                        PD-1228-15

                           IN THE COURT
                   OF CRIMINAL APPEALS OF TEXAS

LAURA DENISE MOORE,             §
    APPELLANT                   §
                                §
V.                              §               PD-1228-15
                                §
THE STATE OF TEXAS ,            §
    APPELLEE                    §


                              § § §

          STATE'S PETITION FOR DISCRETIONARY REVIEW

                              § § §

                              SHAREN WILSON
                              Criminal District Attorney
                              Tarrant County, Texas

                              DEBRA WINDSOR, Assistant
                              Criminal District Attorney
                              Chief, Post-Conviction

                              TANYA S. DOHONEY
                              Assistant Criminal District Attorney
                              Tim Curry Criminal Justice Center
     October 21, 2015         401 W. Belknap
                              Fort Worth, Texas 76196-0201
                              (817) 884-1687 FAX (817) 884-1672
                              State Bar No. 02760900
                              ccaappellatealerts@tarrantcountytx.gov


                              LISA C. MCMINN,
                              State Prosecuting Attorney

                   ORAL ARGUMENT IS REQUESTED
              IDENTITY OF THE PARTIES AND COUNSEL

     The State of Texas, represented by the Hon. Sharen Wilson, Tarrant

County Criminal District Attorney, prosecutes this appeal.      Additionally,

representing the State on appeal is the Hon. Tanya S. Dohoney, Assistant

Criminal District Attorney and Hon. Debra Windsor, Assistant Criminal

District Attorney and Post-Conviction Chief. At trial, the Hon. Caroline Kim,

Assistant Criminal District Attorney, represented the prosecution.       The

State’s attorneys’ address is Office of the Criminal District Attorney of

Tarrant County, Tim Curry Criminal Justice Center, 401 W. Belknap, Fort

Worth, Texas 76196-0201.

     Appellant, Defendant below, is Laura Denise Moore.          Hon. Mimi

Coffey and Hon. Joan Cochrane, 4700 Airport Freeway, Fort Worth, Texas,

76102, and represented Appellee at trial. Hon. Richard A. Henderson, 100

Throckmorton Street, Suite 540, Fort Worth, Texas 76102, represents

Appellant on appeal.

     The Hon. Scott Wisch, judge of the 372nd Judicial District Court of

Tarrant County, Texas, presided over Appellant’s case. The Second Court

of Appeals transferred this cause to the docket of the Court of Appeals for

the Eleventh District of Texas.     On August 21, 2015, an unpublished

                                      ii
opinion reversing Appellant’s conviction issued. Moore v. State, No. 11-13-

00347-CR, (Tex. App.—Eastland Aug. 21, 2015). The panel deciding the

case consisted of Chief Justice Wright, Justice Willson, and Justice Bailey.




                                     iii
                                       SUBJECT INDEX


IDENTITY OF THE PARTIES AND COUNSEL ............................................ i

SUBJECT INDEX ...................................................................................... iv

INDEX OF AUTHORITIES ......................................................................... vi

STATEMENT REGARDING ORAL ARGUMENT ........................................ 9

STATEMENT OF THE CASE ................................................................... 10

STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE ........... 10

STATEMENT OF FACTS ......................................................................... 10

QUESTIONS PRESENTED FOR REVIEW............................................... 12

FIRST QUESTION FOR REVIEW ............................................................ 12

       Does a warrantless, nonconsensual blood draw conducted
       pursuant to TEX. TRANSP. CODE § 724.012(b) violate the Fourth
       Amendment?

SECOND QUESTION FOR REVIEW ....................................................... 12

       Are Fourth Amendment warrant-preference exceptions the sole
       measure of Fourth Amendment reasonableness in warrantless
       scenarios?

THIRD QUESTION FOR REVIEW ............................................................ 12

       Do exclusionary rule principles mandate suppression of blood
       evidence seized via a warrantless, nonconsensual, valid-at-the-
       time mandatory blood draw?

ARGUMENT AND AUTHORITIES ............................................................ 13
                                                  iv
CONCLUSION AND PRAYER .................................................................. 26

CERTIFICATE OF COMPLIANCE ............................................................ 27

CERTIFICATE OF SERVICE .................................................................... 27




                                              v
                                 INDEX OF AUTHORITIES




CASES

Breithaupt v. Abram,
      352 U.S. 432 (1957) ........................................................................ 22

Cole v. State,
     454 S.W.3d 89
     (Tex. App.—Texarkana 2014, pet. granted) ..................................... 15

Davis v. United States,
     ___ U.S. ___, 131 S. Ct. 2419 (2011) ........................................ 23–24

Garcia v. State,
     829 S.W.2d 796 (Tex. Crim. App. 1992) .......................................... 25

Holidy v. State,
      No. 06-13-00261-CR, 2014 WL 1722171
      (Tex. App.—Texarkana Apr. 30, 2014, pet. granted ........................ 14

Hulit v. State,
       982 S.W.2d 431 (Tex. Crim. App. 1998) .................................... 21–22

Illinois v. Krull,
        480 U.S. 342 (1987) ........................................................................ 23

Maryland v. King,
     569 U.S. ___, 133 S. Ct. 1958 (2013) .............................................. 21

McGee v. State,
    105 S.W.3d 609 (Tex. Crim. App. 2003) .......................................... 22




                                                  vi
McGruder v. State,
    No. 10-13-00109-CR, ___ S.W.3d ___, 2014 WL 3973089
    (Tex. App.—Waco 2014, pet. granted) ............................................ 14

Michigan Dept. of State Police v. Sitz,
     496 U.S. 444 (1990) ........................................................................ 21

Miles v. State,
      241 S.W.3d 28 (Tex. Crim. App. 2007) ............................................ 16

Moore v. State,
     No. 11-13-00347-CR, 2015 WL 5192175
     (Tex. App.—Fort Worth Aug. 21, 2015)............................................ 11

Reeder v. State,
    428 S.W.3d (Tex. App.—Texarkana 2014, pet. granted) ................ 14

Segundo v. State,
    270 S.W.3d 79 (Tex. Crim. App. 2008),
    cert. denied, 558 U.S. 828 (2009) .............................................. 21–22

Skinner v. Railway Labor Executives’ Ass’n,
     489 U.S. 602 (1989) .................................................................. 18–21

Smith v. State,
     No. 13-11-00694-CR, ___ S.W.3d ___, 2014 WL 5901759
     (Tex. App.—Corpus Christi 2014, pet. granted) ............................... 14

State v. Daugherty,
      931 S.W.2d 268 (Tex. Crim. App. 1996) .......................................... 25

State v. Villarreal,
      PD-0306-14, ___ S.W.3d ___, 2014 WL 6734178
      (Tex. Crim. App. 2014) .............................................................passim

Tharp v. State,
     935 S.W.2d 157 (Tex. Crim. App. 1996) .......................................... 19


                                                vii
Vernonia School Dist. 47J v. Acton,
     515 U.S. 646 (1995) ........................................................................ 20

Weems v. State,
    434 S.W.3d 655
    (Tex. App.—San Antonio 2014, pet. granted) ........................... 14–15

STATUTES

TEX. CODE CRIM. PROC. art. 14.04.............................................................. 18

TEX. CODE CRIM. PROC. art. 18.16.............................................................. 16

TEX. CODE CRIM. PROC. art. 38.23........................................................ 24, 26

TEX. PENAL CODE § 1.07(a)(30).................................................................. 24

TEX. PENAL CODE § 49.04(a)................................................................ 11, 16

TEX. PENAL CODE § 49.09(b)(2) ........................................................... 11, 16

TEX. TRANSP. CODE § 724.012(b)........................................................passim

TEX. TRANSP. CODE § 724.012(b)(3)........................................................... 16

TEX. TRANSP. CODE § 524.012(b)(1) .......................................................... 19

U.S. CONST. amend. IV ....................................................................passim

RULES

TEX. R. APP. P. 66.3 .................................................................................. 15

TEX. R. APP. P. 9.4 .................................................................................... 28




                                                   viii
                          IN THE COURT
                  OF CRIMINAL APPEALS OF TEXAS


LAURA DENISE MOORE,                   §
    APPELLANT                         §
                                      §
V.                                    §             PD-1228-15
                                      §
THE STATE OF TEXAS ,                  §
    APPELLEE                          §

          STATE’S PETITION FOR DISCRETIONARY REVIEW


TO THE HONORABLE JUDGES OF
THE COURT OF CRIMINAL APPEALS:

     Comes now the State of Texas, by and through her Tarrant County

Criminal District Attorney, and respectfully urges this Court to grant

discretionary review of this cause in accordance with the rules of appellate

procedure.

             STATEMENT REGARDING ORAL ARGUMENT

     While the reasonableness of statutory mandatory blood draws merits

argument, this Court has already heard oral argument on the instant issues

in other cases currently before the Court. Therefore, the State does not

request oral argument in this case.



                                      9
                           STATEMENT OF THE CASE

       A jury convicted Appellant of felony driving while intoxicated. TEX.

PENAL CODE §§ 49.04(a), 49.09(b)(2).1                (CR1:6, 142,149-50; RR4:29;

RR6:18-19).       Subsequently, the trial court sentenced Appellant to ten

years’ incarceration, probated for five years; the judge also assessed a

$1500 fine. (CR1:149-50; RR7:137-41).



       STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE

       The Eastland Court of Appeals reversed the trial court in an

unpublished opinion authored by Chief Justice Willson. Moore v. State, No.

11-13-00347-CR, 2015 WL 5192175 (Tex. App.—Fort Worth Aug. 21,

2015). Rehearing was not sought. The State files this petition, due on

October 21, 2015, following one extension.


                              STATEMENT OF FACTS

       In this felony driving while intoxicated prosecution, officers seized

Appellant’s blood pursuant to the mandatory blood draw provision

contained in Texas’ implied-consent law. TEX. TRANSP. CODE §724.012(b).

   1
       Statutory references cited throughout refer to the current version unless noted.

                                            10
At the trial court level, the judge denied Appellant’s motion to suppress the

blood evidence. (CR1:138-40; RR3:13-14). On appeal, Appellant’s first

point of error relied on the McNeely decision. Missouri v. McNeely, 569

U.S. ___, 133 S. Ct. 1552 (2013). Appellant also raised two additional jury

instruction contentions; they remain unaddressed due to the appellate

disposition of the McNeely claim. Moore, 2014 WL 5192175, at *1.

      The Eastland Court of Appeals reversed on the blood draw issue; the

appellate court rejected the State’s various arguments regarding the

propriety of the trial judge’s suppression ruling. Id. at *1-5. The trial court

had denied suppression, entering express findings that:

      1) probable cause supported the DWI arrest;
      2) the officer possessed reliable information revealing
         Appellant’s two prior DWIs;
      3) Appellant refused to provide a breath specimen;
      4) Texas’ implied consent framework existed for decades and
         had been enacted due to public policy concerns;
      5) the instant officer relied on the blood draw statute instead of
         seeking a warrant; and
      6) under these circumstances, the compelled sample was
         constitutionally reasonable.

(RR2:24-26,36,43; RR3:8-14). In addition to the ruling on the merits of the

McNeely point, the interim appellate court rejected the State’s argument

regarding the inapplicability of the exclusionary rule in this case. Moore,

2014 WL 5192175, at *4-5.
                                      11
        QUESTIONS PRESENTED FOR REVIEW

            FIRST QUESTION FOR REVIEW

   Does a warrantless, nonconsensual blood draw
 conducted pursuant to TEX. TRANSP. CODE § 724.012(b)
           violate the Fourth Amendment?


          SECOND QUESTION FOR REVIEW

 Are Fourth Amendment warrant-preference exceptions
the sole measure of Fourth Amendment reasonableness
              in warrantless scenarios?


            THIRD QUESTION FOR REVIEW

Do exclusionary rule principles mandate suppression of
blood evidence seized via a warrantless, nonconsensual,
        valid-at-the-time mandatory blood draw?




                          12
                    ARGUMENT AND AUTHORITIES

     This Court is in the midst of grappling with the issues presented

herein.   Whilst a November 2014 decision addressed the merits of the

Fourth Amendment issue in one of the several McNeely-related cases then

pending, what appeared decided remains in flux since the Court granted

rehearing last February. State v. Villarreal, PD-0306-14, ___ S.W.3d ___,

2014 WL 6734178 (Tex. Crim. App. 2014) (reh’g granted, re-submitted

Mar. 18, 2015).    Additionally, the appellate milieu includes six other

submitted McNeely-inspired cases. Weems v. State, 434 S.W.3d 655 (Tex.

App.—San Antonio 2014, pet. granted) (submitted on arguments Nov. 19,

2014, PD-0635-14); Reeder v. State, 428 S.W.3d 930 (Tex. App.—

Texarkana 2014, pet. granted) (submitted on arguments Jan. 14, 2015, PD-

0601-14); Smith v. State, No. 13-11-00694-CR, ___ S.W.3d ___, 2014 WL

5901759 (Tex. App.—Corpus Christi 2014, pet. granted) (submitted Apr.

29, 2015, PD-1615-CR); McGruder v. State, No. 10-13-00109-CR, ___

S.W.3d ___, 2014 WL 3973089 (Tex. App.—Waco 2014, pet. granted)

(submitted Apr. 15, 2015, PD-1263-14); Holidy v. State, No. 06-13-00261-

CR, 2014 WL 1722171 (Tex. App.—Texarkana Apr. 30, 2014, pet. granted)

(mem. op., not designated for publication) (submitted on arguments Jan.

                                   13
14, 2015, PD-0622-14); Cole v. State, 454 S.W.3d 89 (Tex. App.—

Texarkana 2014, pet. granted Apr. 22, 2015) (submitted on arguments Sep.

16, 2015, PD-0077-15).

      The State’s instant petition focuses on two aspects of any McNeely-

related consequences: the validity of a statutorily-compelled draw and the

invalidity of the exclusionary rule’s application. Villarreal only resolved the

merits of the mandatory-draw issue, not addressing the applicability of the

exclusionary rule.    Villarreal, 2014 WL 6734178.         Nevertheless, the

exclusionary rule issue is already before this Court. See Cole, 454 S.W.3d

at 89 (fourth ground granted); see also Weems, 434 S.W.3d at 666

(applying exclusionary rule). In other words, this Court has already granted

review on both issues presented herein.

      Review should be granted in this case because it involves important

questions of law that are have not yet been finally addressed by this Court,

matters in conflict in the interim appellate courts, and a misapplication of a

Supreme Court decision that has been interpreted as undermining the

validity of the Texas implied-consent statute. TEX. R. APP. P. 66.3(a)-(d),(f).




                                      14
I.   Valid, compelled statutory blood draw

     The State’s appellate stance is in lockstep with that of prosecutors

from other counties across the State who have already had cases granted

for review on a McNeely-related issue. Hence, the State respectfully asks

this Court to dispose of the instant case in a manner consistent with the

petitions in Villarreal, Weems, Reeder, Smith, McGruder, Holidy, and Cole.

Here, the officer reasonably relied on an existing, ubiquitous narrowly-

focused, reasonable statute to obtain a compelled blood draw. The seizure

occurred because the officer possessed probable cause that Appellant’s

impaired conduct constituted felony DWI. TEX. PENAL CODE §§ 49.04(a),

49.09(b)(2); TEX. TRANSP. CODE § 724.012(b)(3).

     In addition, the State differs with Villarreal’s original-submission

decision and further asserts that several important arguments should be

considered on the merits.

     A.    Codification of Fourth Amendment principles

     Villarreal failed to consider that the implied-consent statute codified

Fourth Amendment principles.     For instance, this Court has previously

recognized a statutory codification of the exigency exception. See Miles v.

State, 241 S.W.3d 28, 39–40 n.54 (Tex. Crim. App. 2007) (citing TEX. CODE

CRIM. PROC. art. 18.16). McNeely recognized that every case involving the
                                    15
dissipation of alcohol included some exigency. McNeely, 133 S. Ct. at

1561, 1568.      This ever-present exigency must be considered when

assaying the reasonableness of statutory draws.

      Combine this static alcohol-evaporation-exigency consideration with

the Legislature’s clear codification of the gravity-of-the-offense exigency.

The implied-consent statute extinguished a defendant’s right to refuse

where an officer possesses probable cause to believe that certain

enumerated, egregious circumstances exist.              TEX. TRANSP. CODE

§ 724.012(b).    Defendants only lose their refusal right under carefully

circumscribed scenarios involving felonious intoxication-related offenses

and/or resultant injuries necessitating hospitalization. Id.   The statute only

applies to the most serious categories of DWI offenders.

      This statutory limitation amounts to a codification of an additional

recognized exigency unrelated to blood-alcohol dissipation.          Welsh v.

Wisconsin held that the Fourth Amendment authorizes common-sense

consideration of the underlying offense’s gravity when weighing the

existence of an exigency.      Welsh v. Wisconsin, 466 U.S. 740, 751–52

(1984) (exigency calculations include consideration of a crime’s severity).

Consideration of a crime’s gravity is the essence of reasonableness


                                      16
because the State’s interest is greater in a more serious case. Cf. TEX.

CODE CRIM. PROC. art. 14.04 (authorizing warrantless arrests for felonies

where an officer did not observe the offense).

      Of course, it almost goes without saying that Texas’ implied-consent

legislation codified Fourth Amendment probable cause requirements. U.S.

CONST. amend. IV. Predicate elements of the implied consent statute

codify this well-known quantum-of-evidence as a requirement for a

compelled search. TEX. TRANSP. CODE § 724.012(b). The probable cause

requirement—in      tandem   with   the    codified       gravity-of-the-crime   and

dissipation-of-alcohol   exigencies—creates           a     neutral,   non-arbitrary

framework authorizing a narrowly-defined seizure from an already-in-

custody arrestee.     These refinements in the implied-consent statute’s

structure embrace the essence of Fourth Amendment reasonableness.

      B.     Special-needs framework adds to the reasonableness
             calculation

      The now-withdrawn Villarreal decision rejected application of the

Supreme Court’s special needs doctrine to the mandatory blood draw

framework.     Villarreal, 2014 WL 6734178, at *14–15; see Skinner v.

Railway Labor Executives’ Ass’n, 489 U.S. 602, 619 (1989). However, the

Court did not consider that blood drawn pursuant to Chapter 724’s mandate

                                      17
also implicates administrative license revocation [ALR] procedures, a

separate regulatory process that focuses on protecting the traveling public

by removing offenders from the road.             See TEX. TRANSP. CODE

§ 524.012(b)(1) (mandating license suspension based upon BAC).

     “The primary purpose of the administrative license suspension statute

is not to deter the licensee or to seek retribution, but to protect the public

from the carnage on the public roads of Texas caused by drunk drivers.”

Tharp v. State, 935 S.W.2d 157, 159 (Tex. Crim. App. 1996).             Such

regulation focuses on the government’s strong interest in removing

intoxicated drivers from the road, just as railroad regulation in Skinner

sought to increase railway safety by detecting intoxicated employees.

Compare Skinner, 489 U.S. at 620–21 with Tharp, 935 S.W.2d at 159.

     Special needs’ principles recognize the statute’s provision of a

neutral, detached vehicle for protecting citizens from impaired drivers and

defendants from unfettered discretion.        The special-needs exception

constitutes another factor to consider in a non-dualistic analysis that

renders Texas’ compelled-draw framework reasonable.




                                     18
     C.     Erroneous consideration of the “Less Intrusive
            Means” test

     The original Villarreal decision considered the ready availability of

warrants when rejecting the validity of Texas’ mandatory draw statute.

Villarreal, 2014 WL 6734178, at *18 (finding no compelling need to uphold

warrantless, nonconsensual blood searches where warrants are “often

readily available”). However, factors such as electronic warrants and the

availability of a magistrate shift the focus away from an officer’s conduct

and, instead, weigh considerations of alternative means. But see McNeely,

133 S. Ct. at 1560–64 (Part IIB’s alternative means analysis applied when

determining whether per se exigency existed).

     The Supreme Court resoundingly rejected applying less-intrusive-

alternative-practices arguments to Fourth Amendment cases not resolved

under the exigency exception. Vernonia School Dist. 47J v. Acton, 515

U.S. 646, 663–64 n.3 (1995) (upholding warrantless, random urine

screening    of    athletes   after      considering    diminished    privacy,

unobtrusiveness, and severity of need, spurning arguments relying on less

intrusive alternatives); Skinner, 489 U.S. at 629 n.9 (upholding random,

suspicionless drug screening of railway employees under special needs

exception    and     discarding       less-drastic-and-equally-effective-means

                                       19
arguments).    One footnote in Skinner flatly debunks the propriety of

considering less-drastic alternatives in scenarios that include warrantless

and even suspicionless seizures for toxicological testing, similar to

Appellant’s facts. Id.

      The State maintains that less-restrictive-alternatives logically apply

when a seizure’s validity rests solely on the temporal factors presenting an

exigency; less-drastic, post-hoc what-ifs do not apply, however, to

reasonableness calculations factoring in other warrantless exceptions.

Villarreal’s analysis mistakenly applied this eschewed construct.

II.   Implied-consent draws are reasonable

      Reasonableness has always been the linchpin of the Fourth

Amendment, venerated in the provision’s plain language.         U.S. CONST.

amend IV; Hulit v. State, 982 S.W.2d 431, 435–36, 438 (Tex. Crim. App.

1998). Discernment of what is “reasonable” requires courts to consider the

balance between an individual’s privacy and legitimate governmental

interests, especially when public safety is of utmost concern.         See

Maryland v. King, 569 U.S. ___, 133 S. Ct. 1958, 1979 (2013); Michigan

Dept. of State Police v. Sitz, 496 U.S. 444, 455 (1990); Segundo v. State,

270 S.W.3d 79 (Tex. Crim. App. 2008), cert. denied, 558 U.S. 828 (2009).


                                     20
Villarreal viewed the choice between applying a Fourth Amendment

exception and consideration of a reasonableness balancing approach as

mutually exclusive analytical constructs. The State respectfully believes

that this black-white consideration of these two concepts is mistaken,

especially in light of the fact that this Court has relied upon the balancing

approach to assay reasonableness on similar issues. See Segundo, 270

S.W.3d at 96–99; McGee v. State, 105 S.W.3d 609 (Tex. Crim. App. 2003);

Hulit, 982 S.W.2d at 434 n.1, 436.

     Again, the statute is reasonable.     Years ago, the Supreme Court

recognized that a framework requiring a driver’s consent was anything but

nonsensical.   The Breithaupt court pointed to then recently adopted

implied-consent provisions and wrote:

     It might be a fair assumption that a driver on the highways in
     obedience to a policy of the State, would consent to have a
     blood test made as part of a sensible and civilized system
     protecting himself as well as other citizens not only from the
     hazards of the road due to drunken driving, but also from some
     use of dubious lay testimony.

Breithaupt v. Abram, 352 U.S. 432, 435 n.2 (1957). The State contends

that compelled draws under implied-consent provisions are inherently

reasonable when weighing the needs of all involved.          Indeed, Fourth

Amendment reasonableness underpins the statute.            The well-known
                                     21
exceptions—as argued in the myriad cases already before this Court—

considered individually and in concert with each other, alongside a

balancing of the competing interests, all support the continued viability of

Texas’ implied-consent framework.

III.   Exclusionary rule inapplicable and not invoked

       Statutory mandatory blood-draws are reasonable. But see Villarreal,

2014 WL 6734178 (opinion on original submission; under re-submission).

When the ink dries on Villarreal and future McNeely-related decisions and if

those cases are adverse to the State on the merits, the rules requiring

evidence exclusion should not apply to mandatory blood-draw scenarios

that occurred prior to the Supreme Court’s April 2013 pronouncement.

       Federally, the good-faith exception to the Fourth Amendment’s

exclusionary rule applies when law enforcement, at the time of the search,

acted with objectively reasonable reliance on (1) a statute, later declared

unconstitutional, or (2) binding judicial precedent, subsequently overruled.

Illinois v. Krull, 480 U.S. 342, 349–57 (1987) (statutes); Davis v. United

States, ___ U.S. ___, 131 S. Ct. 2419, 2428–34 (2011) (caselaw).

       Nor does the Texas exclusionary rule apply.       First, the officer’s

conduct at the time did not trigger exclusions under subsection (a).


                                    22
Second, the statutory good faith exception set out in article 38.23(b) is

inapplicable in this instance and has been previously misinterpreted. TEX.

CODE CRIM. APP. § 38.23(b).       Overall, invocation of exclusionary rule

principles should hinge on the intent of the statute as a whole, including its

history.

      As for subsection (a)’s language, a violation at the time of the seizure

is the exclusion trigger.   When Appellant’s blood was drawn, no one

credibly questioned the validity of the officer’s statutory authority. At the

time of the seizure, the officer followed then-existing law. See TEX. CODE

CRIM. PROC. art. 38.23(a); see also TEX. PENAL CODE § 1.07(a)(30) (defining

“law” as meaning the state and federal constitution and statutes, in addition

to the written opinions of a court of record); see also Davis, 131 S. Ct. at

2427–28 (“obtained” applies to unlawfulness at the time of the seizure;

exclusion not triggered in an absence of police culpability). Simply put, the

instant circumstances do not invoke exclusion.

      Additionally, the State avers that Texas jurisprudence mistakenly

limits exclusionary rule application; legislators never intended that article

38.23(b)’s warrant provision be the sole exclusionary exception. Instead,

Texans were to be afforded the same exclusionary protection coextensive


                                     23
with federal law. See State v. Daugherty, 931 S.W.2d 268, 275 & n.1 (Tex.

Crim. App. 1996) (McCormick, P.J., concurring and dissenting, joined by

White and Keller, JJ.) (citations omitted); Garcia v. State, 829 S.W.2d 796,

803 n.1 (Tex. Crim. App. 1992) (Miller, J., concurring, joined by Campbell,

J.). Finally, rejecting exclusion where an officer acted with obeisance to

existing rules provides incentive for officers to follow the law, fulfilling the

overlying purpose of the exclusionary rule.

      The Supreme Court mentioned, in dictum, the application of the

exclusionary rule versus Fourth Amendment violations in a non-blood-draw

scenario decided recently. In Heien, the Court weighed the validity of an

investigatory stop where the officer misunderstood the traffic code provision

he relied on to support the stop. See Heien v. North Carolina, ___ U.S.

___, 135 S. Ct. 530, 538–39 (2014). The Supreme Court considered the

reasonableness of the officer’s mistake that lead to the stop and arrest

when considering remedies. In so doing, the Court pointed out the myriad

decisions finding exclusionary-rule invocation inappropriate where the

officer’s conduct—valid at the time—was later declared unconstitutional.

Id.   With only one justice dissenting, the Supreme Court’s decision

pondered the exclusionary rule’s limits that had been briefly considered in


                                      24
Michigan v. DeFillippo.    Heien, 135 S. Ct at 538–39; see generally

Michigan v. DeFillippo, 443 U.S. 31, 3–9 (1979) (suggesting that exclusion

might have been appropriate had the provision been “grossly and flagrantly

unconstitutional”).

      Although the Heien discussion is merely dicta, it reiterates the

importance of focusing on the fact that the instant officer’s conduct fully

complied with mandatory, settled law at the time of Appellant’s arrest.

Heien, 135 S. Ct. at 538–39.         McNeely and subsequent caselaw

questioning implied-consent blood draws came later. Since, no violation

occurred at the time of the Appellant’s 2011 blood draw, Texas’

exclusionary provision does not apply.      TEX. CODE CRIM. PROC. art.

38.23(a). And since any legal error by the officer was reasonable, Fourth

Amendment cases do not mandate the remedy of exclusion. See Heien,

135 S. Ct. at 539.




                                    25
                      CONCLUSION AND PRAYER

     Review should be granted and the decision of the Court of Appeals

should be reversed.    The cause should be remanded to the Court of

Appeals to address Appellant’s remaining jury-charge-related issues.

Ultimately, Appellant’s felony DWI with a child passenger conviction should

be upheld.

                                  Respectfully submitted,

                                  SHAREN WILSON
                                  Criminal District Attorney
                                  Tarrant County, Texas

                                  DEBRA WINDSOR, Assistant
                                  Criminal District Attorney
                                  Chief, Post-Conviction

                                  /s/ Tanya S. Dohoney
                                  TANYA S. DOHONEY
                                  Assistant Criminal District Attorney
                                  Tim Curry Criminal Justice Center
                                  401 W. Belknap
                                  Fort Worth, Texas 76196-0201
                                  (817) 884-1687
                                  FAX (817) 884-1672
                                  State Bar No. 02760900
                                  ccaappellatealerts@tarrantcountytx.gov




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                                CERTIFICATE OF COMPLIANCE

         This document complies with the typeface requirements of TEX. R.

APP. P. 9.4(e) because it has been prepared in a conventional typeface no

smaller than 14-point for text and 12-point for footnotes. This document

also complies with the word-count limitations of TEX. R. APP. P. 9.4 (i)

because it contains less than 3900 words, excluding any parts exempted

by TEX. R. APP. P. 9.4(i)(1), as computed by Microsoft Word, the computer

software used to prepare the document.

                                                       /s/ Tanya S. Dohoney
                                                       TANYA S. DOHONEY


                                    CERTIFICATE OF SERVICE

         A true copy of the State's brief has been e-served to opposing

counsel, the Hon. Richard Henderson, 1999 Throckmorton Street, Suite

540, Fort worth, Texas 76102 at richard@rahenderson.com, on the 21st day

of October, 2014.

                                                       /s/ Tanya S. Dohoney
                                                       TANYA S. DOHONEY



U:\BRIEFS\PDRs & Merit Briefs\101215 moore mcneely pdr.docx




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