                          PD-1276-15                                       PD-1276-15
                                                         COURT OF CRIMINAL APPEALS
                                                                          AUSTIN, TEXAS
                                                         Transmitted 9/25/2015 2:39:05 PM
                                                          Accepted 9/30/2015 11:56:42 AM
                                                                           ABEL ACOSTA
                             NO.PD-_ _                                             CLERK

                                IN THE
                      COURT OF CRIMINAL APPEALS
                              OF TEXAS


THE STATE OF TEXAS                                       APPELLANT

v.
VICENTE MUNOZ                                              APPELLEE



        THE STATE'S PETITION FOR DISCRETIONARY REVIEW



     FROM THE COURT OF APPEALS, EIGHTH DISTRICT OF TEXAS
                 CAUSE NUMBER 08-13-00164-CR

                                JAIME ESPARZA
                                DISTRICT ATTORNEY
                                34th JUDICIAL DISTRICT

                                DOUGLAS K. FLETCHER
                                ASST. DISTRICT ATTORNEY
                                DISTRICT ATTORNEY'S OFFICE
                                500 E. SAN ANTONIO, ROOM 201
                                EL PASO, TEXAS 79901
                                (915) 546-2059 ext. 4402
                                FAX: (915) 533-5520
                                SBN: 24006412
     September 30, 2015
                                ATTORNEYS FOR THE STATE
                  IDENTITY OF PARTIES AND COUNSEL

APPELLANT: The State of Texas, 34th Judicial District Attorney's Office,
represented in the trial court by:
      Jaime Esparza, District Attorney
      Ghalib A. Serang, Assistant District Attorney
      Dolores Reyes, Assistant District Attorney

On appeal by:
     Jaime Esparza, District Attorney
     Douglas K. Fletcher, Assistant District Attorney

and on petition for discretionary review by:
      Jaime Esparza, District Attorney
      Douglas K. Fletcher, Assistant District Attorney
      500 E. San Antonio, Room 201
      El Paso, Texas 79901
      (915) 546-2059

APPELLEE: Vicente Munoz, represented in the trial court by:
    Cary Antwine
    8732 Alameda St.
    El Paso, Texas 79901
    (915) 85 8-0665

and on appeal by:
      Matthew DeKoatz
      P.O. Box 1886
      El Paso, Texas 79950

TRIAL COURT: 171 st District Court, Honorable Judge Bonnie Rangel, presiding

COURT OF APPEALS: Eighth Court of Appeals, Honorable Chief Justice Ann
Crawford McClure, Honorable Justice Yvonne T. Rodriguez, and Honorable
Justice Steven Hughes




                                        11
                          TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL                                            11


INDEX OF AUTHORITIES                                                       v

STATEMENT REGARDING ORAL ARGUMENT                                          Vl


STATEMENT OF THE CASE                                                     Vll


STATEMENT OF PROCEDURAL HISTORY                                          Vlll


GROUNDS FOR REVIEW                                                          1

FACTUAL SUMMARY                                                           1-2

GROUND FOR REVIEW ONE:                                                      3
The Eighth Court of Appeals erred in holding that a nonconsensual blood
draw pursuant to the mandatory-blood-draw and implied-consent provisions
set forth in Chapter 724 of the Texas Transportation Code violated the Fourth
Amendment.

GROUND FOR REVIEW TWO:                                                   4-6
The Eighth Court of Appeals erred in holding that the pre-McNeely
warrantless blood draw in this case violated the Fourth Amendment where
the officer obtained the blood-draw evidence based upon an objectively
reasonable, but ultimately mistaken belief that the mandatory blood-draw
provisions fell under a constitutionally valid exception to the Fourth
Amendment's warrant requirement.

PRAYER                                                                     7

SIGNATURES                                                                 7

CERTIFICATE OF COMPLIANCE                                                  8

CERTIFICATE OF SERVICE                                                     8

APPENDIX A                                                                 9


                                     iii
APPENDIXB        10




            iv
                                    INDEX OF AUTHORITIES

FEDERAL CASES

Heien v. North Carolina, _U.S._, 135 S.Ct. 530,
190 L.Ed.2d. 475 (2014) ..................................................................................      4-6

McNeely v. Missouri, _U.S._, 133 S.Ct. 1552,
185 L.Ed.2d 696 (2014) ......................................................................................     3

Michigan v. DeFillippo, 443 U.S. 31, 99 S.Ct. 2627,
61L.Ed.2d343 (1979) ........................................................................................      5


STATE CASES

Burcie v. State, No. 08-13-00212-CR, 2015 WL 2342876
(Tex. App.-El Paso 14 May 2015, pet. filed)
(not designated for publication) ..........................................................................       6

Munoz v. State, No. 08-13-00164-CR, 2015 WL 4719559
(Tex. App.-El Paso 31July2015, pet. filed)
(not released for publication) ........................................................................      viii, 3

State v. Villarreal, No. PD-0306-14, 2014 WL 6734178
(Tex. Crim. App. 26 November 2014, reh'g granted)......................................                         3, 6


STATUTES AND RULES

TEX PENAL CODE §38.23(a) ............................................................................             4

TEX. R. APP. P. 68.2(a) ....................................................................................    v111

TEX. TRANSP. CODE §724.012(b)(3)(B) .....................................................                       2, 5




                                                          v
                  STATEMENT REGARDING ORAL ARGUMENT

      The State does not believe that oral argument is necessary in this case, as the

State's arguments are and will be set out fully in this petition and brief, should this

Court grant review. However, should this Court determine that oral argument

would be helpful in resolving the issue raised in this petition, the State would

certainly welcome the opportunity to appear before the Court.




                                           Vl
                              STATEMENT OF THE CASE

       On 5 September 2009, Vicente Munoz (hereinafter referred to as Munoz)

was arrested for driving while intoxicated (DWI). (SX 15-16). 1 Munoz refused to

perform any standardized field-sobriety tests (SFSTs) or submit a sample of his

breath. (SX 1 at 15-16). As Munoz had seven prior convictions for DWI, the

arresting officer took Munoz to a local hospital for a blood draw as mandated by

Texas law. (SX 1 at 16-17, 22). Munoz' blood-alcohol level was .25. (Supp. RR at

12, 31 ). On 26 June 2012, Munoz was indicted for the felony offense of DWI, third

or more. (CR at 3). The trial court denied Munoz' motion to suppress the evidence

from his warrantless blood draw. (SX 1 of RR 4 at 30, RR 2 at 23). A jury trial

began on 13 May 2013. (Supp. RR at 1). On 14 May 2013, the trial court, sua

sponte, set aside its prior order denying Munoz' motion to suppress the blood-draw

evidence and reopened the motion-to-suppress hearing. (RR 3 at 5, 10). After

receiving testimony from the arresting officer, the trial court granted Munoz'

motion to suppress, declared a mistrial, and dismissed the jury. (RR 3 at 6-17, 27).




1
 Throughout this brief, references to the record will be made as follows: references to the clerk's
record will be made as "CR" and page number; references to the reporter's record will be made
as "RR" and volume and page number; references to the supplemental reporter's record will be
made as "Supp. RR" and page number; and references to exhibits will be made as either "SX" or
"DX" and exhibit number.
                                                Vll
                   STATEMENT OF PROCEDURAL HISTORY

      On 16 May 2013, the State requested that the trial court reconsider its order

granting Munoz' motion to suppress. (RR 4 at 4). The trial court denied the State's

motion to reconsider on 20 May 2013. (CR at 115). On 22 May 2013, the trial

court issued findings of fact and conclusions oflaw. (CR at 116-118). The State

timely filed notice of appeal on 6 June 2013. (CR at 120).

      On 31July2015, the Eighth Court of Appeals affirmed the trial court's

granting of Munoz' motion to suppress the results of his mandatory blood draw.

See Munoz v. State, No. 08-13-00164-CR, 2015 WL 4719559 at *7 (Tex. App.-El

Paso 31 July 2015, no pet. h.) (not yet released for publication). See (Appendix A).

      On 14 August 2015, the State timely filed a request for rehearing. The

Eighth Court of Appeals denied, without written opinion, the State's motion for

rehearing on 26 August 2015.

      The State now timely files this petition for discretionary review (PDR)

pursuant to rule 68.2(a) of the Texas Rules of Appellate Procedure. See TEX. R.

APP. P. 68.2(a).




                                         Vlll
                           GROUNDS FOR REVIEW

GROUND FOR REVIEW ONE: The Eighth Court of Appeals erred in
holding that a nonconsensual blood draw pursuant to the mandatory-blood-
draw and implied-consent provisions set forth in Chapter 724 of the Texas
Transportation Code violated the Fourth Amendment.

GROUND FOR REVIEW TWO: The Eighth Court of Appeals erred in
holding that pre-McNeely warrantless blood draw in this case violated the
Fourth Amendment where the officer obtained the blood-draw evidence based
upon an objectively reasonable, but ultimately mistaken belief that the
mandatory blood-draw provisions fell under a constitutionally valid exception
to the Fourth Amendment's warrant requirement.

                             FACTUAL SUMMARY

      On 5 September 2009, El Paso Police Department Officer Jordan was

dispatched to investigate a report of a suspicious vehicle that had stopped and

remained parked for a lengthy time with its engine off and its lights on. (SX 1 at

10). No one had entered or exited the vehicle. (SX 1 at 19). Officer Jordan

observed Munoz asleep in the driver's seat with a large can of beer between his

thighs. (SX 1 at 14). Officer Jordan detected a very strong odor of an unknown

alcoholic beverage emanating from Munoz and the vehicle. (SX 1 at 14 ). Officer

Jordan woke up Munoz. (SX 1 at 15). As Officer Jordan was talking with Munoz,

she noted that he had slurred speech and red, bloodshot eyes. (SX 1 at 15). When

Munoz exited the vehicle, Officer Jordan observed that he had an unsteady balance

and that he looked disheveled. (SX 1 at 15). Munoz refused Officer Jordan's

request that he perform some standardized field-sobriety tests (SFSTs) and provide


                                          1
a sample of his breath. (SX 1 at 15-16). After being advised of his statutory rights,

Munoz again refused to submit to a breath test. (SX 1 at 16). Munoz was taken into

custody and transported to the police station. (SX 1 at 16). Officer Jordan learned

that Munoz had seven prior convictions for DWI. (SX 1 at 16-17, 22). As required

by section 724.012(b)(3)(B) of the Texas Transportation Code, Munoz was taken

to a local hospital where a blood sample was drawn. (SX 1 at 17). TEX. TRANSP.

CODE §724.012 (b)(3). Officer Jordan did not seek a warrant for the blood draw

due to the Texas mandatory blood-draw statute. (RR 3 at 14-15, 17). Munoz'

blood-alcohol level was .25. (Supp. RR at 12, 31 ).




                                           2
GROUND FOR REVIEW ONE:The Eighth Court of Appeals erred in
holding that a nonconsensual blood draw pursuant to the mandatory-blood-
draw and implied-consent provisions set forth in Chapter 724 of the Texas
Transportation Code violated the Fourth Amendment.

                       ARGUMENT AND AUTHORITIES

      On 31 July 2015, the Eighth Court of Appeals rendered its decision

affirming the trial court's granting of Munoz' motion to suppress the results of his

mandatory blood draw. See Munoz, 2015 WL 4719559 at *7. See (Appendix A).

The Eighth Court of Appeals rejected the State's arguments that the United States

Supreme Court's decision in McNeely v. Missouri, _U.S._, 133 S.Ct. 1552, 185

L.Ed.2d 696 (2014), did not overrule the implied-consent provisions in the Texas

Transportation Code. See Munoz, 2015 WL 4719559 at *5. This Court has granted

the State's motion for rehearing in Villarreal2 regarding some of the same issues

presented by State in the present case. See (State's Motion for Rehearing and

Amended Motion for Rehearing in Villarreal). (Appendix B). In light of the

"uncertain precedential value" of Villarreal and the reasons set forth in the State's

brief on original appeal, this Court should grant the State's Petition for

Discretionary Review. See Munoz, 2015 WL 4719559 at *4 n.4, *5.




2
 State v. Villarreal, No. PD-0306-14, 2014 WL 6734178 (Tex. Crim. App. 26 November 2014,
reh' g granted).
                                            3
GROUND FOR REVIEW TWO: The Eighth Court of Appeals erred in
holding that the pre-McNeely warrantless blood draw in this case violated the
Fourth Amendment where the officer obtained the blood-draw evidence based
upon an objectively reasonable, but ultimately mistaken belief that the
mandatory blood-draw provisions fell under a constitutionally valid exception
to the Fourth Amendment's warrant requirement.

                       ARGUMENT AND AUTHORITIES

I. Munoz' pre-McNeely warrantless blood draw did not violate the Fourth
Amendment.

      The Texas exclusionary rule, as set forth in article 38.23 of the Texas Code

of Criminal Procedure, provides that "no evidence obtained by an officer or other

person in violation of any provision 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 an accused on trial of any criminal case." TEX.

CODE CRIM PROC. art. 38.23(a). In the present case, the arresting officer acted

in objectively reasonable compliance with a presumptively valid statute, and thus,

there was no violation of the Fourth Amendment, and the exclusionary rule of

article 38.23 is not applicable.

      On 15 December 2014, the United States Supreme Court issued its opinion

in Heien v. North Carolina, _U.S._, 135 S.Ct. 530, 190 L.Ed.2d. 475 (2014). In

Heien, a North Carolina deputy sheriff conducted a traffic stop ofHeien after

observing that his vehicle had only one operable brake light. Id. at 534. The deputy

became suspicious when Heien and his passenger acted nervously and gave


                                          4
inconsistent stories about their itinerary. Id. After Heien consented to a search of

his vehicle, the deputy found a plastic baggie containing cocaine. Id. Heien's

motion to suppress was denied by the trial court. Id. The North Carolina Court of

Appeals reversed, however, after determining that the traffic stop was illegal

because North Carolina law only required one working brake light. Id. at 535. The

case eventually reached the United States Supreme Court. Id. Declaring that "the

ultimate touchstone of the Fourth Amendment is reasonableness" and that "to be

reasonable is not to be perfect," the Court held that a reasonable, mistaken belief as

to the law does not violate the Fourth Amendment. Id. at 536.

      At the time of Munoz' arrest for driving while intoxicated, Texas

Transportation Code section 724.012(b)(3)(B) clearly mandated that, due to his

prior DWI convictions, a sample of his blood be obtained. TEX. TRANSP. CODE

§724.012(b)(3)(B). Officer Jordan acted under an objectively reasonable belief that

the blood-draw statute was lawful. See Michigan v. DeFillippo, 443 U.S. 31, 38, 99

S.Ct. 2627, 61 L.Ed.2d343 (1979) (finding that the enactment of a law forecloses

speculation by law-enforcement officers concerning its constitutionality). As

recently stated in Heien, when "the law turns out not to be what was thought, the

result is the same," there is no violation of the Fourth Amendment. See Heien, 135

S.Ct. at 536. And because Munoz' blood draw was conducted in compliance with a




                                          5
presumptively valid statute, the officers did not violate the law, and thus, there

was no Fourth Amendment violation. See Heien, 135 S.Ct. at 536. 3




3
 Nothing in the record indicates that Officer Jordan's badge came with a crystal ball attached,
and thus, she would have had no reason to believe her actions on 5 September 2009, were
unlawful based on court decisions five years in the future, See, e.g., Villarreal, 2014 WL
6734178 at *1, decided on 26 November 2014; Burcie v. State, No. 08-13-00212-CR, 2015 WL
2342876at*1 (Tex. App.-El Paso 14 May 2015, pet. filed) (not designated for publication).
                                               6
                                    PRAYER

   WHEREFORE, the State prays that this petition for discretionary review be

granted, and that upon hearing, the Court reverse the judgment of the Court of

Appeals and remand the case to the trial court for such proceedings as may be

appropriate.

                                      Respectfully submitted,

                                      JAIME ESPARZA
                                      DISTRICT ATTORNEY
                                      34th JUDICIAL DISTRICT

                                      Isl Douglas Fletcher
                                      DOUGLAS K. FLETCHER
                                      ASST. DISTRICT ATTORNEY
                                      DISTRICT ATTORNEY'S OFFICE
                                      500 E. SAN ANTONIO, ROOM 201
                                      EL PASO, TEXAS 79901
                                      (915) 546-2059 ext. 4402
                                      FAX: (915) 533-5520
                                      EMAIL: dfletcher@epcounty.com
                                      SBN: 24006412

                                      ATTORNEYS FOR THE STATE




                                         7
                      CERTIFICATE OF COMPLIANCE

The undersigned does hereby certify that the foregoing petition for discretionary

review contains 1192 words.



                                       Isl Douglas Fletcher
                                       DOUGLAS K. FLETCHER



                         CERTIFICATE OF SERVICE

      The undersigned does hereby certify that on 25 September 2015:

( 1) a copy of the foregoing petition for discretionary review was electronically
served upon appellee's attorney, Matthew DeKoatz at mateodekoatz@yahoo.com,

(2) a copy of the foregoing petition for discretionary review was electronically
served upon the State's Prosecuting Attorney at Lisa.McMinn@spa.texas.gov


                                       Isl Douglas Fletcher
                                       DOUGLAS K. FLETCHER




                                          8
APPENDIX A




    9
State v. Munoz, --- S.W.3d ---- (2015)




              2015 WL 4719559                   Affirmed.
           Only the Westlaw citation
            is currently available.

   NOTICE: THIS OPINION HAS NOT                  West Headnotes (4)
 BEEN RELEASED FOR PUBLICATION
 IN THE PERMANENT LAW REPORTS.
                                                 [1]   Criminal Law
   UNTIL RELEASED, IT IS SUBJECT                        ~ Theory and Grounds of Decision
   TO REVISION OR WITHDRAWAL.
                                                       in Lower Court
           Court of Appeals of Texas,                  Appellate court must uphold the trial
                    El Paso.                           court's ruling if it is supported by the
                                                       record and correct under any theory
         The State of Texas, Appellant,                oflaw applicable to the case, and this
                             v.                        principal holds true even when the
            Vicente Munoz, Appellee.                   trial judge gives the wrong reason for
                                                       his decision, and is especially true
                No. 08-13-00164-                       with regard to admission of evidence.
               CR I July 31, 2015
                                                       Cases that cite this headnote
Synopsis
Background: State appealed from decision
of the 171 st District Court, El Paso County,    [2]   Automobiles
granting defendant's suppression motion.                """" Right to take sample or conduct
                                                       test; initiating procedure
                                                       Automobiles
                                                        ~ Grounds or cause; necessity for
Holdings: The Court of Appeals, Yvonne T.              arrest
Rodriguez, J., held that:
                                                       Nonconsensual search of intoxicated
                                                       driving suspect's blood conducted
[ 1] nonconsensual search of defendant's
                                                       pursuant to the rnandatory-blood-
blood conducted pursuant to the mandatory-
                                                       draw and implied-consent provisions
blood-draw and implied-consent provisions
                                                       in the Transportation Code, when
in Transportation Code violated the Fourth
                                                       undertaken in the absence of a
Amendment, and
                                                       warrant or any applicable exception
                                                       to the warrant requirement, violated
[2] statute, providing that evidence may not
                                                       the Fourth Amendment; there were
be admitted unless evidence was obtained by
                                                       no exigent circumstances, and
officer acting upon a warrant, did not apply
                                                       Transportation Code's mandatory-
since no warrant was issued.
                                                       blood-draw was not a valid exception
State v. Munoz, --- S.W.3d ---- (2015)



        to the Fourth Amendment. U.S.
        Const. Amend. 4; Tex. Transp. Code               Cases that cite this headnote
        Ann.§ 724.012(b).

         Cases that cite this headnote
                                                  Appeal from the 171 st District Court of El Paso
 [3]     Courts                                   County, Texas, (TC# 20120D03021)
          ~ In general; retroactive or
         prospective operation                    Attorneys and Law Firms
        Supreme     Court's   holding    m        Jaime E. Esparza, District Attorney, El Paso,
        McNeely, 133 S.Ct. 1552, that             TX, for State.
        natural metabolization of alcohol
        in the bloodstream does not               Matthew DeKoatz, Attorney at Law, for
        present a per se exigency that            Appellee.
        justifies an exception to the
        Fourth Amendment's search warrant         Before McClure, C. J., Rivera, and Rodriguez,
        requirement for nonconsensual             JJ.
        blood testing in all drunk-driving
        cases, applied to case on direct
        appeal since case was not yet final                          OPINION
        when McNeely was decided. U.S.
        Const. Amend. 4.                          YVONNE T. RODRIGUEZ, Justice

         Cases that cite this headnote             *1 Vicente Munoz was charged by indictment
                                                  of Felony driving while intoxicated. The State
                                                  of Texas appeals the trial court's order granting
 [4]     Criminal Law
                                                  Vicente Munoz's motion to suppress his blood
          ~ Applicability when no warrant
                                                  test result that was obtained as a result of his
         sought or yet obtained
                                                  arrest for DWI. The trial court's findings of fact
         Exception to statute excluding           and conclusions of law reflect the sole basis
         unconstitutionally           obtained    for suppression of the blood test result was the
         evidence, when the evidence was          State's failure to show exigent circumstances to
         obtained by a law enforcement            support the warrantless, non-consensual blood
         officer acting in objective good faith   draw. Finding the State failed to establish a
         reliance upon a warrant, did not         valid exception to the warrant requirement, we
         apply to case in which no warrant        affirm the trial court's suppression order.
         was issued. U.S. Const. Amend. 4;
         Tex. Crim. Proc. Code Ann. art.
         38.23(b).
                                                             FACTUAL SUMMARY
State v. Munoz, --- S.W.3d ---- (2015)



On September 5, 2009, about 8: 17 p.m., El Paso     After Munoz was placed in custody, it was
Police Officer Jordan was on patrol when she        determined he had seven prior convictions for
was dispatched to a call involving a suspicious     DWI. Based on Munoz's prior convictions, he
vehicle. The reporter had observed a red pickup     was immediately taken to the hospital for a
truck sitting in the street, with the engine off    mandatory blood draw.
and the headlights on. Officer Jordan arrived
at approximately 8:20 p.m. and spoke with the
reporter. Officer Jordan approached the truck
                                                         PROCEDURAL BACKGROUND
on the driver's side. The officer discovered
Munoz asleep in the front seat with a can of        On December 14, 2012, the trial court, after
beer between his legs, the keys in the ignition,    a hearing on a motion to suppress statements,
the engine off, and the headlights on. Officer      evidence, and the blood test result, orally
Jordan woke Munoz up and smelled a strong           denied the motion. On May 2, 2013, Munoz
odor of an alcoholic beverage. When Munoz           filed a second motion to suppress the blood test
exited the truck, the officer observed him to       result relying on Missouri v. McNeely, - U.S.
have an unsteady balance, red blood-shot eyes,      - , 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013).
and exhibit slurred speech. Munoz refused to        On May 6, 2013, the trial court heard argument
submit to a breath test. Munoz was transported      of counsel regarding Munoz's second motion
to the station at 9: 13 p.m. The station is about   to suppress and denied it again. On the day
five to six blocks away and it takes a couple of    of Munoz's jury trial, May 14, 2013, the trial
minutes from Munoz's vehicle to arrive there.       court heard additional testimony from Officer
                                                    Jordan and suppressed the blood test result. 1
On the way to the station, Officer Jordan passed
                                                    Munoz argued that no exigent circumstances
the Municipal Court building which houses a
                                                    were shown and a warrantless blood draw
magistrate on duty from 9:00 p.m. to 8:00 a.m.
                                                    could not be permitted under McNeely. The
every night. Officer Jordan stated that to get
                                                    State argued McNeely did not apply in states
a warrant, she would have to go before the
                                                    which had legislatively-mandated blood draws
magistrate, "get it signed and get the warrant."
                                                    for repeat offenders such as Texas. Next, the
She acknowledged she did not attempt to get
                                                    State contended the blood test result should not
a warrant nor was she prevented from getting
                                                    be excluded because the officers were acting in
one. Officer Jordan testified that she was aware
                                                    good-faith reliance upon the law.
that she could have obtained a warrant had
she wanted. Officer Jordan explained to the
                                                         The trial court heard the initial motion to suppress in
court that she did not get a warrant because at
                                                         December 2014. McNeeZv was decided in April 2013,
that time the law allowed a mandatory blood              and the trial court's suppression order was rendered a
draw if an individual had two prior convictions.         month later.
She stated the only reason she failed to obtain     *2 The trial court entered thirty-six findings
the warrant was because she relied on the           of fact and six conclusions of law. The relevant
mandatory blood draw statute.                       Findings of Fact are as follows:
State v. Munoz, --- S.W.3d ---- (2015)




   5. At 8:22 p.m., Detective Jordan arrived at         34. At 10:25 p.m., Officer Art Senclair
                2                                       followed Texas Transportation Code
   the scene.
                                                        section 724.012(b )(3)(B), and transported
                                                        Defendant to Las Palmas hospital for a blood
                                                        draw.
   18. Defendant declined to submit to
   Standardized Field Sobriety Tests (SFSTs)            35. Registered nurse Michael Windham
   and the breath test.                                 drew Defendant's blood at Las Palmas
                                                        hospital.

                                                        36. The lab result revealed that Defendant's
   26. Approximately 10 minutes elapsed from            blood alcohol level was 0.23.
   the time Detective arrived at the scene to the
   time Detective arrested the Defendant.           The relevant Conclusions of Law are as
                                                    follows:

                                                        1. Missouri v. McNeely, 133 S.Ct. 1552
   28. At 9: 15 p.m., Defendant arrived at the          requires exigent circumstances in order to
   station.                                             conduct a warrantless blood draw.
   29. At the station, EPPD Officer Art
   Senclair discovered that the Defendant had
   at least two prior Driving While Intoxicated         3. The State did not present any evidence that
   convictions.                                         constituted exigent circumstances.

   30. EPPD did not acquire a warrant to draw
   blood from the Defendant.
                                                        5. Texas Transportation Code, section
   31. On September 5, 2009, Detective Jordan           724.012(b)(3)(B) allows for a warrantless
   could have acquired a warrant for a blood            blood draw on an individual with two or
   draw, if she wanted to get one on that date.         more previous DWI convictions.

  32. On September 5, 2009, nothing                     6. Pursuant to McNeely, this governmental
  prevented Detective Jordan from acquiring a           interest does not justify a departure from
  warrant for a blood draw.                             obtaining a warrant, unless there are exigent
                                                        circumstances present.
  33. There is a magistrate on duty every
  night from 9:00 p.m. to 6:00 a.m. at the          2      In 2013, at the time of the hearing, Officer Jordan had
  Municipal Court building which was closer                been promoted to Detective.
  to the location where Defendant was arrested
  than the Police station where Defendant was
  transported.


                                                                          Works.
State v. Munoz, --- S.W.3d ---- (2015)



                                                                      Section 724.012(b), so therefore, the blood
                                                                      test result are not subject to the Fourth
                     DISCUSSION
                                                                      Amendment's exclusionary rule. The State
                                                                      further argues Munoz's 2009 blood test result
The State in a single point of error raises
                                                                      was not obtained in violation of the law,
two sub-issues. First, the State contends that
                                                                      because the blood draw occurred prior to the
the trial court erred by relying on Missouri
                                                                      issuance of McNeely in April 2013. The State
v. McNeely in suppressing the warrantless
                                                                      asserts that in 2009, the officers acted in
blood test result obtained pursuant to the
                                                                      "objective reasonable reliance" under existing
implied-consent and mandatory-blood-draw
                                                                      precedent and Munoz's warrantless blood draw
provisions in the Texas Transportation Code §
                                                                      was proper and therefore, not subject to
724.012(b). 3 SeeTEX.TRANSP.CODE ANN.
                                                                      exclusion under the Fourth Amendment.
§ 724.012(b)(West 2011). According to the
State, McNeely decided the narrow issue of
                                                                      Munoz responds that under McNeely, a
whether the dissipation of alcohol constituted a
                                                                      warrantless blood draw is reasonable only
per se exigency that allowed for a warrantless
                                                                      if it falls within a recognized exception to
blood draw in DWI cases. Therefore, the State
                                                                      the Fourth Amendment's warrant requirement.
concludes McNeely is inapplicable here given
                                                                      Munoz contends, under these facts, the State
that the State relied on the Texas Transportation
                                                                      has failed to secure a warrant or prove any
Code for implied consent of a warrantless
                                                                      permissible constitutional exception applies.
blood-draw in DWI cases involving an accident
or prior convictions. TEX.TRANSP.CODE
ANN.§§ 724.011, 724.012(b).
                                                                               STANDARD OF REVIEW
3      TEX.TRANSP.CODE ANN.§ 724.012(b) provides:
          (b) a peace officer shall require the taking of a           When reviewing a motion to suppress,
          specimen of the person's breath or blood under any          we apply a bifurcated standard of review.
          of the following circumstances if the officer arrests
                                                                      SeeCrain v. State, 315 S.W.3d 43, 48
          the person for an offense under Chapter 49, Penal
          Code, involving the operation of a motor vehicle ...        (Tex.Crim.App.2010); State v. Terrazas, 406
          and the person refuses the officer's request to submit      S.W.3d 689, 692 (Tex.App.-El Paso 2013,
          to the taking of a specimen voluntarily:
                                                                      no pet.). We afford almost total deference
            (3) at the time of the arrest, the officer possesses or   to the trial court's findings of historical
            receives reliable information from a credible source      fact that are supported by the record, and
            that the person:
                                                                      to mixed questions of law and fact that
            (B) on two or more occasions, has been previously         tum on an assessment of a witnesses'
            convicted of or placed on community supervision           credibility or demeanor. Valtierra v. State,
            for an offense under Section 49.04 [misdemeanor           310 S.W.3d 442, 447 (Tex.Crim.App.2010);
            DWI] ....
                                                                      Amador v. State, 221 S.W.3d 666, 673
 *3 Second, even if McNeely applies, the State                        (Tex.Crim.App.2007); Guzman v. State, 955
posits, the officers acted in objective reasonable                    S.W.2d 85, 89 (Tex.Crim.App.1997). The trial
reliance upon then-binding precedent and                              court's determination of legal questions and its
State v. Munoz, --- S.W.3d ---- (2015)



application of the law to facts that do not tum      In Schmerber v. California, 384 U.S. 757,
upon a determination of witness credibility and      86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), the
demeanor are reviewed de nova. See Valtierra,        United States Supreme Court held that an
310 S.W.3d at 447; Amador, 221 S.W.3d at             involuntary blood draw is permissible under
673; Kothe v. State, 152 S.W.3d 54, 62-63            a Fourth Amendment analysis. Initially, the
(Tex.Crim.App.2004); Guzman, 955 S.W.2d at           Court noted that the taking of a blood specimen
89.                                                  from a person is a search and seizure under
                                                     the Fourth Amendment. Id. at 767, 86 S.Ct. at
 [1] When, as here, the trial judge makes            1834. The Court outlined "special facts" under
express findings of fact, we must first              which an involuntary blood draw is reasonable.
determine whether the evidence, when viewed          Id. at 770-771, 86 S.Ct. at 1835-36. The
in the light most favorable to the trial court's     Court's analysis concluded that, in light of the
ruling, supports those findings. Valtierra,          potential for the destruction of alcohol evidence
310 S.W.3d at 447; State v. Kelly, 204               in a person's body, and involuntary blood
S.W.3d 808, 818 (Tex.Crim.App.2006). We              draw is permitted under the Fourth Amendment
review a trial court's legal ruling de nova.         where there is a delay by law enforcement in
State v. Iduarte, 268 S.W.3d 544, 548-49             investigating an accident; and there is no time
(Tex.Crim.App.2008). Furthermore, we must            to apply for a warrant and locate a magistrate.
uphold the trial court's ruling if it is supported   Id.
by the record and correct under any theory of
law applicable to the case. State v. White, 306       *4 In Missouri v. McNeely, the Court
S.W.3d 753, 757 n. 10 (Tex.Crim.App.2010).           expounded further, explicitly stating that a
"This principal holds true even when the             warrantless blood draw must fall under one
trial judge gives the wrong reason for his           of the recognized exceptions to the Fourth
decision, and is especially true with regard to      Amendment. 133 S.Ct. at 1558. The Court
admission of evidence." State v. Esparza, 353        held that the dissipation of alcohol from the
S.W.3d 276, 282 (Tex.App.-El Paso 2011, pet.         body per se is insufficient to create an exigent
granted), ajj'dState v. Esparza, 413 S.W.3d 81       circumstance to justify a warrantless seizure
(Tex.Crim.App.2013), quotingRomero v. State,         of a defendant's blood. McNeely, 133 S.Ct. at
800 S.W.2d 539, 543 (Tex.Crim.App.1990).             1560-61. The Court instructed us that whether
"The evident purpose of this rule is to ensure       the exigent circumstances exception is satisfied
that a trial court ruling will be upheld if the      must be viewed case by case in light of the
appellate court has assurance that the ruling        totality of the circumstances. Id.
was just and lawful." Esparza, 353 S.W.3d at
282, quotingWhite, 306 S.W.3d at 757 n. 10.          The Texas Court of Criminal Appeals finally
                                                     addressed the tension between our statutory
                                                     implied consent, Texas Transportation Code
                                                     section 724.012(b)(3)(B) and McNeely in State
               SUPPRESSION OF
             BLOOD TEST RESULT                       v. Villarreal. 4 State v. Villarreal, No. PD-
                                                     0306-14, -        S.W.3d - - , - - , 2014 WL
State v. Munoz, --- S.W.3d ---- (2015)



6734178, at *1 (Tex.Crim.App. Nov. 26,                             consent or a warrant. Id. Villarreal argued
2014)(reh'g granted). In Villarreal, the facts are                 McNeely applied and thus the blood draw was
almost identical to the case at hand.                              unconstitutional. Id. The State contended that
                                                                   McNeely did not apply to mandatory blood
4      We note the Texas Court of Criminal Appeals has             draws because of our implied consent statutes.
       granted the State's motion for rehearing in this case       Id.
       on February 25, 2015, but has not withdrawn its
       opinion on original submission. While Villarreal's future
       precedential value is not certain, we believe the opinion   The Court, after extensive analysis, held
       is persuasive and absent any other guidance from the        "that a nonconsensual search of a DWI
       Texas Court of Criminal Appeals, we will continue to
                                                                   suspect's blood conducted pursuant to the
       apply its reasoning. See Perez v. State, No. 01- l 2-
       0 I OO l--CR, - S.W .2d - , - , 2015 WL 1245469,            mandatory-blood-draw and implied-consent
       at *6 (Tex.App.-Houston [!st Dist.] Mar. 17, 2015, pet.     provisions in the Transportation Code, when
       filed) (applying the Villarreal holding after the Texas
                                                                   undertaken in the absence of a warrant
       Court of Criminal Appeals granted rehearing).
                                                                   or any applicable exception to the warrant
In 2012, Villarreal was stopped for a traffic                      requirement, violates the Fourth Amendment."
violation and observed to be swaying back                          Id., at - - , 2014 WL 6734178, at *21. Our
and forth, had red, watery eyes, and slurred                       sister courts in applying Villarreal have joined
speech, in addition to a strong odor of alcohol.                   the Texas Court of Criminal Appeals in soundly
Id. Villarreal was placed under arrest for                         rejecting the State's argument that McNeely
DWI. Id. After the discovery of Villarreal's                       has limited applicability when construed in
several previous convictions of DWI, the                           conjunction with the Texas Transportation
officer took Villarreal to a hospital for a blood                  Code§ 724.012(b)(3)(B). SeeState v. Tercero,
draw. Id., at - - , 2014 WL 6734178, at                            -S.W.3d-, No. 01-14-00120-CR, 2015
*2. Villarreal's blood test result indicated "a                    WL 1544519 (Tex.App.-Houston [1st Dist]
blood-alcohol concentration of. 16 grams of                        April 2, 2015, pet. filed); Chidyausiku v.
alcohol per hundred milliliters of blood." Id.                     State, 457 S.W.3d 627 (Tex.App.-Fort Worth
Due to Villarreal's prior convictions, he was                      2015, pet. filed); State v. Garcia, 457 S.W.3d
subsequently indicted for a felony DWI. Id.                        546 (Tex.App.-San Antonio 2015, pet. filed);
                                                                   Lloyd v. State, 453 S.W.3d 544 (Tex.App.-
At the evidentiary hearing on Villarreal's                         Dallas 2014, pet. ref d); Cole v. State, 454
motion to suppress, the State's sole witness                       S.W.3d 89 (Tex.App.-Texarkana 2014, pet.
testified he "could have" obtained a warrant                       granted); Clement v. State, 461 S.W.3d 274
but did not and relied on "the mandatory-                          (Tex.App.-Eastland 2015, pet. filed); State v.
blooddraw provision in the Code."Id.; TEX.                         Martinez, No. 13-14-00117-CR, 2015 WL
TRANSP. CODE ANN. § 724.012(b). Further,                           1957087 (Tex.App.-Corpus Christi April 30,
the officer stated his decision to conduct the                     2015, no pet. h.)(mem. op., not designated
blood draw was based only on the statutory                         for publication); Evans v. State, No. 14-
authority and not on any emergency or exigent                      13-00642-CR, 2015 WL 545702 (Tex.App.-
circumstances. Villarreal, -   S.W.3d at--,                        Houston [14th Dist.] Feb. 10, 2015, pet. filed)
2014 WL 6734178, at *2. The parties stipulated                     (mem. op., not designated for publication).
Villarreal's blood draw was taken without his
State v. Munoz, --- S.W.3d ---- (2015)



                                                     (West 2005). That statute provides evidence
 *5 [2] Likewise, our prev10us approach              may not be used or admitted in the criminal trial
has followed Villarreal. SeeBurcie v. State,         against the defendant if the evidence is obtained
No. 08-13-00212-CR, 2015 WL 2342876                  by "an officer or other person in violation of
(Tex.App.-El Paso May 14, 2015, pet.                 any provisions of the Constitution or laws of the
filed)(not designated for publication). In           State of Texas, or of the Constitution or laws of
Burcie, like the case before us, the facts           the United States of America[.]" TEX.CODE
were not in dispute and the State had failed         CRIM. PROC. ANN. art. 38.23(a). Moreover,
to raise any recognizable exception to the           the State contends, in 2009, at the time of
Fourth Amendment. The record here shows              Munoz's blood draw, the officers acted in
the officer relied on the implied consent under      objective reasonable reliance of the existing
the Texas Transportation Code and could have         law.
obtained a warrant but chose not to. Like
Villarreal and Burcie, the State relies on the       First, the State argues that Munoz's blood test
implied consent and mandatory-blood-draw             was not obtained in contravention of then
provisions of the Texas Transportation Code          existing federal precedent and therefore, even
to support the admission of the blood test           if McNeely applies, the blood test should
result. The trial court concluded as a matter of     not be excluded. The State cites Davis v.
law the State failed to present "any evidence        United States, for the proposition that the
that constituted exigent circumstances." The         "exclusionary rule is limited to situations in
record supports that conclusion. Given that          which deterrence is 'thought most efficaciously
the Texas Transportation Code's mandatory-           served.' " Davis v. United States, -          U.S.
blood-draw is not a valid exception to the           - , 131 S.Ct. 2419, 2426, 180 L.Ed.2d
Fourth Amendment, the trial court did not err        285 (2011), citingU.S. v. Calandra, 414 U.S.
in suppressing the blood test result.                338, 348, 94 S.Ct. 613, 620, 38 L.Ed.2d
                                                     561 (1974). As the State correctly points out,
We find under Missouri v. McNeely and                Davis made clear a constitutional violation
State v. Villarreal the State's first sub-issue is   does not always mandate the applicability of
overruled.                                           exclusionary rule. The Davis court explained
                                                     the exclusionary rule never applies to the
                                                     suppression of evidence when it was obtained
                                                     "as a result of nonculpable, innocent police
          GOOD-FAITH RELIANCE
                                                     conduct." 131 S.Ct. at 2429. The State also
The State, in their second sub-issue, urges us       pointed to the holdings in Krull, Leon, and
to find the trial court erred because in 2009 the    Peltier to illustrate that the United States
blood draw was not obtained in violation of          Supreme Court has prohibited the application
federal Fourth Amendment exclusionary rule           of the Fourth Amendment's exclusionary rule
nor Texas' exclusionary rule found in Article        when an officer has in good-faith, objectively
38.23 of the Texas Code of Criminal Procedure.       and reasonably relied on a then constitutional
TEX.CODE CRIM.PROC.ANN. art. 38.23                   statute or valid search warrant. Illinois v. Krull,
State v. Munoz, --- S.W.3d ---- (2015)



480 U.S. 340, 347, 350, 107 S.Ct. 1160, 1165-       that the exclusionary rule does not apply in
66, 94 L.Ed.2d 364 (1987); United States v.         this case." Elias, 2012 WL 4392245, at *7.
Leon, 468 U.S. 897, 922, 104 S.Ct. 3405, 3420,      SeeArizona v. Gant, 556 U.S. 332, 129 S.Ct.
82 L.Ed.2d 677 (1984); United States v. Peltier,    1710, 173 L.Ed.2d 485 (2009). Thus, Swink
422 U.S. 531, 537, 95 S.Ct. 2313, 2317-18, 45       refused to apply Mincey retroactively. Swink,
L.Ed.2d 374 (1975).                                 617 S.W.2d at 210. Likewise, Elias did not
                                                    apply Gant retroactively, relying on the federal
Relying on Swink v. State and Elias v.              doctrine of the officers' good faith reliance
State, the State contends that McNeely              under Davis. Elias, 2012 WL 4392245, at
should not be applied retroactively. Swink          *7. Neither case alludes to or discusses the
v. State, 617 S.W.2d 203, 209-210                   Texas exclusionary rule under Article 38.23
(Tex.Crim.App.l98l)(overruled on other              and its application to an officer's good faith
grounds byGriffin v. State, 765 S.W.2d 422          reliance on then-constitutional statutes and
(Tex.Crim.App.1989)); State v. Elias, No.           former binding precedent. TEX.CODE CRIM.
08-08-00085-CR, 2012 WL 4392245, at *7              PROC. ANN.ODE CRIM. PROC. ANN. art.
(Tex.App.-El Paso Sept. 26, 2012, pet. refd)        38.23. We note that Swink and Elias are
(not designated for publication). In Swink, the     specifically limited to the application of Mincey
Texas Court of Criminal Appeals held "that the      and Gant. Our research has failed to uncover
warrantless search and seizure of the premises      any Texas case, under these facts, declining to
by the officers was permissible at the time of      retroactively apply McNeely and the State has
their actions and that the holding of Mincey        not cited to any.
will not be applied retroactively to this case."
Swink, 617 S. W.2d at 210. The Court explained       [3] The United States Supreme Court in
the "search was conducted some six months           Griffith explained that "failure to apply a
before the decision in Mincey while the trial       newly declared constitutional rule to criminal
was held six months after the decision .... Thus,   cases pending on direct review violates basic
at the time officers conducted the warrantless      norms of constitutional adjudication." Gr(ffith
search of the murder scene, their actions did not   v. Kentucky, 479 U.S. 314, 322, 107 S.Ct. 708,
run afoul of the holding in Mincey." Id. at 209.    713, 93 L.Ed.2d 649 (1987). The Griffith Court
SeeMincey v. Arizona, 437 U.S. 385, 98 S.Ct.        held that a newly announced constitutional
2408, 57 L.Ed.2d 290 ( 1978).                       rule for conducting criminal prosecutions must
                                                    be applied retroactively to all cases, state or
 *6 In Elias, relying on Davis v. United            federal, pending on direct review or not yet
States, -   U.S. - - , 131 S.Ct. 2419, 180          final when the rule was announced regardless
L.Ed.2d 285 (2011 ), we held that "the search       whether they constitute a clear break from
of Elias's van was unconstitutional under           the past. Griffith, 479 U.S. at 328, 107 S.Ct.
Gant, [however] the police conducted the            at 716. SeeMcClintock v. State, 444 S.W.3d
search in 2007 in good faith reliance on            15 (Tex.Crim.App.2014). The Supreme Court's
appellate precedent authorizing the search          retroactivity analysis for federal constitutional
incident to arrest. Accordingly, we conclude        errors is binding upon the states when federal
constitutional errors are involved. James B.          which only applies when a warrant issued by
Beam Distilling Co. v. Georgia, 501 U.S. 529,         a neutral magistrate, based on probable cause,
535, 111 S.Ct. 2439, 2443, 115 L.Ed.2d 481            and is relied upon by the officer in good-
(1991 ). This case was not yet final when             faith. TEX.CODE CRIM. PROC. ANN. art.
McNeely was decided in April 2013 and it              38.23(b). As a result of the lack of a warrant
applies here on direct appeal.                        being issued, the statutory exception in Article
                                                      38.23(b) does not apply here. Douds, 434
The court in Douds v. State, held the good-           S.W.3d at 861; Anderson, 445 S.W.3d at 912;
faith reliance exception does not apply in            Tercero, - S.W.3d at - - - - - , 2015 WL
Texas. Douds v. State, 434 S.W.3d 842,                1544519, at *6-7; Burks v. State, 454 S.W.3d
861 (Tex.App.-Houston [14th Dist.] 2014,              705, 709 (Tex.App.-Fort Worth 2015, pet.
pet. granted)(en bane). The Texas Supreme             filed); Martinez v. State, No. 04-13-00764-
Court has resisted efforts to expand the              CR, 2014 WL 5837162, at *2 (Tex.App.-
good-faith exception using federal precedent,         San Antonio Nov. 12, 2014, pet. filed)(mem.
especially in those instances when the                op., not designated for publication); Weems
federal exceptions conflict with our statutory        v. State, 434 S.W.3d 655, 666 (Tex.App.-
exclusionary rule. Howard v. State, 617 S.W.2d        San Antonio 2014, pet. granted); State v.
191, 193 (Tex.Crim.App.1979)(op. on reh'g)            Stewart, No. 09-13-00421-CR, 2014 WL
(rejecting the federal good-faith doctrine of         5855905, at *4 (Tex.App.-Beaumont Nov. 12,
Michigan v. DeFillippo, 443 U.S. 31, 99               2014, pet. ref d)(mem. op., not designated for
S.Ct. 2627, 61 L.Ed.2d 343 (1979)); also              publication).
seeState v. Daugherty, 931 S.W.2d 268
(Tex.Crim.App.1996). Other Texas Courts of            *7 We overrule the State's second sub-issue.
Appeals have come to that same conclusion
                                                  '
specifically when evaluating the admissibility
of blood test results under McNeely. Doud~,                           CONCLUSION
434 S.W.3d at 862; see alsoState v. Anderson,
445 S.W.3d 895, 912 (Tex.App.-Beaumont                We conclude the trial court did not abuse her
2014, no pet.); Tercero, -       S.W.3d at--,         discretion in determining there were no exigent
2015 WL 1544519, at *6. We decline the                circumstances that justified a warrantless blood
State's invitation to create a good-faith reliance    draw from Munoz. We affirm the trial court's
exception to the application of McNeely.              order granting the motion to suppress.

[4] Lastly    we consider whether Texas's
exclusionary rule as codified in the Code
                                                      Rivera, J., Not Participating
of Criminal Procedure article 38.23 allows
for the admission of the blood test result.           All Citations
The exception to Texas's exclusionary rule
is legislative and found in Article 38.23(b)          --- S.W.3d----, 2015 WL 4719559



                                                                                                   10
State v. Munoz, --- S.W.3d ---- (2015)
2015wC4119559 - - - - - - - - - - ----------- ------~-----·----~--~·-----·-----·-



End of Document                          @2015 Thomson Reuters. No claim to original U.S. Government Works.




                                                                                                         11
APPENDIXB




    10
SHARO'll Kt:l.l.ER                                                                                               ABEL ACOSTA
  PKl·S\Dlt-;(i   JLIXi~              COURT OF CRIMINAL APPEALS                                                      CLERK
                                                                                                                  (512)46.'-15:'1
                                             P.O. BOX 12308, CAPITOL STATION
LAWREl\CI!: E. MF.YF.RS
CtlERYLJOllNSOI'
                                                   AUSTIN, TEXAS 78711                                          SIAN SCHILHAB
                                                                                                                <iFNF.RAL COUNSEL
MIKE KEASLl:R                                                                                                     1~1:?)46)·1597
BARBARA P. llERVEY
ELSA ALCALA
BF.RT RICHAIWSON
KE\'IN P. V EARY
DAVIJJ 'llE\VELL
 JL'DGlS



                                               Wednesday. February 25, 2015

    Jacqueline Rae                                                    District Attorney Nueces County
    Assistant District Attorney                                       Mark Skurka
    901 Leopard, Room 206                                             90 I Leopard Room 206
    Corpus Christi, TX 78401                                          Corpus Christi, TX 7840 I
    * DELIVERED VIA E-MAIL *                                          * DELIVERED VIA E-MAIL *

   Fred Jimenez                                                       Douglas K. Nonnan
   ATTORNEY AT LAW                                                    Assistant District Attorney
   509 Lawrence St., Suite 30 I                                       901 Leopard, Room 206
   Corpus Christi. TX 7840 I                                          Corpus Christi, TX 78401
   *DELIVERED VIA E-MAIL*                                             *DELIVERED VIA E-MAIL*

   Re: STATE OF TEXAS VS. DAVID VILLARREAL
   CCA No. PD-0306-14
   Trial Court Case No. 12-CR-l 000-H

    Dear Counselors:

    The Court has this day granted the State's motion for rehearing.

    The case will be submitted to the Court on Wednesday, March 18, 2015.



                                                                                    Sinmely,                    ~


                                                                                   A~Ierk_,-......==----=----
                           SLPR~ME   COURT BUll.1)11\Ci. 201 \VfSI 14HI STRHT. ROOM 106. Al;STIN. TFXAS 78701
                                                 WrnSITI· WWW.TXl"lllJRTS.CiOVICCA.ASPX
         FILED IN                                                                                  PD-0306-14
COURT OF CRIMINAL APPEALS                                                         COURT OF CRIMINAL APPEALS
                                                                                                   AUSTIN, TEXAS
     December)(°2014                                                           Transmitted 12/17/2014 2:52:50 PM
              'Cl\                                                               Accepted 12/18/2014 8:54:31 AM
   ABELACOSTA,CLERK                                                                                 ABEL ACOSTA
                                           NO. PD-0306-14                                                CLERK
                               (Appellate Court Cause No. 13-13-253-CR)

            THE STATE OF TEXAS,                   §    IN THE
                     Petitioner,                  §
                                                  §
            v.                                    §    COURT OF CRIMINAL APPEALS
                                                  §
            DAVID VILLARREAL,                     §
                     Respondent.                  §    OF TEXAS

                     PETITIONER'S AMENDED MOTION FOR REHEARING

            TO THE HONORABLE COURT OF CRIMINAL APPEALS:

                     Comes now the State of Texas, by and through the District Attorney

            for the I 05th Judicial District of Texas, and submits this amended motion for

            rehearing, pursuant to Tex. R. App. P. 79. l & 79.3, and requests that the

            Court reconsider its November 26, 2014, opinion in this case, grant this

            motion, and resubmit this case.

                     For the reasons set forth in the State's briefs, as well as those set forth

            in the      dissenting   opinions,   the   State believes    that rehearing and

            reconsideration are appropriate in the present case.

                                                 I. WAIVER.

                     Specifically, the State contends that the majority opinion too quickly

            dismissed the State's argument that Texas drivers have validly waived their

            right to object to a warrantless blood draw under the limited circumstances

            set out in the implied consent I mandatory draw statute.
      This Court's majority opinion stated, "we are aware of no Supreme

Court cases approving of [the waiver] doctrine's applicability in a context

similar to the one with which we are confronted today," distinguishing the

present case from Supreme Court waiver cases based on federal regulations.

(Slip. Op. at 25) Yet, the majority opinion made no persuasive argument

why waiver in the context of state regulation of a highly regulated activity

like driving should be treated differently from the federally regulated

activities in Zap and Biswell.

      In Zap, the Supreme Court relied upon both federal statutory authority

and a government contract with the defendant to establish a waiver of that

defendant's right to insist on a warrant before his records could be inspected

by government officials with whom he chose to do business as a Navy

contractor. See Zap v. United States, 328 U.S. 624, 626-27, 66 S. Ct. 1277

(1946), vacated on other grounds, 330 U.S. 800 (1947).

      In Biswell, the Supreme Court relied upon statutory authority for the

warrantless inspection of a gun dealer's records, firearms and ammunition.

See United States v. Biswell, 406 U.S. 311, 316, 92 S. Ct. 1593 ( 1972).

      In the present case, the mere fact that the state, and not the federal

government, regulates driving offers no principled reason for disallowing

waiver. Nor should it matter that driving is engaged in for both personal and


                                      2
business reasons.    Moreover, a Texas driver is clearly on notice of the

waiver in question. In addition to the statute and presumed knowledge of

the law, the Texas Driver's Handbook clearly puts present and prospective

drivers on notice of the implied consent law. See Texas Driver's Handbook,

p. 60 (rev. July 2012).

      Finally, this Court should not reject the waiver exception simply

because it has never before been applied to the particular circumstances in

the present case.    Waiver remains a "well recognized exception" to the

warrant requirement, even though waiver of the specific right of an impaired

driver to object to a warrantless blood draw may not be a "well recognized

application" of that exception.

                            II. SPECIAL NEEDS.

      Alternatively, with regard to "special needs," the majority opinion too

quickly dismissed that exception on the ground that the primary purpose of

such a blood draw was supposedly to collect evidence for a criminal trial. In

doing so, the Court neglected the equally valid and compelling purpose of

revoking the driving privilege of those who have shown themselves to be too

irresponsible to continue to hold that privilege.

      Under the mandatory draw provisions of the Texas Transportation

Code, in addition to providing evidence for a criminal prosecution, the results


                                       3
of the blood draw may be used in the administrative removal of drunken

drivers from the public roadways. The Department of Public Safety must

suspend the person's license if analysis of the blood reveals an alcohol

concentration of 0.08 or greater. TEX. TRANSP. CoDE § 524.012(b)(l); TEX.

PENAL CODE § 49.01(2)(B). The suspension is for a period of 90 days or

one year, depending on whether the person has had any prior DWI arrests in

the ten years preceding the current date of arrest. TEX. TRANSP. CODE §

524.022(a).

      This Court has noted that the "primary purpose of the administrative

license suspension statute is not to deter the licensee or to seek retribution,

but is to protect the public from the carnage on the public roads of

Texas caused by drunk drivers." Ex parte Tharpe, 935 S.W.2d 157, 159

(Tex. Crim. App. 1996); see also Tex. Dept. Pub. Safety v. Richardson, 384

S.W.2d 128, 132 (1964) ("But, it should be made abundantly clear that in

this case [of driver's license revocation] we are not concerned with criminal

penalties but rather with an administrative and regulative power vested in

the Texas Department of Public Safety which power has for its purpose

the protection of the lives and property of those using the highways.").

      Accordingly, the mandatory draw statute may be justified under

the special needs exception, as applied to the closely regulated


                                       4
activity of driving on public roads, and as a tool not only of criminal

enforcement but also for administrative measures designed to protect

the public from drunk drivers by removing their driving privileges.

   III. GENERAL FOURTH AMENDMENT REASONABLENESS.

      In addition, both Presiding Judge Keller's Dissenting Opinion, and

Judge Meyers' Dissenting Opinion appear to rely on a generalized

reasonableness approach that looks to the totality of the circumstances, the

needs of the public and law enforcement, and the lowered expectation of

privacy that repeat offenders have in the minor inconvenience of a

compelled blood draw.      The State suggests that these considerations are

entitled to more weight than was given to them in the majority opinion.

                          IV. MISTAKE OF LAW.

       Finally, the State believes that the very recent opinion by the United

States Supreme Court in Heien v. North Carolina, --- U.S. ---, No. 13-604

(December 15, 2014), should be considered by this Court on rehearing.

       In Heien, the Supreme Court, arguably for the first time, recognized that

an officer's reasonable mistake of law, like a reasonable mistake of fact, may

render legal conduct that would otherwise amount to a Fourth Amendment

violation.   Specifically, in Heien, the Court held that it was "objectively

reasonable for an officer in Sergeant Darisse's position to think that Heien's


                                       5
faulty right brake light was a violation of North Carolina law. And because

the mistake of law was reasonable, there was reasonable suspicion justifying

the stop." Slip op. at 13.

      On a broader level, the Supreme Court reasoned that, "[t]o be

reasonable is not to be perfect, and so the Fourth Amendment allows for

some mistakes on the part of government officials, giving them 'fair leeway

for enforcing the law in the community's protection."' Slip op. at 5 (quoting

Brinegarv. United States, 338 U.S. 160, 176 (1949)).

      In the present case, Officer Williams clearly relied on what he

reasonably believed to be a valid statutory mandate for him to require the

blood draw in question. To that extent that he reasonably relied upon the

implied consent I mandatory draw statute, he, like Sergeant Darisse, did not

violate the Fourth Amendment by conduct that would later be shown to be a

mistake of law.

      Since this Court did not have the benefit of the Heien opinion at the

time it handed down its November 26 1h opinion, the State believes that

rehearing and reconsideration would be especially appropriate.




                                      6
                                   PRAYER

      For the foregoing reasons, the State requests that the Court reconsider

its November 26, 2014, opinion in this case; grant this motion for rehearing;

resubmit this case in order to address the State's contentions as set out in this

motion; and, after doing so, reverse the judgment of the Thirteenth Court of

Appeals and vacate the trial court's suppression order.

                                 Respectfully submitted,
                                 1s1V~~.~
                                 Douglas K. Norman
                                 State Bar No. 15078900

                                 1s1~L~
                                  Jacqueline Lamerson
                                  State Bar No. 24074923
                                  Assistant District Attorneys
                                  105th Judicial District of Texas
                                  901 Leopard, Room 206
                                  Corpus Christi, Texas 78401
                                  (361) 888-0410
                                  (361) 888-0399 (fax)




                                        7
...




                             RULE 9.4 (i) CERTIFICATION
            In compliance with Texas Rule of Appellate Procedure 9.4(i)(3), I

      certify that the number of words in this motion, excluding those matters

      listed in Rule 9.4(i)(1), is 1,271.

                                            /sl1J~~.~

                                            Douglas K. Norman


                              CERTIFICATE OF SERVICE
            This is to certify that, pursuant to Tex. R. App. P. 6.3 (a), copies of

      this motion were e-mailed on December 17, 2014, to Respondent's attorney,

      Mr. Fred Jimenez, and to the State Prosecuting Attorney.

                                            /sl1J~~.~

                                            Douglas K. Norman




                                            g
         FILED IN
                                                                                                 PD-0306-14
COURT OF CRIMINAL APPEALS                                                       COURT OF CRIMINAL APPEALS
                                                                                                 AUSTIN. TEXAS
     December 10. 2014                                                       Transmitted 12/10/2014 92507 AM
                                                                               Accepted 12110/2014 9:35:22 AM
   ABELACOSTA. CLERK                                                                              ABEL ACOSTA
                                         NO. PD-0306-14                                                  CLERK
                            (Appellate Court Cause No. 13-13-253-CR)

         THE STATE OF TEXAS,                   §    IN THE
                  Petitioner,                  §
                                               §
         V.                                    §    COURT OF CRIMINAL APPEALS
                                               §
         DA YID VILLARREAL,                    §
                   Respondent.                 §    OF TEXAS

                         PETITIONER'S MOTION FOR REHEARING

         TO THE HONORABLE COURT OF APPEALS:

                 Comes now the State of Texas, by and through the District Attorney

         for the l 05th Judicial District of Texas, and submits this motion for

         rehearing, pursuant to Tex. R. App. P. 79.1, and requests that the Court

         reconsider its November 26, 2014, opinion in this case, grant this motion,

         and resubmit this case.

                  For the reasons set forth in the State's briefs, as well as those set forth

          m the dissenting opinions,          the   State believes    that    rehearing and

          reconsideration are appropriate in the present case.

                                             I. WAIVER.

                  Specifically, the State contends that the majority opinion too quickly

          dismissed the State's argument that Texas drivers have validly waived their

          right to object to a warrantless blood draw under the limited circumstances

          set out in the implied consent I mandatory draw statute.
      This Court's majority opinion stated. ·'we are aware of no Supreme

Court cases approving of [the waiver] doctrine's applicability in a context

similar to the one with which we are confronted today,'' distinguishing the

present case from Supreme Court waiver cases based on federal regulations.

(Slip. Op. at 25) Yet, the majority opinion made no persuasive argument

why waiver in the context of state regulation of a highly regulated activity

like driving should be treated differently from the federally regulated

activities in Zap and Biswell.

      In Zap, the Supreme Court relied upon both federal statutory authority

and a government contract with the defendant to establish a waiver of that

defendant's right to insist on a warrant before his records could be inspected

by government officials with whom he chose to do business as a Navy

contractor. See Zap v. United States, 328 U.S. 624, 626-27, 66 S. Ct. 1277

(1946), vacated on other grounds, 330 U.S. 800 (1947).

      In Biswell, the Supreme Court relied upon statutory authority for the

warrantless inspection of a gun dealer's records, firearms and ammunition.

See United States v. Biswell, 406 U.S. 31 l, 316, 92 S. Ct. 1593 ( 1972).

      In the present case, the mere fact that the state, and not the federal

government, regulates driving offers no principled reason for disallowing

waiver. Nor should it matter that driving is engaged in for both personal and


                                       2
business reasons.    Moreover, a Texas driver is clearly on notice of the

waiver in question. In addition to the statute and presumed knowledge of

the law, the Texas Driver's Handbook clearly puts present and prospective

drivers on notice of the implied consent law. See Texas Driver's Handbook.

p. 60 (rev. July 2012).

       Finally, this Court should not reject the waiver exception simply

because it has never before been applied to the particular circumstances in

the present case.    Waiver remains a "well recognized exception" to the

warrant requirement, even though waiver of the specific right of an impaired

driver to object to a warrantless blood draw may not be a "well recognized

application" of that exception.

                            II. SPECIAL NEEDS.

      Alternatively, with regard to "special needs.'' the majority opinion too

quickly dismissed that exception on the ground that the primary purpose of

such a blood draw was supposedly to collect evidence for a criminal trial. In

doing so, the Court neglected the equally valid and compelling purpose of

revoking the driving privilege of those who have shown themselves to be too

irresponsible to continue to hold that privilege.

      Under the mandatory draw provisions of the Texas Transportation

Code, in addition to providing evidence for a criminal prosecution, the results


                                       3
of the blood draw may be used in the administrative removal of drunken

drivers from the public roadways.     The Department of Public Safety must

suspend the person's license if analysis of the blood reveals an alcohol

concentration of 0.08 or greater. Tex. TRANSP. Cooc § 524.0 l 2(b )( 1); Ti::x.

PENAL Com-: § 49.01(2)(8). The suspension is for a period of 90 days or

one year, depending on whether the person has had any prior DWI arrests in

the ten years preceding the current date of arrest. TEX. TRANSP. Com~ §

524.022(a).

      This Court has noted that the "primary purpose of the administrative

license suspension statute is not to deter the licensee or to seek retribution,

but is to protect the public from the carnage on the public roads of

Texas caused by drunk drivers." Ex parte Tharpe, 935 S.W.2d 157, 159

(Tex. Crim. App. 1996); see also Tex. Dept. Pub. Safety v. Richardson, 384

S. W.2d 128, 132 (1964) ("But, it should be made abundantly clear that in

this case [of driver's license revocation] we are not concerned with criminal

penalties but rather with an administrative and regulative power vested in

the Texas Department of Public Safety which power has for its purpose

the protection of the lives and property of those using the highways.").

      Accordingly, the mandatory draw statute may be justified under

the special needs exception, as applied to the closely regulated


                                       4
activity of driving on public roads, and as a tool not only of criminal

enforcement but also for administrative measures designed to protect

the public from drunk drivers by removing their driving privileges.

   III. GENERAL FOURTH AMENDMENT REASONABLENESS.

        Finally, both Presiding Judge Keller's Dissenting Opinion, and Judge

Meyers' Dissenting Opinion appear to rely on a generalized reasonableness

approach that looks to the totality of the circumstances, the needs of the

public and law enforcement, and the lowered expectation of privacy that

repeat offenders have in the minor inconvenience of a compelled blood

draw.    The State suggests that these considerations are entitled to more

weight than was given to them in the majority opinion.




                                      5
                                   PRAYER

      For the foregoing reasons, the State requests that the Court reconsider

its November 26, 2014. opinion in this case; grant this motion for rehearing;

resubmit this case in order to address the State's contentions as set out in this

motion; and, after doing so, reverse the judgment of the Thirteenth Court of

Appeals and vacate the trial court's suppression order.

                                 Respectfully submitted,
                                 1s1V~~-~
                                 Douglas K. Norman
                                 State Bar No. 15078900

                                 Isl~                .<'ae
                                  Jacqueline Lamerson
                                  State Bar No. 24074923
                                  Assistant District Attorneys
                                  I 05th Judicial District of Texas
                                  901 Leopard, Room 206
                                  Corpus Christi, Texas 78401
                                  (361) 888-0410
                                  (361) 888-0399 (fax)




                                        6
                       RULE 9.4 (i) CERTIFICATION

       In compliance with Texas Rule of Appellate Procedure 9.4(i)(3), I

certity that the number of words in this motion, excluding those matters

listed in Rule 9.4(i)(l), is 972.

                                       lsl'D~~.~

                                       Douglas K. Norman


                        CERTIFICATE OF SERVICE
       This is to certify that, pursuant to Tex. R. App. P. 6.3 (a), copies of

this motion were e-mailed on December I 0, 2014, to Respondent's attorney,

Mr. Fred Jimenez, and to the State Prosecuting Attorney.

                                       /sl'D~~.~

                                       Douglas K. Norman




                                      7
