

be unconstitutional. Thus, McGruder’s facial challenge to the statute must fail, and we

presume the statute to be constitutionally valid.

CONCLUSION

       Accordingly, McGruder’s sole issue is overruled, and the trial court’s judgment

is affirmed.




                                         TOM GRAY
                                         Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
       (Justice Davis dissenting)
Affirmed
Opinion delivered and filed August 14, 2014
Publish
[CRPM]




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