                                                                            PD-0836-15
                       PD-0836-15                         COURT OF CRIMINAL APPEALS
                                                                          AUSTIN, TEXAS
                                                          Transmitted 7/6/2015 2:02:07 PM
                                                            Accepted 7/7/2015 3:39:48 PM
                                                                           ABEL ACOSTA
                          No. 14-13-00208-CR                                       CLERK

                TO THE COURT OF CRIMINAL APPEALS

                      OF THE STATE OF TEXAS


JONATHAN ALBERT LEAL,                                           Appellant

v.

THE STATE OF TEXAS,                                              Appellee



                     Appeal from Galveston County



                              * * * * *

            STATE’S PETITION FOR DISCRETIONARY REVIEW


                              * * * * *


 July 7, 2015
                           LISA C. McMINN
                       State Prosecuting Attorney
                         Bar I.D. No. 13803300

                       STACEY M. GOLDSTEIN
                   Assistant State Prosecuting Attorney
                          Bar I.D. No. 24031632

                             P.O. Box 13046
                           Austin, Texas 78711
                       information@spa.texas.gov
                       512-463-1660 (Telephone)
                           512-463-5724 (Fax)
           IDENTITY OF JUDGE, PARTIES, AND COUNSEL

*   The parties to the trial court’s judgment are the State of Texas and Appellant,
    Jonathan Albert Leal.

*   The trial Judge was Hon. John Ellisor.

*   Counsel for the State at trial were Daniel Eugene Lazarine, Jennifer Stabe, and
    Jared Robinson, Galveston County Justice Center, 600 59th Street, Suite 1001,
    Galveston, Texas 77511.

*   Counsel for the State before the Court of Appeals was Allison Lindblade, 600
    59th Street, Suite 1001, P.O. Box 17254, Galveston, Texas 77551.

*   Counsel for the State before the Court of Criminal Appeals is Stacey M.
    Goldstein, Assistant State Prosecuting Attorney, P.O. Box 13046, Austin,
    Texas 78711.

*   Counsel for Appellant at trial and before the Court of Appeals was Hon. Mark
    W. Stevens, P.O. Box 8118, Galveston, Texas 77553.
                                       TABLE OF CONTENTS

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii-iv

STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-2

STATEMENT OF PROCEDURAL HISTORY. . . . . . . . . . . . . . . . . . . . . . . . . . 2-3

GROUNDS FOR REVIEW.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

1.      Is a challenge to a warrantless blood draw under T EX. T RANS. C ODE §
        724.012(b)(3)(B) preserved for review when Appellant did not explain the
        impact of Missouri v. McNeely in his suppression motion or at trial but did
        so later on rehearing?

2.      Is a warrantless, mandatory blood draw conducted pursuant to T EX.
        T RANS. C ODE § 724.012(b)(3)(B)—the repeat offender provision—
        reasonable under the Fourth Amendment?

3.      Do the federal and state (T EX. C ODE C RIM. P ROC. art. 38.23) exclusionary
        rules require suppression when, at the time of the search, the warrantless
        blood draw was authorized by T EX. T RANS. C ODE § 724.012(b)(1)(A) and
        binding caselaw?

ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3-11

PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

APPENDIX A (Opinion of the Court of Appeals After Remand)




                                                         i
APPENDIX B (Opinion of the Court of Appeals on Original Submission)

APPENDIX C (Amended Motion to Suppress)




                                     ii
                                        INDEX OF AUTHORITIES

Cases

Aliff v. State, 627 S.W.2d 166 (Tex, Crim. App. 1982). . . . . . . . . . . . . . . . . . . . 9 n.7

Beeman v. State, 86 S.W.3d 613 (Tex. Crim. App. 2002). . . . . . . . . . . . . . . . . . 7 n.4

Bishop v. State, 85 S.W.3d 819 (Tex. Crim. App. 2002).. . . . . . . . . . . . . . . . . . 8 n.6

Buchanan v. State, 207 S.W.3d 772 (Tex. Crim. App. 2006). . . . . . . . . . . . . . 10 n.9

Cole v. State, PD-0077-15 (granted Apr. 22, 2015).. . . . . . . . . . . . . . . . . 11, 11 n.12

Douds v. State, PD-0857-14 (granted Sept. 17, 2014; argued and submitted Mar. 18,
2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Eisenhauer v. State, 754 S.W.2d 159 (Tex. Crim. App. 1988). . . . . . . . . . . . . . 8 n.6

Heidelberg v. State, 144 S.W.3d 535 (Tex. Crim. App. 2004). . . . . . . . . . . . . 10 n.9

Holidy v. State, No. PD-0622-14 (granted Aug. 20, 2014; argued and submitted Jan.
14, 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

State v. Johnston, 336 S.W.3d 649 (Tex. Crim. App. 2011). . . . . . . . . . . . . . . . 7 n.4

Karenev v. State, 281 S.W.3d 428 (Tex. Crim. App. 2009). . . . . . . . . . . . . . . . 9 n.8

Lankston v. State, 827 S.W.2d 907 (Tex. Crim. App. 1992). . . . . . . . . . . . . . . . . . . 7

Leal v. State, 456 S.W. 567 (Tex. Crim. App. 2015).. . . . . . . . . . . . . . . . 2, 6 n.3, 10

Leal v. State, 452 S.W.3d 14 (Tex. App.—Houston [14th] 2014).. . . . . 2, 5 n.5, 5-6

Leal v. State, __ S.W.3d __, No. 14-13-00208-CR, 2015 Tex. App. LEXIS 6460 (Tex.
App.—Houston [14th] 2015) (op. on remand). . . . . . . . . . . . . . . . . . . . . . . . 2-3, 10

Lovill v. State, 319 S.W.3d 687 (Tex. Crim. App. 2009).. . . . . . . . . . . . . . . . 8 n.5, 9

                                                              iii
Missouri v. McNeely, 133 S. Ct. 1552 (2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 7

Pena v. State, 285 S.W.3d 459 (Tex. Crim. App. 2009). . . . . . . . . . . . . . . . . . . 8 n.5

Pesina v. State, 676 S.W.2d 122 (Tex. Crim. App. 1984). . . . . . . . . . . . . . . . . . 9 n.7

Reeder v. State, No. PD-0601-14 (granted Aug. 20, 2014; argued and submitted Jan.
15, 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

State v. Villarreal, No. PD-0306-14, 2014 Tex. Crim. App. LEXIS 1898 (Tex. Crim.
App. Nov. 26, 2014, reh’g granted). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 10 n.11

Weems v. State, No. PD-0635-14 (granted Aug. 20, 2014; argued and submitted Nov.
17, 2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 n.12

Williams v. State, 773 S.W.2d 525 (Tex. Crim. App. 1988). . . . . . . . . . . . . . . . 9 n.8

Statutes

T EX. C ODE C RIM. P ROC. art. 38.23. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

T EX. T RANS. C ODE § 724.012(b)(3)(B). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Rule

T EX. R. A PP. P. 33.1(a)(1)(A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Act

Acts 2009, 81st Leg., ch. 1348, § 18, eff. Sept. 1, 2009. . . . . . . . . . . . . . . . . . . . . . 7




                                                             iv
                              No. 14-13-00208-CR

                  TO THE COURT OF CRIMINAL APPEALS

                          OF THE STATE OF TEXAS


JONATHAN ALBERT LEAL,                                                    Appellant

v.

THE STATE OF TEXAS,                                                       Appellee


                         Appeal from Galveston County


                                   * * * * *

          STATE’S PETITION FOR DISCRETIONARY REVIEW

                                   * * * * *

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

     The State Prosecuting Attorney respectfully urges this Court to grant review.

             STATEMENT REGARDING ORAL ARGUMENT

     The State does not request oral argument.

                        STATEMENT OF THE CASE

      Appellant’s blood was drawn pursuant to the repeat offender mandatory draw

provision. See T EX. T RANS. C ODE § 724.012(b)(3)(B). Before trial, he filed an

amended motion to suppress, arguing that the repeat-offender provision is

                                        1
unconstitutional and that the then-pending case of Missouri v. McNeely, 133 S. Ct.

1552 (2013), may impact the legality of the warrantless draw. Appendix C; 1 CR 79.

After a hearing, during which only the validity of the stop was litigated, the trial court

denied Appellant’s motion. See, generally, 3 RR 59-119. Appellant objected at trial

to the admission of the blood test results citing his prior objections. 4 RR 92. A jury

subsequently found Appellant guilty of felony DWI, and the trial court sentenced him

to eight years’ imprisonment but suspended the sentence and granted community

supervision. The Supreme Court then rendered its decision in McNeely, and Appellant

moved for a new trial, again challenging the statutorily compelled blood draw. 7 RR

4-26; 1 CR 145. The trial court denied the motion after a hearing. 7 RR 4-26; 1 CR

47.

                  STATEMENT OF PROCEDURAL HISTORY

      The majority of the court of appeals reversed the trial court’s denial of

Appellant’s motion for new trial. Leal v. State, 452 S.W.3d 14 (Tex. App.—Houston

[14th] 2014). This Court refused the State’s PDR but granted review on its own

motion and remanded for the court of appeals to decide whether Appellant properly

preserved review. Leal v. State, 456 S.W. 567 (Tex. Crim. App. 2015). The court of

appeals held that Appellant’s claim was preserved and reversed again based on its

previous decision. Leal v. State, __ S.W.3d __, No. 14-13-00208-CR, 2015 Tex. App.



                                            2
LEXIS 6460 (Tex. App.—Houston [14th] 2015) (op. on remand).

                             GROUNDS FOR REVIEW

1.       Is a challenge to a warrantless blood draw under T EX. T RANS. C ODE §
         724.012(b)(3)(B) preserved for review when Appellant did not explain the
         impact of Missouri v. McNeely in his suppression motion or at trial but did
         so later on rehearing?

2.       Is a warrantless, mandatory blood draw conducted pursuant to T EX.
         T RANS. C ODE § 724.012(b)(3)(B)—the repeat offender provision—
         reasonable under the Fourth Amendment?

3.       Do the federal and state (T EX. C ODE C RIM. P ROC. art. 38.23) exclusionary
         rules require suppression when, at the time of the search, the warrantless
         blood draw was authorized by T EX. T RANS. C ODE § 724.012(b)(1)(A) and
         binding caselaw?

                                    ARGUMENT

1.       Appellant failed to properly preserve his challenge to the mandatary blood
         draw.

         A. Suppression Motion

         Before trial, Appellant filed an amended motion to suppress challenging the

mandatory blood draw.1       Appendix C; 1 CR 79. He argued, “Sec. 724.011 is

unconstitutional on its face and as applied, as a violation of U.S. Constitution, Amend.

VIII, which prevents unreasonable searches and seizures.” Appendix C; 1 CR 79.

Immediately following, he asserted:



     1
      It also reasserted the grounds presented in his first motion to suppress, which
challenged the validity of the stop. 1 CR 27-28.

                                           3
      The matter is presently under review before the U.S. Supreme Court.
      Missouri v. McNeely, USSC Docket No. 11-1425, was argued on January
      9, 2013. Briefly, the Supreme Court of Missouri apparently ruled that a
      warrantless blood draw violated the Eighth Amendment, and the United
      States Supreme Court granted cert. The publicly available recording of
      the arguments before the U.S. Supreme Court . . . suggest that a
      significant number of justices were openly concerned about the prospect
      of a government official approaching an unwilling citizen with a needle.
      Such information is not of course binding or in many instances predictive
      of the ultimate ruling, but they do suggest that the issue is a close one and
      should be carefully reviewed before this court commits resources to a trial
      which may be fatally flawed from the beginning.

Appendix C; 1 CR 79. The trial court held a hearing, during which only the validity

of the stop was actively litigated. See, generally, 3 RR 59-119. The trial court denied

Appellant’s motion. 3 RR 119; 4 RR 161.

      Appellant also objected at trial, citing “all prior objections,” when the State

proffered the test results. 4 RR 92. The trial court ruled that the evidence was

admissible. 4 RR 92.

      Finally, before addressing the jury charge, the judge noted his earlier rulings:

“I think I’ve made this ruling on the record. But just in case I didn’t, we had a Motion

to Suppress Evidence in this case. And there was an amended Motion to Suppress.

And after hearing and consideration of the facts and case law, that motion is denied.

Thank you.” 4 RR 161.

      B. Supplemental New Trial Motion

      Relying on the then-new decision in McNeely, Appellant filed a supplemental


                                           4
motion for new trial, claiming for the first time that that there was no consideration

by law enforcement as to whether a warrant could have been obtained or the existence

of exigent circumstances. 1 CR 145. He also maintained that the mandatory draw

provision “unconstitutionally substitutes two prior convictions for any constitutional

basis for intrusion into the body.”2 1 CR 145. Appellant’s claims were addressed at

a hearing, 7 RR 4-26, and the trial court later denied Appellant’s motion. 1 CR 147.

       C. Court of Appeals

       A majority of the court of appeals held that Appellant’s Fourth Amendment

challenge to the blood draw was both timely and specific. Leal, 2015 Tex. App.

LEXIS 6460, at *5-6. It concluded that the trial court implicitly overruled Appellant’s

amended motion to suppress when it admitted the blood test results over Appellant’s

trial objection. Id. at *4. The majority also held that the trial court’s denial of

Appellant’s supplemental motion for rehearing, filed five days after McNeely was

decided, also preserved his claim. Id. at *5.

       Justice Frost concurred. Id. at *7 (Frost, J., concurring). Regarding timeliness,

he concluded that the Appellant’s amended suppression motion, denied in toto,

preserved the claim. Id. at *8. In Justice Frost’s view, it was the only suppression



   2
     As noted by the court of appeals, Appellant’s amended motion was untimely;
however, the trial court granted Appellant leave to file, and the State did not object.
Leal, 2015 Tex. App. LEXIS 6460, at *5; 7 RR 8.

                                           5
motion before the court because it superceded Appellant’s first motion; therefore,

when remanding this case, this Court erred to state that the suppression hearing

pertained to the first motion.3 Id. at *9-10, *10-11 n.9. Further, Justice Frost

maintained that Appellant’s failure to address the issue at the hearing is of no

consequence because not all grounds need to be discussed at a hearing to preserve

error. Id. *9-10. And there was no express or implied waiver. Id. *12-13. He also

observed that Appellant’s challenge was specific. Id. at *8. The amended motion

asserted that the blood was drawn pursuant to a statute that violates the Fourth

Amendment; it is apparent that Appellant’s mention of the Eighth Amendment was

a mistake. Id. at *8-9.

       D. Analysis

       First, Appellant’s stark mention of the constitutionality of the statute and

McNeely in his amended suppression motion were not sufficient to put the trial court

on notice of the precise claim he later raised on appeal.     See T EX. R. A PP. P.

33.1(a)(1)(A) (requiring a complaint to be timely and the reason to be made with



   3
       This Court stated:
“Appellant also filed an amended motion to suppress evidence, challenging the
warrantless blood draw on Fourth Amendment grounds. A hearing was held on the
motion to suppress complaining of an illegal stop, and the trial court denied the
motion. That hearing did not pertain to appellant’s amended motion to suppress.”

Leal, 456 S.W.3d at 568.

                                         6
“sufficient specificity” to make the trial court aware of it). Though Appellant claimed

that the statute is unconstitutional, he never made any connection between McNeely

and the validity of the statute. McNeely’s sole issue was exigency. By design, it had

nothing to with Missouri’s implied consent statute (let alone Texas’). McNeely, 133

S. Ct. at 1567-68.   It would have been difficult for even a seasoned trial judge to

conclude, on the basis of Appellant’s motion alone, that he was challenging the

validity of the statute because, in the absence of exigent circumstances or a warrant,

a non-consensual blood draw violates the Fourth Amendment.

        Beyond connectivity, the novelty of the controversy increased the need for

Appellant to detail, in plain language, why suppression was warranted. See Lankston

v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992). The repeat offender provision

has been in effect since September 1, 2009, Acts 2009, 81st Leg., ch. 1348, § 18, eff.

Sept. 1, 2009. Until McNeely no one mounted a serious challenge to it under the

theory it violates the Fourth Amendment in the absence of exigency or a warrant.4

The novelty of the issue would have made it nearly impossible for the trial court to

frame the issue, as currently understood, for Appellant. Thus, it was crucial for


    4
       This Court recognized that the statute implicitly dispenses with the warrant
requirement. See State v. Johnston, 336 S.W.3d 649, 660 (Tex. Crim. App. 2011)
(“Chapter 724 of the Texas Transportation Code, which contains Texas’ implied
consent statutes, governs the State’s ability to obtain a breath or blood sample from
a DWI suspect when there is no warrant.”) (citing Beeman v. State, 86 S.W.3d 613,
616 (Tex. Crim. App. 2002)).

                                          7
Appellant to have explained his then-unheard of McNeely claim, misnomer

notwithstanding.5 Appellant’s broad and seemingly unrelated statements should not

be regarded as preserving the claim raised on appeal.6

       Appellant’s supplemental motion for new trial did not preserve review either.

This Court has held that an unobjected-to complaint that was apparent during trial is

not preserved for appeal when it is raised for the first time in a motion for new trial.


   5
      See Lovill v. State, 319 S.W.3d 687, 692 (Tex. Crim. App. 2009) (when a legal
claim is rarely urged, like a selective prosecution claim, the objecting party should
invoke the proper federal and state constitutional provisions or use key legal phrases);
Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009) (novel argument of
greater rights under Texas’ due course of law provision was not sufficiently
distinguished from the federal Due Process Clause in the trial court).
   6
      Even if Appellant’s amended motion had been sufficiently specific, contrary to
Justice Frost’s opinion, the record could be construed as Appellant having abandoned
or waived the issue. Because he never argued the issue at the suppression hearing,
the judge never explicitly ruled on it. Therefore, the trial judge’s statements that he
overruled Appellant’s motions to suppress could be limited to the validity of the stop
issue the trial judge did explicitly resolve. 3 RR 119; 4 RR 161. Depending on how
the trial court’s statements are construed, there is authority from this Court that may
support a contrary determination, however. In Bishop v. State, 85 S.W.3d 819, 821-22
(Tex. Crim. App. 2002), this Court stated the trial courts have the authority to dispose
of a motion based on the motion alone. See also Eisenhauer v. State, 754 S.W.2d 159,
161 (Tex. Crim. App. 1988) (stating that a motion to suppress that raised both federal
and state search and seizure provisions was sufficient to preserve state constitutional
claim when oral argument covered only the federal constitutional claim).

There is also a question as to whether Appellant’s objection to the admission to the
blood test results during trial even included his non-specific amended motion to
suppress ground. As the State noted in its brief below, State’s Brief on Remand at 7-
8, his objections immediately preceding the final “all prior objections” statement did
not pertain to the validity of the statutory draw itself. 4 RR 73-92.

                                           8
Lovill, 319 S.W.3d at 693. Here, there is no reason why Appellant could not have

formulated his Fourth Amendment challenge to the statutory blood draw during trial.

As explained above, McNeely did not purport to address any implied consent

mandatory draw statute; therefore, on its face, it had no applicability to the statutory

draw of Appellant’s blood. Further, the Supreme Court adopted McNeely’s argument,

of which Appellant was aware before trial.

       It could be argued that the basis for Appellant’s claim did not become available

until McNeely was decided because, until then, Texas law appeared to endorse the per

se exigency rule.7 So until per se exigency was not longer available, a defendant

moving to suppress BAC results had no reason to challenge the legality of a draw

under the statute. Before McNeely, any challenge would have been deemed harmless

with exigency as the sole legal basis. However, because McNeely’s issue was clear-

cut, Appellant should have anticipated the need to make the comprehensive argument

he ultimately raised in his new trial motion.8       But even assuming it was not



   7
      Aliff v. State, 627 S.W.2d 166, 169-70 (Tex, Crim. App. 1982); see also Pesina
v. State, 676 S.W.2d 122, 123-27 (Tex. Crim. App. 1984) (same).
  8
     See Williams v. State, 773 S.W.2d 525, 534-35 (Tex. Crim. App. 1988), aff’d on
reh’g (Batson claim could not be raised for the first time on appeal even though
Batson was decided after Appellant’s trial; the legal basis was not so novel that it
could not have been reasonably anticipated); see also Karenev v. State, 281 S.W.3d
428, 434 (Tex. Crim. App. 2009) (facial challenge to a presumptively constitutional
statute cannot be raised for the first time on appeal).

                                           9
foreseeable, Appellant should have challenged each legal basis on its own terms.9

           The court of appeals erred to hold that Appellant’s blood draw challenge was

preserved.

2.         Even assuming error was preserved, the draw was reasonable under the
           Fourth Amendment.

           The majority of the court of appeals reversed the trial court’s denial of

Appellant’s motion for new trial.10 Leal, 452 S.W.3d at 23. It stated, “We are

persuaded by the reasoning of our sister courts of appeal and join them in concluding

that the repeat-offender provision of the implied-consent statute . . . is not one of the

recognized exceptions to the warrant requirement.” Id. The court then concluded

that the draw was not justified by exigent circumstances or valid consent. Id. at 23-32.

Justice Frost dissented and, in doing so, adopted a similar rationale as Presiding Judge

Keller in State v. Villarreal.11 Id. at 32-40 (Frost, J., dissenting).

           The warrantless blood draw, conducted under Texas Transportation Code


      9
     See, e.g., Buchanan v. State, 207 S.W.3d 772, 776-79 (Tex. Crim. App. 2006)
(an objection under the Fourth Amendment does not preserve a challenge to an arrest
under Chapter 14 of the Code of Criminal Procedure); Heidelberg v. State, 144
S.W.3d 535, 539-43 (Tex. Crim. App. 2004) (an objection under the Fifth Amendment
does not preserve a Texas constitutional challenge).
     10
    The court of appeals incorporated its first opinion by reference on remand. Leal,
2015 Tex. App. LEXIS 6460, at *1.
      11
      No. PD-0306-14, 2014 Tex. Crim. App. LEXIS 1898 (Tex. Crim. App. Nov.
26, 2014, reh’g granted).

                                             10
Section 724.012(b)(3)(B), was reasonable under Fourth Amendment jurisprudence.

Review should be granted because the same issue is pending on rehearing in

Villarreal, and in Holidy v. State, No. PD-0622-14 (granted Aug. 20, 2014; argued

and submitted Jan. 14, 2015), Reeder v. State, No. PD-0601-14 (granted Aug. 20,

2014; argued and submitted Jan. 15, 2015), and Douds v. State, PD-0857-14 (granted

Sept. 17, 2014; argued and submitted Mar. 18, 2015).12

3.        Even if foregoing issues are resolved in Appellant’s favor, the federal and
          state exclusionary rules do not require suppression because police relied on
          binding law authorizing the search at the time it was conducted.

          In Cole, PD-0077-15 (granted Apr. 22, 2015), this Court also granted review to

decide whether the remedy of suppression under the federal and state (T EX. C ODE

C RIM. P ROC. art. 38.23) exclusionary rules, which are intended to deter police

misconduct, is appropriate when the blood draw was conducted pursuant to a

presumptively valid statute and case law interpreting it. Therefore, if the other issues

are resolved in Appellant’s favor, this Court should remand to the court of appeals to

decide, in the first instance, whether suppression is warranted. Alternatively, for the

reasons asserted in Cole, this Court should hold that the remedy of suppression is not

warranted.



     12
     Weems v. State, No. PD-0635-14 (granted Aug. 20, 2014; argued and submitted
Nov. 17, 2014), and Cole v. State, PD-0077-15 (granted Apr. 22, 2015), do not
implicate the repeat-offender provision.

                                            11
                             PRAYER FOR RELIEF

      WHEREFORE, the State of Texas prays that the Court of Criminal Appeals

grant review and reverse the decision of the court of appeals.



                                        Respectfully submitted,

                                        LISA C. McMINN
                                        State Prosecuting Attorney
                                        Bar I.D. No.13803300


                                        /s/ STACEY M. GOLDSTEIN
                                        Assistant State Prosecuting Attorney
                                        Bar I.D. No. 24031632


                                        P.O. Box 13046
                                        Austin, Texas 78711
                                        information@spa.texas.gov
                                        512-463-1660 (Telephone)
                                        512-463-5724 (Fax)




                                         12
                      CERTIFICATE OF COMPLIANCE

      The undersigned certifies that according to the WordPerfect word count tool this

document contains 2,372 words, exclusive of the items excepted by T EX. R. A PP. P.

9.4(i)(1).




                                       /s/ STACEY M. GOLDSTEIN
                                       Assistant State Prosecuting Attorney




                                         13
                         CERTIFICATE OF SERVICE

      The undersigned certifies that a copy of the State’s Petition for Discretionary

Review has been served on July 6, 2015, via certified electronic service provider to:

Hon. Allison Lindblade
600 59th Street, Suite 1001
P.O. Box 17254
Galveston, Texas 77551
allison.lindblade@co.galveston.tx.us

Hon. Mark W. Stevens
P.O. Box 8118
Galveston, Texas 77553
markwandstec@sbcglobal.net



                                       /s/ STACEY M. GOLDSTEIN
                                       Assistant State Prosecuting Attorney




                                         14
APPENDIX A
                                                  6 of 100 DOCUMENTS

                  JONATHAN ALBERT LEAL, Appellant v. THE STATE OF TEXAS, Appellee

                                                   NO. 14-13-00208-CR

                   COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

                                               2014 Tex. App. LEXIS 12286


                                     November 13, 2014, Dissenting Opinion Filed

NOTICE:      PUBLISH -- TEX. R. APP. P. 47.2(b).               the officer in this case had sufficient evidence to justify
                                                               the warrantless temporary detention of appellant. W ith
PRIO R HISTORY:         [*1] On Appeal from the 122nd          regard to appellant's second issue, we hold that the
District Court, Galveston County, Texas. Trial Court           intrusion [*2] into appellant's veins was an unreasonable
Cause No. 12CR0947.                                            warrantless search in violation of the Fourth Amendment.
                                                               W e therefore reverse the trial court's judgment and
                                                               remand to the trial court for a new trial consistent with
CO UNSEL: For Appellant:            M ark    W.    Stevens,    this opinion.
GALVESTON, TX.
                                                               I. F A C TS A ND P RO CED U R A L B A CKGROUN D
For Appellee: Allison Lindblade, GALVESTON, TX.
                                                                    Early in the morning of April 2, 2012, Jacob Hodges 1
                                                               was on patrol driving east in the right lane of W est M ain
JUDGES: Panel consists of Chief Justice Frost and
                                                               Street in League City, Galveston County, Texas. Hodges
Justices Donovan and Brown. (Frost, C.J., dissenting).
                                                               observed appellant approaching W est Main Street from
                                                               an apartment complex parking lot. Appellant was driving
OPINION BY: Marc W . Brown
                                                               a white sport utility vehicle (SUV) approaching from the
                                                               south at a high rate of speed. Immediately prior to turning
OPINION
                                                               onto W est Main Street, appellant applied his brakes. This
                                                               caused the SUV to visibly rock forward, compressing the
M AJORITY OPINION
                                                               front suspension. The front end of appellant's SUV
     Appellant Jonathan Albert Leal was stopped for            entered W est Main Street. Hodges had to slam on his
failing to yield the right of way. Appellant was arrested      brakes in order to avoid a collision.
on suspicion of driving while intoxicated (DW I) and,
over his explicit refusal, compelled by the arresting                  1 At the time of the events at issue, Hodges was
officer to submit to a warrantless intrusion into his veins.           a police officer with the League City Police
Appellant was convicted of felony DW I. See Tex. Penal                 Department. At the time of trial, Hodges was a
Code Ann. §§ 49.04, 49.09(b) (W est 2011 & Supp.                       special agent with the Drug Enforcement
2014).                                                                 Administration.
     Appellant presents this court with two issues for              As a result of this near collision, Hodges initiated a
review. The first issue is whether the traffic stop was        traffic stop. During the course of the traffic stop, Hodges
supported by reasonable suspicion. The second issue is         saw a [*3] bottle of rum behind the passenger's seat of
whether, under Missouri v. McNeely,        U.S.    , 133 S.    appellant's SUV. Hodges noticed that appellant's eyes
Ct. 1552, 185 L. Ed. 2d 696 (2013), and based solely on        were red and watery. He also noticed the faint odor of
the arresting officer's application of the repeat-offender     alcohol on appellant's breath. In response to Hodges's
provision of the implied-consent statute, see Tex. Transp.     questioning, appellant admitted to drinking three mixed
Code Ann. § 724.012(b)(3)(B) (W est 2011), the State was       drinks. Hodges administered a battery of standardized
justified in obtaining a blood sample from appellant's         field sobriety tests. Based on appellant's performance on
veins without a warrant.                                       the sobriety tests and Hodges's personal observations,
                                                               Hodges concluded that appellant was under the influence
    W ith regard to appellant's first issue, we hold that
                                                               of alcohol. Hodges arrested appellant and transported him
to the League City jail.                                       II. S TA N DA R D   OF   R EVIEW
     At the jail, Hodges gave appellant the requisite               A trial court's denial of a motion to suppress and a
statutory warning regarding the implied-consent statute        trial court's denial of a motion for new trial are both
and the consequences of refusing to submit to the taking       reviewed under the abuse of discretion standard.
of a blood or breath specimen. See Tex. Transp. Code           Okonkwo v. State, 398 S.W.3d 689, 694 (Tex. Crim. App.
Ann. § 724.015 (W est Supp. 2014). The warning was             2013); Ex parte Moore, 395 S.W.3d 152, 158 (Tex. Crim.
given orally and in writing. After receiving the statutory     App. 2013). A trial court abuses its discretion if no
warning, appellant refused to submit to the taking of both     reasonable view of the record could support its ruling.
a blood and a breath specimen.2 Hodges then reviewed           Okonkwo, 398 S.W.3d at 694. W e view the evidence in
appellant's criminal history and discovered that appellant     the light most favorable to the trial court's ruling. Id.;
had two prior DW I convictions. Per the implied-consent        Moore, 395 S.W.3d at 158. At a hearing on the motion,
statute, Hodges was required to obtain a specimen of           the trial court is the sole judge of witness credibility and
appellant's blood. See Tex. Transp. Code Ann. §                the weight given to witness testimony. Okonkwo, 398
724.012(b)(3)(B). Hodges transported appellant to Clear        S.W.3d at 694; Moore, 395 S.W.3d at 158. W e must
[*4]    Lake Regional Hospital where a nurse drew              afford [*6] almost total deference to the trial court's
appellant's blood. According to Hodges's offense report,       findings of historical facts as well as mixed questions of
appellant was "very uncooperative" at the hospital; three      law and fact that turn on an evaluation of credibility and
people had to hold appellant down while the nurse took         demeanor. Okonkwo, 398 S.W.3d at 694; Abney v. State,
his blood. Hodges did not obtain a search warrant to           394 S.W.3d 542, 547 (Tex. Crim. App. 2013). W hen the
draw appellant's blood.                                        trial court does not make explicit findings of fact, we
                                                               assume the trial court made implicit findings of fact
       2 W hile the written refusal in the record denotes      supported by the record. Okonkwo, 398 S.W.3d at 694;
       only a refusal to submit a breath specimen, the         Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App.
       testimony at trial in response to the State's           2005).
       questioning clearly demonstrates that appellant
                                                                    W e review de novo (1) questions of law based on
       refused to submit samples of both breath and
                                                               undisputed facts and (2) mixed questions of law and fact
       blood.
                                                               that do not turn on an evaluation of credibility and
     Appellant was indicted for operating a motor vehicle      demeanor. Jones v. State, 437 S.W.3d 536, 538 (Tex.
in a public place while intoxicated. See Tex. Penal Code       App.--Texarkana 2014, pet. filed); see Oles v. State, 993
Ann. § 49.04(a). The indictment alleged two prior DW I         S.W.2d 103, 106 (Tex. Crim. App. 1999); Guzman v.
convictions. Appellant stipulated to the validity of the       State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).
two prior convictions. Appellant filed a motion to             Additionally, we review de novo the trial court's
suppress challenging the legality of the traffic stop. After   application of the law of search and seizure to the trial
conducting a hearing, the trial court denied the motion to     court's express or implied determination of historical
suppress.                                                      facts. Shepherd v. State, 273 S.W.3d 681, 684 (Tex. Crim.
                                                               App. 2008). Finally, we review de novo indisputable
     The case was tried before a jury. Appellant's blood
                                                               evidence contained in a video recording. State v. Duran,
alcohol content, which was nearly three times the legal
                                                               396 S.W.3d 563, 570-71 (Tex. Crim. App. 2013); see
limit, was admitted into evidence. The jury found
                                                               Carmouche v. State, 10 S.W.3d 323, 332 (Tex. Crim. App.
appellant guilty of the charged offense, and the trial court
                                                               2000).
assessed punishment at eight years' confinement. The
sentence was suspended and appellant [*5] was placed
                                                               III. D ISC U SSIO N
on community supervision.
                                                                    W e begin our discussion with a general overview of
     The trial court's judgment was signed on February
                                                               the Fourth Amendment. W e then analyze whether Hodges
15, 2013. Appellant filed his notice of appeal on the
                                                               had reasonable suspicion that appellant committed the
same day. On March 8, 2013, appellant filed a motion for
                                                               traffic violation of failing to yield the right of way.
new trial, asserting various grounds not pertinent to this
                                                               Finally, we analyze whether the warrantless intrusion into
appeal. On April 22, 2013, five days after the Supreme
                                                               appellant's veins was justified under an exception to the
Court decided McNeely, appellant filed a supplemental
                                                               Fourth Amendment's warrant requirement.
motion for new trial in which he challenged the validity
of the warrantless blood draw under McNeely. The trial
                                                               A. The Fourth Amendment
court held a hearing on appellant's motion for new trial
and ultimately denied the motion. On appeal, appellant              The Fourth Amendment provides: "The right of the
challenges (1) the legality of the traffic stop and (2) the    people to be secure in their persons, houses, papers, [*7]
legality of the warrantless blood draw.                        and effects, against unreasonable searches and seizures,
                                                               shall not be violated, and no W arrants shall issue, but
upon probable cause, supported by Oath or affirmation,         private road or driveway shall yield the right-of-way to a
and particularly describing the place to be searched, and      vehicle approaching on the highway to be entered." Tex.
the persons or things to be seized." U.S. Const. amend.        Transp. Code Ann. § 545.155 (W est 2011). The
IV. The ultimate touchstone of the Fourth Amendment is         undisputed evidence showed the following: o Hodges was
reasonableness. Riley v. California,    U.S. , , 134 S.        driving eastbound in the right lane of W est Main Street.
Ct. 2473, 2482, 189 L. Ed. 2d 430 (2014).
Reasonableness generally requires the obtaining of a                      o Appellant was driving through a
judicial warrant. Id. A warrantless search is reasonable              parking lot at a high rate of speed.
only if it falls within a specific exception to the Fourth
                                                                          o A p p e l l a n t 's t r a j e c t o r y   was
Amendment's warrant requirement. Id.
                                                                      perpendicular to that of Hodges.
     A defendant who alleges a search or seizure in
                                                                         o Appellant was approaching W est
violation of the Fourth Amendment must produce some
                                                                      Main Street from the south.
evidence that rebuts the presumption of proper police
conduct. Amador v. State, 275 S.W.3d 872, 878 (Tex.                       o Appellant's SUV stopped suddenly,
Crim. App. 2009). To satisfy this burden, the defendant               causing its weight to visibly shift forward
must establish that the search or seizure occurred without            and its front suspension to compress.
a warrant. Id. Once the defendant makes this showing,
                                                                          o The front end of appellant's SUV
the State must prove that the search or seizure was
                                                                      entered Hodges's lane.
conducted pursuant to a warrant or was reasonable. Id.
Here, the State seized and searched appellant without a                   o Hodges had to slam on his brakes in
warrant. Therefore, we must determine whether the                     order to avoid colliding with the SUV.
warrantless temporary detention of appellant was
reasonable and, if so, whether the warrantless intrusion
into appellant's veins was reasonable.
                                                                    Based on the totality of these circumstances, we
B. The traffic stop was reasonable.                            conclude that Hodges had reasonable suspicion that
                                                               appellant committed the traffic violation of failing to
     The [*8]      warrantless temporary detention of          yield the right of way. The record indicates that appellant
appellant was reasonable. A warrantless temporary              did not yield the right of way to Hodges. Specifically,
detention, such as the traffic stop in this case, is lawful    appellant allowed the front end of his SUV to enter the
when the officer has reasonable suspicion to believe that      highway from the apartment complex's driveway when
an individual is violating the law. Ford, 158 S.W.3d at        Hodges was approaching on the highway to be entered,
492. Reasonable suspicion exists if the officer has            namely W est Main Street. See id.; see, e.g., Thomas v.
specific articulable facts that, when combined with            State, 336 S.W.3d 703, 708-09 (Tex. App.--Houston [1st
rational inferences from those facts, would lead him to        Dist.] 2010, pet. ref'd) (traffic stop for failing to yield
reasonably suspect that a person has engaged, is               right [*10] of way was justified when defendant's abrupt
engaging, or soon will be engaging in criminal activity.       turn forced officer to apply brakes in order to avoid a
Abney, 394 S.W.3d at 548. This objective standard              collision).
disregards the officer's subjective intent and looks solely
at whether an objective basis for the detention exists.            The trial court did not err in denying appellant's
Ford, 158 S.W.3d at 492. A reasonable-suspicion                motion to suppress. Appellant's first issue is overruled.
determination is made by considering the totality of the
circumstances at the time of the detention and must be         C. The State's drawing of appellant's blood without a
based on commonsense judgments and inferences about            warrant was not reasonable because the State failed to
human behavior. Illinois v. Wardlow, 528 U.S. 119, 125,        establish a recognized exception to the Fourth
120 S. Ct. 673, 145 L. Ed. 2d 570 (2000); State v.             Amendment's warrant requirement.
Woodard, 341 S.W.3d 404, 412 (Tex. Crim. App. 2011).                The State's drawing of appellant's blood without a
     In this case, Hodges testified that he stopped            warrant was not reasonable. The State failed to establish a
appellant for failing to yield the right of way. In order to   recognized exception to the Fourth Amendment's warrant
satisfy its burden, the State was required to show that        requirement.3 A blood draw conducted at the direction of
Hodges had a reasonable suspicion that appellant               the police is a search subject to the reasonableness
violated section 545.155 of the Texas Transportation           requirement of the Fourth Amendment. Schmerber v.
Code by failing to yield the right of way. See Abney, 394      California, 384 U.S. 757, 767, 86 S. Ct. 1826, 16 L. Ed.
S.W.3d at 548.                                                 2d 908 (1966). A warrantless search of the person is
                                                               unreasonable unless it falls within a recognized exception
    Section 545.155 provides that "[a]n operator about to      to the warrant requirement. McNeely, 133 S. Ct. at 1558.
enter or cross a highway from an alley, building, [*9] or
Voluntary consent to search and exigent circumstances         new trial, the State acknowledged that, under McNeely,
are among the recognized exceptions. McGee v. State,          "it is not a per se exception to the general warrant
105 S.W.3d 609, 615 (Tex. Crim. App. 2003). W e are           requirement . . . that alcohol naturally dissipates in the
persuaded by the reasoning of our sister courts of appeal     blood stream." The State argues, however, that exigent
and join them in concluding that the repeat-offender          circumstances did justify the warrantless blood draw in
provision of the implied-consent statute, see Tex. Transp.    this case. The State avers that two hours elapsed from the
Code Ann. § 724.012(b)(3)(B), is not one of the               time of the traffic stop to the time that appellant's blood
recognized exceptions to the warrant requirement. State       was drawn. The State contends that the additional time
v. Anderson, S.W.3d , , No. 09-13-00400-CR, 2014              needed to acquire a warrant threatened the destruction of
Tex. App. LEXIS 11151, 2014 WL 5033262, at *15 (Tex.          the evidence of appellant's blood alcohol content. The
App.--Beaumont Oct. 8, 2014, no pet. h.); Aviles v. State,    State's position is untenable because it is not supported by
   S.W.3d     ,   , No. 04-11-00877-CR, 2014 Tex. App.        evidence in the record.
LEXIS 8508, 2014 WL 3843756, at *3 (Tex. App.--San
                                                                   The exigent circumstances exception applies "when
Antonio Aug. 6, 2014, pet. filed) [*11] ; Forsyth v. State,
                                                              the exigencies of the situation make the needs of law
438 S.W.3d 216, 223 (Tex. App.--Eastland 2014, pet.
                                                              enforcement so compelling that a warrantless search is
filed); Sutherland v. State, 436 S.W.3d 28, 41 (Tex. App.-
                                                              objectively reasonable under the Fourth Amendment."
-Amarillo 2014, pet. filed); Weems v. State, 434 S.W.3d
                                                              McNeely, 133 S. Ct. at 1558 (quoting Kentucky v. King,
655, 665 (Tex. App.--San Antonio 2014, pet. granted);
                                                              U.S.    ,    , 131 S. Ct. 1849, 1856, 179 L. Ed. 2d 865
Reeder v. State, 428 S.W.3d 924, 930 (Tex. App.--
                                                              (2011)). The State has a compelling need to prevent the
Texarkana 2014, pet. granted); State v. Villarreal,
                                                              imminent destruction of evidence. Id. A law enforcement
S.W.3d      ,    , No. 13-13-00253-CR, 2014 Tex. App.
                                                              officer may conduct a search without a warrant if, under
LEXIS 645, 2014 WL 1257150, at *11 (Tex. App.--
                                                              the circumstances, the delay necessary to obtain a warrant
Corpus Christi Jan. 23, 2014, pet. granted).
                                                              threatens the destruction of evidence. Schmerber, 384
                                                              U.S. at 770.
       3 To the extent appellant asks us to decide the
       constitutionality of the implied-consent statute,           W e must look to [*13]          the totality of the
       we decline his invitation. "The constitutionality      circumstances as set forth in the record to determine
       of a statute is not to be determined in any case       whether the officer faced an exigency that justified acting
       unless such a determination is absolutely              without a warrant. McNeely, 133 S. Ct. at 1559. However,
       necessary to decide the case in which the issue is     "in order to establish a plausible justification for an
       raised." State ex rel. Lykos v. Fine, 330 S.W.3d       exigent circumstances exception to the warrant
       904, 909 (Tex. Crim. App. 2011) (quoting Briggs        requirement, the State ha[s] the burden to show facts and
       v. State, 740 S.W.2d 803, 806-07 (Tex. Crim. App.      circumstances beyond the passage of time and the
       1987)). Because section 724.012(b)(3)(B) is not a      resulting dissipation of alcohol in the bloodstream."
       recognized exception to the Fourth Amendment's         Douds v. State, 434 S.W.3d 842, 851 (Tex. App.--Houston
       warrant requirement and because the State did not      [14th Dist.] 2014, pet. granted) (en banc, op. on reh'g).
       satisfy its burden to establish a recognized
                                                                   Here, the State has not shown or articulated any facts
       exception to the warrant requirement, we
                                                              supporting the existence of an exigency beyond the
       conclude that appellant's Fourth Amendment
                                                              passage of time and the resulting dissipation of alcohol in
       rights were violated. Therefore, it is not
                                                              the bloodstream. The record shows that Hodges initiated
       "absolutely necessary" for us to decide whether
                                                              the traffic stop just after 2:00 a.m. on April 2, 2012.
       section 724.012(b)(3)(B) is unconstitutional,
                                                              Hodges arrested appellant at 2:46 a.m. The nurse drew
       either facially or as applied to appellant.
                                                              appellant's blood at 4:20 a.m. Although Hodges testified
    Therefore, the State was required to prove that the       that he was aware that he could obtain a blood-draw
warrantless intrusion into appellant's veins was justified    warrant, the record contains no evidence that he
by exigent circumstances or valid consent.4                   attempted to acquire such a warrant. Additionally, the
                                                              record contains no evidence regarding what Hodges knew
       4    The State has not argued that any other           about the time needed to obtain a warrant. The State
       recognized exception to the warrant requirement        presented no evidence that further delay to obtain a
       applies to this case.                                  warrant threatened the destruction of evidence. [*14] The
                                                              only evidence of an exigency in this case is the two hours
1. The drawing of appellant's blood without a warrant         that elapsed from the time of the traffic stop to the time of
was not justified by exigent circum stances.                  the warrantless blood draw and the resulting dissipation
                                                              of alcohol in appellant's blood stream.
    The State has not met its burden to establish the
exigent circumstances exception [*12] to the warrant              Even though findings of historical fact supported by
requirement. At the hearing on appellant's motion for         the record must be implied in favor of the trial court's
ruling, whether those facts meet the legal standard of               se rule of irrevocable consent by comparing a
exigent circumstances is a legal question we review de               warrantless blood draw to an administrative
novo. Douds, 434 S.W.3d at 855. The findings that can                search at an airport is unconvincing.
be implied on this record do not support the conclusion
                                                                  The State has not met its burden to establish that
that the delay necessary to obtain a warrant threatened
                                                              exigent circumstances justified the warrantless search into
the imminent destruction of the evidence of appellant's
                                                              appellant's veins.
blood alcohol content.
      Nor does the record support the dissent's position      2. The drawing of appellant's blood without a warrant
that appellant posed a risk similar to that of a suspected    was not justified by valid consent.
terrorist in a highly crowded airport. Here, appellant was
                                                                   The State next contends, "It is well settled that one of
in police custody and no longer a threat to anyone on the
                                                              the established exceptions to a warrant requirement is a
public roadways. This is in marked contrast to the would-
                                                              search pursuant to consent." The State equates statutory
be "air pirate" in the "zone of danger." The warrantless
                                                              implied consent with the recognized consent exception to
search in this case was for evidence of intoxication, not
                                                              the Fourth Amendment's warrant requirement. The State's
for weapons or implements of mass destruction that
                                                              position is that a suspect with two prior DW I convictions
could still be used. Further, the dissent advances an
                                                              has irrevocably consented to a mandatory warrantless
argument that was not advanced by the [*15] State at
                                                              blood draw. W e disagree and conclude that, under the
trial or on appeal. 5
                                                              totality of the circumstances in the record, the State has
                                                              not met its burden to establish that the warrantless search
       5 W e also note that courts deciding the validity
                                                              into appellant's veins was justified by valid consent.6
       of searches at airports after the 9/11 terrorist
       attacks have eschewed the notion that searches at
                                                                     6 Like the First Court of Appeals in Perez v.
       airports are justified by consent. See United
                                                                     State, we do not consider the constitutionality of
       States v. Aukai, 497 F.3d 955, 960-61 (9th Cir.
                                                                     the implied-consent statute. See   S.W.3d , ,
       2007) (en banc) (overruling prior cases that
                                                                     No. 01-12-01001-CR, 2014 Tex. App. LEXIS
       predicated the reasonableness of airport screening
                                                                     2681, *16, 2014 WL 943126, at *7 (Tex. App.--
       on ongoing consent or irrevocable implied
                                                                     Houston [1st Dist.] Mar. 11, 2014, no pet.); supra
       consent; "[G]iven that consent is not required, it
                                                                     note 3. Rather, we must decide an issue not
       makes little sense to predicate the reasonableness
                                                                     addressed in Perez--whether [*17] such implied
       of an administrative airport screening search on
                                                                     consent can be revoked.
       an irrevocable implied consent theory."); see also
       Corbett v. Transp. Sec. Admin., 767 F.3d 1171,
                                                              a. Consent under the Fourth Am endm ent
       1180 (11th Cir. 2014) (describing airport search
       as administrative search rather than consent               Under the Fourth Amendment, a warrantless search
       search); George v. Rehiel, 738 F.3d 562, 575 (3d       authorized by consent is wholly valid. Schneckloth v.
       Cir. 2013) (noting that airport screening was          Bustamonte, 412 U.S. 218, 222, 93 S. Ct. 2041, 36 L. Ed.
       permissible under administrative search doctrine);     2d 854 (1973). Like searches justified by consent in other
       Elec. Privacy Info. Ctr. v. Dep't of Homeland          contexts, "consent to a blood test must be free and
       Sec., 653 F.3d 1, 10, 397 U.S. App. D.C. 313           voluntary, and it must not be the result of physical or
       (D.C. Cir. 2011) (screening passengers at an           psychological pressures brought to bear by law
       airport is an administrative search). In fact, Texas   enforcement." Fienen v. State, 390 S.W.3d 328, 333 (Tex.
       courts have held that travelers who attempt to         Crim. App. 2012). A person's consent is not voluntary if
       board a commercial aircraft or check their             his will was overborne and his capacity for self-
       baggage lack standing to challenge the search          determination was critically impaired. See Schneckloth,
       because they do not have a reasonable                  412 U.S. at 225-26; Fienen, 390 S.W.3d at 333.
       expectation of privacy. E.g., Kjolhede v. State,
                                                                   Moreover, a person is free to limit the scope of or
       333 S.W.3d 631, 633-34 (Tex. App.--Dallas 2009,
                                                              even revoke the consent that was given. Florida v.
       pet. ref'd); Turner v. State, 132 S.W.3d 504, 507-
                                                              Jimeno, 500 U.S. 248, 252, 111 S. Ct. 1801, 114 L. Ed. 2d
       08 (Tex. App.--Houston [1st Dist.] 2004, pet.
                                                              297 (1991); Valtierra v. State, 310 S.W.3d 442, 450 (Tex.
       ref'd); see also Florida v. J.L., 529 U.S. 266, 274,
                                                              Crim. App. 2010). If a person withdraws his or her
       120 S. Ct. 1375, 146 L. Ed. 2d 254 (2000)
                                                              consent before the search is completed, the police cannot
       (reasonable expectation of privacy is diminished
                                                              continue searching based on the prior consent. See, e.g.,
       at airports). In a post-9/11 world, a person's
                                                              Mason v. Pulliam, 557 F.2d 426, 429 (5th Cir. 1977)
       submission to administrative airport screening has
                                                              (citizen's withdrawal of consent and reinvocation of
       little to do with his or her consent, implied [*16]
                                                              Fourth Amendment rights did not affect validity of IRS
       or otherwise. The dissent's effort to justify a per
                                                              agent's actions prior to receiving notice of citizen's
withdrawal of consent). A suspect's ability to withdraw         within the state, to consent to blood alcohol content
his or her consent is particularly important in cases like      testing if they are arrested or detained on suspicion of
this one that involve a compelled intrusion into the            drunk driving. McNeely, 133 S. Ct. at 1566. Implied-
human body. See McNeely, 133 S. Ct. at 1565 ("W e have          consent statutes do not generally authorize searches;
never retreated . . . from our recognition that any             instead, they authorize [*20]        the police to require
compelled intrusion into the human body implicates              motorists to choose between giving actual consent or
significant, constitutionally [*18]    protected privacy        withdrawing their "implied consent" and suffering the
interests.").                                                   consequences. State v. Padley, 2014 WI App 65, 354 Wis.
                                                                2d 545, 849 N.W.2d 867, 880 (Wis. Ct. App. 2014); see
     It is the State's burden to show valid consent by clear
                                                                McNeely, 133 S. Ct. at 1566. A suspect who consents
and convincing evidence. Fienen, 390 S.W.3d at 333.
                                                                when presented with the choice has given actual consent,
The question of whether a person's consent was valid is
                                                                but a suspect who refuses to consent withdraws the
one of fact to be determined from the totality of the
                                                                statutorily "im plied consent" and accep ts the
circumstances and from the point of view of the
                                                                consequences of that choice. Padley, 849 N.W.2d at 879.
objectively reasonable person. Id. "The standard for
                                                                In this respect, choosing to submit a breath or blood
measuring the scope of a suspect's consent under the
                                                                specimen rather than accepting the consequences of
Fourth Amendment is that of 'objective' reasonableness--
                                                                refusal is valid consent under the Fourth Amendment. See
what would the typical reasonable person have
                                                                McGautha v. California, 402 U.S. 183, 213, 91 S. Ct.
understood by the exchange between the officer and the
                                                                1454, 28 L. Ed. 2d 711 (1971) ("The criminal process . . .
suspect?" Jimeno, 500 U.S. at 251. One of the factors in
                                                                is replete with situations requiring 'the making of difficult
determining the validity of a search based on consent is
                                                                judgments' as to which course to follow. Although a
whether the suspect had the option to withdraw his or her
                                                                defendant may have a right . . . to follow whichever
consent. Flores v. State, 172 S.W.3d 742, 749 (Tex. App.-
                                                                course he chooses, the Constitution does not . . . always
-Houston [14th Dist.] 2005, no pet.).
                                                                forbid him to choose." (citations omitted)), vacated on
     An officer's invocation of section 724.012(b)(3)(B)        other grounds sub nom, Crampton v. Ohio, 408 U.S. 941,
is not alone sufficient to establish the existence of valid     92 S. Ct. 2873, 33 L. Ed. 2d 765 (1972); Cantu v. State,
consent justifying a warrantless blood draw. In McNeely,        738 S.W.2d 249, 256 (Tex. Crim. App. 1987) ("No
the Supreme Court rejected the state's argument that            constitutional violation is presented by the fact of a
"whenever an officer has probable cause to believe an           difficult decision for a defendant.").
individual has been driving under the influence of
                                                                     The Texas implied-consent statutory scheme is
alcohol, exigent circumstances will necessarily exist
                                                                similar to the general model. In Texas, "implied consent"
because [blood alcohol content] evidence is inherently
                                                                means that a person arrested for DW I is deemed to have
evanescent." McNeely, 133 S. Ct. at 1560. The Court
                                                                consented to the taking of one or more specimens of the
held that the dissipation of alcohol in the blood does not
                                                                person's breath or blood for analysis to determine [*21]
categorically support a finding [*19] of exigency and
                                                                alcohol concentration. Tex. Transp. Code Ann. § 724.011
reiterated that "[w]hether a warrantless blood test of a
                                                                (W est 2011). A specimen can only be taken if the person
drunk-driving suspect is reasonable must be determined
                                                                agrees to an officer's request for one, unless the
case by case based on the totality of the circumstances."
                                                                provisions of 724.012(b) apply. Id. § 724.013 (W est
Id. at 1563. Here, the State's position is similar to that of
                                                                2011). If a person refuses an officer's request to submit a
the state in McNeely: whenever a person has been
                                                                specimen, the Department of Public Safety must
arrested for DW I and is a repeat offender, consent will
                                                                immediately suspend the person's driver's license. Id. §
necessarily exist because section 724.012(b)(3)(B) says it
                                                                724.035 (W est 2011). At issue in this case is section
does. Like the McNeely Court, we reject the State's
                                                                724.012(b)(3)(B) of the Transportation Code, the repeat-
argument in favor of a categorical rule supporting a
                                                                offender provision of the implied-consent statute. This
finding of irrevocable consent and instead reiterate that
                                                                provision requires an officer to take a specimen of a
whether a warrantless blood test of a drunk-driving
                                                                person's breath or blood if (1) the officer arrests the
suspect is reasonable under the Fourth Amendment must
                                                                person for DW I, (2) the person refuses the officer's
be determined case by case based on the totality of the
                                                                request to submit a specimen voluntarily, and (3) at the
circumstances. Therefore, in this case, we must look at
                                                                time of arrest, the officer possesses or receives reliable
the facts and circumstances beyond application of section
                                                                information from a credible source that the person has
724.012(b)(3)(B) to determine whether the search into
                                                                been previously convicted of DW I on two or more prior
appellant's veins was justified by valid consent.
                                                                occasions. Id. § 724.012(b)(3)(B).
b. Im plied Consent
                                                                c. Analysis
    G enerally, im p lied -c o n se n t sta tu te s re q uire
                                                                    Applying the Fourth Amendment standards, the
motorists, as a condition of operating a motor vehicle
                                                                applicable provisions of Texas's implied-consent statute,
and the appropriate standard of review, we conclude the                        physical force to compel submission." Id. at 333 (quoting
State has not carried its burden to prove the existence of                     Forte v. State, 759 S.W.2d 128, 138 (Tex. Crim. App.
valid consent in this case. W e acknowledge that the                           1988), overruled on other grounds, McCambridge v.
record supports a finding that the statutory requirements                      State, 778 S.W.2d 70 (Tex. Crim. App. 1989) (internal
for a mandatory blood draw were [*22] met. Appellant                           quotations omitted)). Although the repeat-offender
was arrested for DW I and was deemed by the implied-                           provision of the implied-consent statute was not at issue
consent statute to have consented to submitting a                              in the Fienen court's analysis, see 390 S.W.3d at 333, the
specimen of his breath or blood. Because appellant had                         Supreme Court's recent abolition of categorical rules
been convicted of DW I on two prior occasions and                              justifying exceptions to the warrant requirement
refused to submit a blood specimen voluntarily, Hodges                         persuades us that the use of physical force to compel
was required by the mandatory blood draw provision of                          submission, particularly in the face of physical resistance,
the implied-consent statute to obtain a specimen of                            is equally forbidden when the repeat-offender provision is
appellant's breath or blood. Furthermore, appellant                            at issue in the court's analysis, as it is in this case. See
stipulated to the prior convictions at trial and does not                      McNeely, 133 S. Ct. at 1563; see also Aviles v. Texas,
contest that Hodges complied with the statute by                               U.S. , , 134 S. Ct. 902, 902, 187 L. Ed. 2d 767 (2014)
requiring him to submit to the taking of a blood                               (remanding, for consideration in light of McNeely,
specimen.                                                                      factually similar case involving repeat-offender provision
                                                                               of implied-consent law); Tex. Dept. of Pub. Safety v.
     The record supports a finding that appellant
                                                                               Watson, 945 S.W.2d 262, 266 (Tex. App.--Houston [1st
effectively withdrew his implied consent. Hodges
                                                                               Dist.] 1997, no pet.) ("[A] person cannot be forced to
testified that appellant refused consent to the blood draw.
                                                                               breathe into a breathalyzer or have a needle with syringe
After discovering appellant's two prior DW I convictions,
                                                                               forcibly poked into his arm."). W ere it otherwise, we
Hodges took appellant to the hospital for the mandatory
                                                                               would be creating a per se exception to the warrant
blood draw. At this point, the record indicates that
                                                                               requirement for DW I repeat offenders. As the United
appellant physically resisted to the taking of his blood.
                                                                               States Supreme Court made clear in M cNeely, this we
Specifically, three people had to hold appellant down so
                                                                               cannot do.7
the nurse could complete the blood-draw procedure. The
explicit refusal coupled with the physical refusal to
                                                                                      7 W e acknowledge, as does the dissent, that "the
submit to the taking of a blood specimen effectively
                                                                                      permissibility of a [*25] particular practice 'is
withdrew [*23] appellant's prior implied consent. See
                                                                                      judged by balancing its intrusion on the
Jimeno, 500 U.S. at 251 (scope of consent is determined
                                                                                      individual's Fourth Amendment interests against
by what a reasonable person would have understood by
                                                                                      its promotion of legitimate governmental
the exchange between the officer and the suspect).
                                                                                      interests.'" Skinner v. Ry. Labor Execs. Ass'n, 489
Despite this withdrawal of consent and without obtaining
                                                                                      U.S. 602, 619, 109 S. Ct. 1402, 103 L. Ed. 2d 639
a warrant, Hodges forced appellant to submit a blood
                                                                                      (1989) (quoting Delaware v. Prouse, 440 U.S.
specimen. Hodges's only justification for mandating the
                                                                                      648, 654, 99 S. Ct. 1391, 59 L. Ed. 2d 660
warrantless blood draw was his application of section
                                                                                      (1979)). However, in this case, the balance of the
724.012(b)(3)(B).
                                                                                      State's interests in eradicating the drunken driving
        The totality of the circumstances in this case                                problem against the individual's constitutionally-
demonstrates that appellant withdrew his consent prior to                             protected interest in his or her bodily integrity
the warrantless blood draw. In light of appellant's                                   undermines the dissent's position in favor of
withdrawal of consent and because the State's only                                    irrevocable consent based solely on the
j u s t i f i c a t i o n f o r c o n d u c t i n g th e w a r r a n tle s s          individual's status as a repeat offender.
nonconsensual blood draw was the repeat-offender
                                                                                           The drunken driving problem is a national
provision of the implied-consent statute, we conclude the
                                                                                      epidemic, and the State has an important interest
State has not met its burden to establish the existence of
                                                                                      in eradicating it. See McNeely, 133 S. Ct. at 1565.
valid consent justifying the warrantless blood draw.
                                                                                      The State also has an interest in protecting law-
     In reaching this conclusion, we recognize the                                    abiding drivers from drunk drivers. But when
apparent inconsistency between deemed consent under                                   balanced against the serious bodily intrusion
the implied-consent statute and a person's absolute right                             necessitated by a warrantless mandatory blood
to refuse a test. See Fienen, 390 S.W.3d at 332-33. The                               draw, we conclude that the State's interests are
Court of Criminal Appeals has explained this                                          sufficiently served by the provision in the
inconsistency: "[C]onsent being implied by law, a driver                              T ransportation Code mandating immediate
may not legally refuse. A driver, however, can physically                             suspension of a person's driver's license when the
refuse [*24] to submit, and the implied-consent law,                                  person refuses to submit to a blood draw, or, in
recognizing that practical reality, forbids the use of                                the case of a person without a license, issuance of
       an order denying the issuance of a license to that      precludes an officer from first obtaining a warrant.
       person. See Tex. Transp. Code Ann. § 724.035(a)         See, e.g., Ala. Code §§ 32-5-192, 32-5-200
       (W est 2011). Furthermore, in this case, appellant      (W estlaw); Alaska Stat. Ann. § 28.35.032
       was in custody. [*26] He no longer posed a              (W estlaw); Ariz. Rev. Stat. Ann. §§ 28-1321, 28-
       threat to public safety. And nothing in the record      1388 (W estlaw); Ark. Code Ann. §§ 5-65-202, 5-
       suggests that Hodges was prevented from                 65-205 (W estlaw); [*28] Cal. Veh. Code §§
       obtaining a warrant.                                    13353, 23612 (W estlaw); Colo. Rev. Stat. Ann. §§
                                                               42-4-1301, 42-4-1301.1 (W estlaw); Conn. Gen.
     W e are not persuaded by the State's argument that,
                                                               Stat. Ann. §§ 14-227b, 14-227c (W estlaw)
by citing favorably to implied-consent statutes
                                                               (amended 2014); Del. Code Ann. tit. 21, §§ 2740,
throughout the country, the McNeely Court endorsed the
                                                               2741 (W estlaw); Fla. Stat. Ann. § 316.1932
use of implied-consent statutes as a means to justify the
                                                               (W estlaw); Ga. Code Ann. § 40-5-67.1 (W estlaw);
warrantless intrusion into a nonconsenting suspect's
                                                               Haw. Rev. Stat. §§ 291E-15, 291E-21 (W estlaw);
veins. The Court's statement that implied-consent laws
                                                               Idaho Code Ann. § 18-8002 (W estlaw); 625 Ill.
"impose significant consequences when a motorist
                                                               Com p. Stat. Ann. 5/11-501.1, 5/11-501.6
withdraws consent" presupposes that a motorist has the
                                                               (W estlaw); Ind. Code Ann. §§ 9-30-6-1, 9-30-6-3,
right to withdraw his or her consent. McNeely, 133 S. Ct.
                                                               9-30-6-7 (W estlaw); Iowa Code Ann. §§ 321J.6,
at 1566; see Forsyth, 438 S.W.3d at 222 ("The Court's
                                                               321J.9, 321J.10A (W estlaw); Kan. Stat. Ann. §§
language does suggest . . . that an accused can withdraw
                                                               8-1001, 8-1002 (W estlaw); Ky. Rev. Stat. Ann. §§
his or her consent to submit a specimen for testing in
                                                               189A.103, 189A.105, 189A.107 (W estlaw); La.
direct contradiction to the State's argument that implied
                                                               Rev. Stat. Ann. §§ 32:661, 32:666 (W estlaw); Me.
consent is irrevocable."); see also Tex. Transp. Code
                                                               Rev. Stat. Ann. tit. 29-A, § 2521 (W estlaw); Md.
Ann. § 724.035(a) (W est 2011) (providing for immediate
                                                               Code Transp. Ann. § 16-205.1 (W estlaw); Mass.
suspension of license upon a person's refusal to submit to
                                                               Gen. Laws ch. 90, § 24 (W estlaw); M ich. Comp.
the taking of a specimen).8 Furthermore, while "a
                                                               Laws. Ann. §§ 257.625c, 257.625d (W estlaw);
majority of States either place significant restrictions on
                                                               Minn. Stat. Ann. §§ 169A.51, 169A.52 (W estlaw);
when the police officers may obtain a blood sample
                                                               Miss. Code Ann. §§ 63-11-5, 63-11-8, 63-11-21
despite a suspect's refusal (often limiting testing to cases
                                                               (W estlaw); M o. Rev. Stat. §§ 577.033, 577.041
involving an accident resulting in death or serious bodily
                                                               (W estlaw) (amended 2014); Mont. Code Ann. §
injury) [*27] or prohibit nonconsensual blood tests
                                                               61-8-402 (W estlaw); Neb. Rev. Stat. Ann. §§ 60-
altogether," McNeely, 133 S. Ct. at 1566, Texas is the
                                                               6,197, 60-6,210, 60-498.01 (W estlaw); Nev. Rev.
only state that purports to allow police officers to
                                                               Stat. Ann. §§ 484C.150, 484C.160 (W estlaw)
forcibly draw a DW I suspect's blood without a warrant
                                                               (permitting use of "reasonable force" under
based solely on the suspect's status as a repeat offender. 9
                                                               certain circumstances when a person refuses);
Lastly, the State's position fails to acknowledge that an
                                                               N.H. Rev. Stat. Ann. § 265-A:14 (W estlaw); N.J.
officer who obtains a blood-draw warrant can still
                                                               Stat. Ann. §§ 39:4-50.2, 39:4-50.4a (W estlaw);
comply with the "shall require" language of section
                                                               N.M. Stat. Ann. § 66-8-111 (W estlaw); N.Y. Veh.
724.012(b) while at the same time not running afoul of
                                                               &amp; Traf. Laws § 1194 (W estlaw); N.C. Gen.
the Fourth Amendment. See McGruder v. State,
                                                               Stat. Ann. § 20-16.2 (W estlaw); N.D. Cent. Code
S.W.3d      ,    , No. 10-13-00109-CR, 2014 Tex. App.
                                                               Ann. §§ 39:20-01, 39:20-01.1, 39:20-04
LEXIS 9022, *8, 2014 WL 3973089, at *3 (Tex. App.--
                                                               (W estlaw); Ohio Rev. Code Ann. § 4511.191
Waco Aug. 14, 2014, pet. filed) ("[S]ection 724.012(b)
                                                               (W estlaw) (allowing officer to employ "whatever
does not require a blood or breath specimen be taken
                                                               reasonable means are necessary" to ensure
contrary to the Fourth Amendment; that is, without a
                                                               submission; providing officers with criminal and
warrant or without a recognized exception to the warrant
                                                               civil immunity); Okla. Stat. Ann. tit. 47, § 753
requirement.")
                                                               (W estlaw); Or. Rev. Stat. Ann. §§ 813.095,
                                                               813.100 (W estlaw); 75 Pa. Cons. Stat. Ann. §
       8     Justice Sotomayor's discussion of implied-
                                                               1547 (W estlaw); R.I. Gen. Laws Ann. § 31-27-2.1
       consent laws, which the State is using as the basis
                                                               (W estlaw) (amended 2014); S.C. Code Ann. §§
       for its argument, was not joined by a majority of
                                                               56-5-2950, 56-5-2951 (W estlaw) (amended by
       the Court. See Forsyth, 438 S.W.3d at 222 n.3.
                                                               2014 S.C. Act 158); S.D. Codified Laws §§ 32-23-
       9 W e do note that Nevada's and Ohio's implied-
                                                               1, 32-23-10 (W estlaw) (officer can "require"
       consent schemes seem to allow officers to use
                                                               suspect arrested for DW I to submit); Tenn. Code
       "reasonable force" or "whatever reasonable
                                                               Ann. § 55-10-406 (W estlaw); Utah Code Ann. §§
       means are necessary" to obtain samples from a
                                                               41-6a-520, 41-6a-524 (W estlaw); Vt. Stat. Ann.
       person who refuses. Like the Texas statute,
                                                               tit. 23, § 1202 (W estlaw); Va. Code Ann. §§ 18.2-
       however, neither the Nevada nor the Ohio statute
                                                               268.2, 18.2-268.3 (W estlaw) (refusal is a separate
       crime); Wash. Rev. Code Ann. § 46.20.308                    CR, 2014 Tex. App. LEXIS 8054, 2014 WL
       (W estlaw); W. Va. Code Ann. § 17C-5-7                      3697917, at *2 (Tex. App.--Houston [1st Dist.]
       (W estlaw); Wis. Stat. Ann. § 343.305 (W estlaw);           July 24, 2014, no pet.) (mem. op., not designated
       Wyo. Stat. Ann. § 31-6-102 (W estlaw).                      for publication) (same).
     Nor are we persuaded by the State's reliance on             Additionally, Beeman is distinguishable. The officer
dictum in Beeman v. State describing the implied-consent    in Beeman arrested the defendant for DW I and obtained a
statute as "ano ther metho d o f co nd uc ting a            warrant to draw his blood. 86 S.W.3d at 614. The
constitutionally valid [warrantless] [*29] search." 86      defendant, who refused a breath test and objected to the
S.W.3d 613, 615 (Tex. Crim. App. 2002). First, a statute    blood draw, argued that the search was invalid because it
cannot authorize what the Constitution forbids. State v.    violated the implied-consent statute--i.e., he revoked his
Mosely, 348 S.W.3d 435, 442 (Tex. App.--Austin 2011,        consent. Id. at 615. The court held that "once a valid
pet. ref'd).                                                search warrant is obtained[,] . . . consent, implied or
                                                            explicit, becomes moot." Id. at 616. Here, in contrast,
     Second, the San Antonio Court of Appeals relied on
                                                            Hodges never obtained a warrant and relied solely on the
the Beeman dictum in Aviles v. State, 385 S.W.3d 110
                                                            repeat-offender provision of the implied-consent statute
(Tex. App.--San Antonio 2012), vacated, 134 S. Ct. 902,
                                                            to justify the forced blood draw. The totality of the
187 L. Ed. 2d 767 (2014), a factually similar case
                                                            circumstances surrounding appellant's consent, and his
involving section 724.012(b)(3)(B). There, the San
                                                            effective withdrawal of consent, is therefore not moot; to
Antonio court held that section 724.012(b)(3)(B) permits
                                                            the contrary, it is of utmost [*31] importance in assessing
an officer to take a blood specimen from a DW I suspect
                                                            the reasonableness of the search under the Fourth
without a warrant if the officer has information that the
                                                            Amendment. For these reasons, we conclude that the
suspect has been previously convicted of DW I on at least
                                                            State's reliance on Beeman for the proposition that section
two prior occasions. Aviles, 385 S.W.3d at 116. The
                                                            724.012(b)(3)(B) permits the warrantless blood draw
Supreme Court vacated the San Antonio court's judgment
                                                            from a DW I suspect who has effectively withdrawn his
and remanded the case for consideration in light of
                                                            implied consent is not persuasive.
McNeely. Aviles, 134 S. Ct. at 902. The San Antonio
court recently issued a new opinion in Aviles, rejecting         Finally, the dissent suggests that appellant is similar
its earlier reliance on the Beeman dictum and holding       to the defendant in United States v. Knights, 534 U.S.
that section 724.012(b)(3)(B) is not a permissible          112, 122 S. Ct. 587, 151 L. Ed. 2d 497 (2001). The facts
exception to the warrant requirement. 2014 Tex. App.        of this case, however, are distinguishable. In Knights, the
LEXIS 8508, 2014 WL 3843756, at *3. 1 0 The Supreme         defendant was on probation and agreed in writing to
Court's remand of Aviles suggests that section              submit his person, property, place of residence, vehicle,
724.012(b)(3)(B) cannot serve as the sole basis for         and personal effects to search at any time, with or without
mandating a warrantless blood draw when the totality of     a search warrant, warrant of arrest, or reasonable cause by
the circumstances surrounding the blood draw indicate a     any probation officer or law enforcement officer. 534
lack of valid consent.                                      U.S. at 114. Here, in contrast, the record contains no
                                                            evidence to suggest that appellant was on probation when
       10      See also Forsyth, 438 S.W.3d at 221          the offense occurred, or that he agreed in writing to
       (declining to rely on Beeman for proposition that    submit to a warrantless search by probation officials or
       implied consent is a valid exception to the          anyone else. Appellant was not searched as a condition of
       warrant requirement); Sutherland, 436 S.W.3d at      probation. Furthermore, searches such as the one in
       35-36 (discussing Beeman in the context of the       Knights are viewed in a different context because
       remand of Aviles); Weems, 434 S.W.3d at 660-61       probation (and parole) is considered an extension of
       (same); Reeder, 428 S.W.3d at 928 (noting the        incarceration. See id. at 119 ("Inherent in the very nature
       Supreme Court's remand [*30] of Aviles casts         of probation [*32] is that probationers do not enjoy the
       "grave doubt" on the reasoning of Beeman);           absolute liberty to which every citizen is entitled."
       Villarreal, S.W.3d at , 2014 Tex. App. LEXIS         (internal quotations omitted)). Nothing in the record
       645 at *20 2014 WL 1257150, at *11 (noting the       before us suggests that appellant was subject to some sort
       Beeman court recognized that implied-consent         of "conditional liberty" as contemplated in Knights. Nor
       laws do not give police officers anything more       did the State assert at trial or on appeal that the search of
       than what the Constitution already gives them).      appellant was based on such an exception.
       But see Perez, 2014 Tex. App. LEXIS 2681, 2014
                                                                 In sum, appellant withdrew his implied consent when
       WL 943126, at *6-*7 (relying solely on Beeman
                                                            he refused to submit to the blood draw, and the State, in
       dictum in a section 724.012(b)(3)(B) case to
                                                            spite of appellant's physical resistance, forcibly poked a
       justify warrantless blood draw; providing no
                                                            syringe into his arm and drew his blood anyway. Given
       discussion of or citation to cases rejecting
                                                            the absence of a warrant, the absence of exigent
       Beeman dictum); Kay v. State, No. 01-13-00595-
circumstances, and the absence of valid consent, we            DISSENT
conclude the State did not establish that the
nonconsensual warrantless intrusion into appellant's           DISSENTING OPINION
veins was reasonable under the Fourth Amendment or
                                                                    The Fourth Amendment to the United States
that a recognized exception to the Fourth Amendment's
                                                               Constitution provides that "[t]he right of the people to be
warrant requirement applied to this case. The trial court
                                                               secure in their persons ... against unreasonable searches
erred when it overruled appellant's motion for new trial.
                                                               and seizures, shall not be violated, and no warrants shall
                                                               issue" unless the warrants meet certain requirements.1 The
3. The trial court's error in overruling appellant's
                                                               Supreme Court of the United States has determined that,
m otion for new trial was harm ful.
                                                               where a search is undertaken by law-enforcement
      Having concluded that the trial court erred, we next     officials to discover evidence of criminal wrongdoing, the
determine whether the trial court's error resulted in harm.    Fourth Amendment generally requires the obtaining of a
In the face of constitutional [*33] error, we must reverse     judicial warrant.2 In the absence of a warrant, a search is
the judgment of conviction unless we determine beyond          reasonable under the Fourth Amendment only if it falls
a reasonable doubt that the error did not contribute to the    within a specific exception to this general warrant
conviction or punishment. Tex. R. App. P. 44.2(a);             requirement.3 One such exception is a search conducted
Holmes v. State, 323 S.W.3d 163, 173-74 (Tex. Crim.            pursuant to consent.4
App. 2010) (op. on reh'g). In this case, the blood
evidence seized from appellant was inculpatory and was                 1 U.S. Const. amend. IV; [*35] see also Tex.
used against appellant at trial. Specifically, evidence of             Const. art. I, § 9.
appellant's blood alcohol content, which exceeded the                  2 See Riley v. California, U.S. , , 134 S. Ct.
legal limit by nearly a factor of three, was presented at              2473, 2482, 189 L.Ed.2d 430 (2014).
trial. W e cannot determine beyond a reasonable doubt                  3 See id.
that the State's use of the evidence of appellant's blood              4 See Schneckloth v. Bustamonte, 412 U.S. 218,
alcohol content did not contribute to appellant's                      219, 93 S.Ct. 2041, 2043-44, 36 L.Ed.2d 854
conviction. See Holmes, 323 S.W.3d at 174. This                        (1973).
indicates that the trial court's erroneous ruling was indeed
                                                                    Today, this court faces as issues of first impression
a contributing factor in appellant's conviction and
                                                               (1) whether section 724.012(b)(3)(B) of Texas's implied-
punishment. Therefore, the error was harmful.
                                                               consent statute falls within the consent exception to the
     Appellant's second issue is sustained.                    warrant requirement and (2) whether consent under this
                                                               particular provision is revocable. More specifically, we
IV. C O N C LU SIO N                                           must decide whether this subsection of the statute
                                                               provides a basis for concluding that appellant Jonathan
     Because the traffic stop in this case was reasonable,
                                                               Albert Leal irrevocably consented to the blood draw. If
the trial court did not err when it denied appellant's
                                                               the trial court's ruling is supported by the record, we are
motion to suppress. W e overrule appellant's first issue.
                                                               to affirm that ruling if there is any valid theory of law that
W ith regard to appellant's second issue, the State did not
                                                               supports the ruling, even if the theory was not presented
carry its burden to prove a recognized exception to the
                                                               to the trial court and even if the theory is not advanced by
Fourth Amendment's warrant requirement. W e sustain
                                                               the prevailing party on appeal.5
appellant's second issue and hold that the drawing of
appellant's [*34] blood without a search warrant violated
                                                                       5 Alford v. State, 400 S.W.3d 924, 928 n.2 (Tex.
the Fourth Amendment. The trial court erred in denying
                                                                       Crim. App. 2013); Miller v. State, 393 S.W.3d
appellant's motion for new trial. Because the evidence of
                                                                       255, 263 (Tex. Crim. App. 2012).
appellant's blood alcohol content was inculpatory, we
conclude it contributed to his guilt. See id. W e therefore         The ultimate touchstone of the Fourth Amendment is
reverse the trial court's judgment and remand to the trial     reasonableness.6 W e are to examine the totality of the
court for a new trial consistent with this opinion.            circumstances to determine whether a search is
                                                               reasonable.7 The Fourth Amendment's protection against
     /s/ Marc W . Brown
                                                               unreasonable searches and seizures requires courts
     Justice                                                   reviewing searches to balance opposing interests and
                                                               determine the reasonableness of a particular search in a
   Panel consists of Chief Justice Frost and Justices
                                                               particular context.8 W hether a search is reasonable
Donovan and Brown. (Frost, C.J., dissenting).
                                                               depends upon the degree to which it intrudes upon an
 Publish -- T EX . R. A PP . P. 47.2(b).
                                                               individual's privacy and the degree to which [*36] it is
                                                               needed to promote legitimate government interests.9
DISSENT BY: Kem Thompson Frost
                                                               Thus, context is crucial in assessing reasonableness.
                                                                     696 (2013).
       6 Riley, U.S. at , 134 S. Ct. at 2482.                        14 Maj. op. at     .
       7 Samson v. California, 547 U.S. 843, 848, 126
                                                                   Consent exists because individuals are deemed to
       S.Ct. 2193, 2197, 165 L.Ed.2d 250 (2006).
                                                              know the law.1 5 This is especially true for recidivists. By
       8 See Scott v. Harris, 550 U.S. 372, 383, 127
                                                              nature, they are reoffenders who, after being convicted,
       S.Ct. 1769, 1778, 167 L.Ed.2d 686 (2007).
                                                              break the same law again. In crafting many of our state's
       9 Samson, 547 U.S. at 848, 126 S.Ct. at 2197.
                                                              statutory schemes, Texas lawmakers recognize the
                                                              distinct risk posed by recidivists and identify specific
Validity of Implied Consent to Blood Draw by DW I
                                                              consequences for reoffenders.1 6 Section 724.012(b)(3)(B)
Repeat Offenders
                                                              provides that, for a particular class of DW I reoffenders,
     In assessing the validity of the implied consent in      taking the action of driving on public [*38] roadways is
today's case, the issue is whether police reasonably could    consent to a blood draw.1 7 Accordingly, police reasonably
assume that appellant, who twice before had been              can assume that a DW I Repeat Offender who uses public
convicted of driving while intoxicated (D W I),               roadways and is charged with knowledge of laws
irrevocably consented to a blood draw 10 through his          governing such use, consents to a blood draw in the event
conduct in operating a motor vehicle on Texas's public        a police officer has reasonable grounds to believe that the
roadways. Texas Transporta tion C o d e sections              DW I Repeat Offender is driving while intoxicated. Just as
724.012(b)(3)(B) and 724.011 effectively advise               it is reasonable for police officers to assume that the
individuals with two or more prior DW I convictions           category of individuals who speak the words, "Yes, I give
("DW I Repeat Offenders") that police will interpret a        you consent to search," in fact, have consented, a police
DW I Repeat Offender's conduct in operating a motor           officer reasonably can interpret the conduct of a DW I
vehicle as giving consent to a blood draw in the event of     Repeat Offender in driving a vehicle on the public street
a new DW I arrest. 1 1                                        as giving consent for the blood draw.1 8

       10      Transportation Code Section 724.012                   15    See Tex. Penal Code Ann. § 8.03 (W est
       provides that a police officer "shall require the             2014); Johnson v. State, 423 S.W.3d 385, 388 n.2
       taking of a specimen of breath or blood." Tex.                (Tex. Crim. App. 2014).
       Transp. Code Ann. § 724.012(b) (W est 2014).                  16    See, e.g. Tex. Penal Code § 12.42 (W est
       Under this statute, an officer may take a breath              2014).
       sample rather than a blood sample.                            17 Tex. Transp. Code Ann. § 724.012(b)(3)(B).
       11     Tex. Transp. Code Ann. §§ 724.011,                     This opinion does not address whether an
       724.012(b)(3)(B) (W est 2014).                                individual who drives on a public street has
                                                                     consented to a search based of any other section
     Implied consent, if otherwise valid, is sufficient to
                                                                     of Texas Transportation Code Section 724.012.
support the consent exception.1 2 The majority, however,
                                                                     18 As the majority acknowledges, the reality that
rejects implied consent and suggests that despite the
                                                                     a driver must make a tough choice, between
statute's plain statement of the consequences flowing
                                                                     driving and knowing that his conduct in driving
from a DW I arrest for [*37] a DW I Repeat Offender, a
                                                                     will be interpreted as consent, does not render the
police officer cannot interpret a DW I Repeat Offender's
                                                                     consent invalid.
conduct in operating a motor vehicle as consent to a
blood draw because such an interpretation would
                                                              Irrevocability of Consent
establish a categorical rule and categorical rules are
prohibited by the Supreme Court's opinion in Missouri v.           The majority suggests that, in any event, appellant
McNeely.1 3 The majority says that "whenever a person         effectively revoked any consent for the blood draw. But,
has been arrested for DW I and is a repeat offender,          under Texas's [*39] statutory scheme, consent by a DW I
co nsent will necessarily exist because section               Repeat Offender cannot be revoked.1 9 The majority states
724.012(b)(3)(B) says it does." 1 4 This oversimplification   that there is a categorical rule that an individual's consent
of how this provision of the implied-consent statute          to a search is limited in scope and that such consent is
operates skews the focus away from the important              always subject to the right of withdrawal.2 0 The Supreme
contextual considerations that should drive the court's       Court has found otherwise. Revocation is not always an
analysis. Analyzing consent in context leads to the           option. In various contexts, the "right of withdrawal" has
opposite conclusion.                                          been found unreasonable and unavailable.21 Drawing from
                                                              this body of jurisprudence and the intent and purpose of
       12 M cGee v. State, 105 S.W.3d 609, 615 (Tex.          the Texas Legislature in creating this particular provision
       Crim. App. 2003).                                      of the implied-consent statute, it makes more sense to
       13 See maj. op. at   ; Missouri v. McNeely,            conclude that revocation of implied consent is not an
       U.S. , , 133 S. Ct. 1552, 1561, 185 L. Ed. 2d          option for a DW I Repeat Offender.
                                                                extend parole only because it is able to condition it upon
       19 See Tex. Transp. Code Ann. § 724.011, et              compliance with certain requirements.2 7 " 2 8 Significantly,
       seq.                                                     the high court reasoned that the State is not required to
       20 See Mason v. Pulliam, 557 F.2d 426, 428               "ignore the reality of recidivism or suppress its interests
       (5th Cir. 1977).                                         in 'protecting potential victims of criminal enterprise' for
       21 See U.S. v. Spriggs, 30 F.3d 132, 132 (4th            fear of running afoul of the Fourth Amendment." 2 9
       Cir. 1994), cert. denied, 513 U.S. 1159, 115 S. Ct.
       1120, 130 L. Ed. 2d 1083 (1995) (holding that                    22 See U.S. v. Knights, 534 U.S. at 116, 122
       visitor to prison could not revoke consent to                    S.Ct. at 590.
       search); U.S. v. Knights, 534 U.S. 112, 116, 122                 23 The Supreme Court of the United States also
       S.Ct. 587, 590, 151 L.Ed.2d 497 (2001) (holding                  has upheld searches of parolees based on statutory
       that probationers may not revoke consent to                      scheme as opposed to the parolee's signature on a
       searches); U.S. v. Herzbrun, 723 F.2d 773, 775                   form. See Samson v. California, 547 U.S. 843,
       (11th Cir. 1984) (holding that airline passengers                857, 126 S. Ct. 2193, 165 L. Ed. 2d 250 (2006).
       may not revoke consent to search); U.S. v.                       24 Knights, 534 U.S. at 116, 122 S.Ct. at 590.
       Haynie, 637 F.2d 227, 230 (4th Cir. 1980)                        The Court of Criminal Appeals of Texas has held
       (same).                                                          that consent given by a probationer in accepting a
                                                                        probation condition is invalid under the Fourth
     Consent affects the balance of interests between an
                                                                        Amendment and Article 1, Section 9 of the Texas
individual and the government.2 2 The balance can tip for
                                                                        Constitution. See Tamez v. State, 534 S.W.2d 686,
or against revocation of consent, depending on the
                                                                        690-92 (Tex. Crim. App. 1976). U.S. v. Knights
circumstances. For example, in the context of searches of
                                                                        overruled Tamez with respect to the Fourth
probationers' homes, the Supreme Court, in United [*40]
                                                                        Amendment. See Townes v. State, 293 S.W.3d 227,
States v. Knights, relied on a probationer's signed form 2 3
                                                                        230-31 (Tex. App.--San Antonio 2009, no pet.).
to enforce the probationer's agreement to "submit to a
                                                                        The Court of Criminal Appeals has held that
search 'by any probation officer or law enforcement
                                                                        Article 1, Section 9 of the Texas Constitution does
officer.'" 2 4 In concluding that the probationer's motion to
                                                                        not provide any greater right than the Fourth
suppress evidence from such a search should be denied,
                                                                        Amendment. See Hulit v. State, 982 S.W.2d 431,
the Supreme Court reasoned that:
                                                                        437 (Tex. Crim. App. 1998). Even if the Texas
                                                                        Constitution did provide a greater right, the DW I
          The judge who sentenced Knights to
                                                                        search is based upon probable cause unlike the
       probation determined that it was necessary
                                                                        search probation condition determined to be too
       to condition the probation on Knights'
                                                                        broad in Tamez. See Tamez, 534 S.W.2d at 692.
       acceptance of the search provision. It was
                                                                        25 See id [*42] .
       reasonable to conclude that the search
                                                                        26 See id.
       condition would further the two primary
                                                                        27      Similarly, for DW I Repeat Offenders the
       goals of probation--rehabilitation and
                                                                        State of Texas has conditioned the privilege of
       protecting society from future criminal
                                                                        driving upon implied consent to a blood draw. See
       violations. The probation order clearly
                                                                        T e x . T ra n s p . C o d e A n n . § § 7 2 4 .0 1 1 ,
       expressed the search condition and
                                                                        724.012(b)(3)(B).
       Knights was unambiguously informed of
                                                                        28 See Samson, 547 U.S. at 850, 126 S.Ct. at
       it. T he p ro b a tio n co nd itio n th us
                                                                        2198.
       significantly d im inish e d K n ights'
                                                                        29 Id. at 849, 2198.
       reasonable expectation of privacy. 534
       U.S. at 119-20, 122 S.Ct. at 591-92.                          The Supreme Court's consideration of the "reality of
                                                                recidivism" as key to the government's interest in
                                                                protecting potential victims of crime has obvious
In weighing the government's interest in Knights, the           application in the context of the DW I Repeat Offender,
high court, recognizing the context, noted that the             who poses a grave risk to public safety on roadways.
probationer is more likely than the ordinary citizen to         Courts have observed that "an automobile in the hands of
violate the law.25 In light of this reality, the Supreme        a drunk driver can be just as lethal a weapon as a gun" 3 0
Court essentially determined that the State, to further its     and have "repeatedly lamented" the "increasing slaughter
goal of protecting the public from past offenders, may          on our highways. . . now reach[ing] the astounding
condition the granting of [*41] a privilege upon the past       figures only heard of on the battlefield." 3 1 The high court's
offender's irrevocable consent to a search.2 6 And, in the      determination that the State is not required to suppress its
context of parolees, the Supreme Court found it                 interests in protecting potential victims of crime out of
significant that "in most cases, the State is willing to        concern of stepping on the Fourth Amendment is
particularly relevant and compelling in the repeat-           majority cites cases holding that today airport searches
offender drunk-driving context.                               are administrative and no consent is needed at all. 3 9 The
                                                              majority argues that it is unpersuasive to attempt to
       30 U.S. v. Tristan-Madrigal, 601 F.3d 629, 633-        justify a rule of irrevocable consent by comparing a
       34 (6th Cir. 2010) (internal quotations omitted).      warrantless blood draw to an administrative search. But,
       31 Michigan Dept. of State Police v. Sitz, 496         the danger factor that has driven courts to conclude
       U.S. 444, 451, 110 S. Ct. 2481, 2486, 110 L. Ed.       administrative searches are reasonable in the context of
       2d 412 (1990) (internal quotations omitted).           perilous and high-risk circumstances only further
                                                              supports the position that preventing a DW I Repeat
     Similar public-safety concerns have prompted courts
                                                              Offender from revoking [*45] consent to a blood draw is
to fashion special exceptions to the warrant requirement
                                                              also reasonable under the Fourth Amendment. Though
and to disallow revocation of implied consent given in
                                                              administrative searches have no requirement of consent
exchange for a privilege. For example, in considering
                                                              or individualized suspicion, section 724.012(b)(3)(B)
consent [*43] given in exchange for the benefit of air
                                                              requires an officer to have made a valid arrest of a DW I
travel, courts have disallowed revocation, holding that
                                                              Repeat Offender before the officer obtains a blood draw.
officials are not required to ignore the attendant dangers
                                                              If administrative searches at airports are reasonable under
of air piracy. The Eleventh Circuit concluded, even
                                                              the Fourth Amendment, then it is also reasonable to
before the increased concern following the infamous
                                                              enforce this particular provision of the implied-consent
terrorist attacks on America on September 11, 2001, that
                                                              statute in the narrow context of DW I Repeat Offenders
to keep the airways safe from "the intense danger of air
                                                              exercising the privilege of driving on public roadways.
piracy," airports are "critical zones" in which special
Fourth Amendment considerations apply.32 Courts have
                                                                      38 See maj. op. at .
determined that an individual who begins the process of
                                                                      39 See George v. Rehiel, 738 F.3d 562, 575 (3d
airport screening may not avoid the search by asking to
                                                                      Cir. 2013); Elec. Privacy Info. Ctr. v. U.S. Dep't
leave.3 3 Noting that air travel is a privilege, the Fourth
                                                                      of Homeland Sec., 653 F.3d 1, 10, 397 U.S. App.
Circuit has reasoned that it may be conditioned upon
                                                                      D.C. 313 (D.C. Cir. 2011); United States v. Aukai,
irrevocable consent to a search.3 4 In balancing the
                                                                      497 F.3d 955, 960-61 (9th Cir. 2007) (en banc).
government's interest in disallowing revocation of
consent, courts have placed special focus on the statutory         Today's case is similar to the special cases involving
scheme and purpose, noting that allowing an individual        criminal recidivism and zones of danger. Yet, it presents
to leave after the individual has reached the point of        a unique circumstance requiring review of a search in the
embarkation "greatly damages the prophylactic purpose         multi-faceted context of (1) a recidivist (2) who has
of the search procedure." 3 5 Importantly, "the very fact     engaged in dangerous conduct on the roadways, (3)
that a safe exit is available ... would, by diminishing the   consented to a narrow search (blood draw or breath
risks, encourage attempts." 3 6 Courts have recognized the    specimen in the event of another DW I arrest) in exchange
necessity for restricting [*44] the right to revoke consent   for the privilege of being allowed to drive in spite of that
after this crucial point, noting that the problem with        past dangerous conduct, (4) accepted the benefits of the
allowing a "safe exit" is that "established search            conditioned privilege by driving on a public roadway, and
procedures are perhaps more valuable by what they             (5) is arrested for engaging in the same highly dangerous
discourage than what they discover." 3 7                      conduct again. Confronted [*46] with this extraordinary
                                                              public endangerment and the critical need to deter the
       32 See Herzbrun, 723 F.2d at 775.                      fatal activity, the Texas Legislature enacted a series of
       33 See id.                                             laws,4 0 specifically focusing its efforts on the severe threat
       34 Haynie, 637 F.2d at 230.                            posed by recidivists who fail to observe the prohibition
       35 See United States v. Skipwith, 482 F.2d 1272,       against drunk driving even after being convicted of the
       1277, 1281 (5th Cir. 1973) (Aldrich, dissenting)       offense at least twice before. Because this class of
       (the majority agreed with this part of the             offenders represents a particular, known, and heightened
       dissenting opinion, holding Skipwith's "right-to-      threat to public safety, the Texas Legislature sought to
       leave" argument lacked merit).                         deter DW I Repeat Offenders from getting behind the
       36 Id.                                                 wheel and again endangering the public by driving in an
       37 See id.                                             impaired state. The legislative solution to the recidivist
                                                              threat was to provide a framework that conditioned the
     The majority notes that since the events of
                                                              driving privilege on consent to police officers obtaining
September 11, federal circuit courts have overruled prior
                                                              blood or breath samples from DW I Repeat Offenders who
cases that predicated the reasonableness of airport
                                                              are suspected of driving while intoxicated and to obtain
screening on irrevocable implied consent and determined
                                                              the samples in the absence of a search warrant.4 1 This
that the Fourth Amendment requires even less protection
                                                              provision of the statute is narrowly tailored, specific to
of the individual in dangerous contexts.3 8 Indeed, the
the search, and is limited in scope, effectively serving the      revoke consent at that point, then the prophylactic
purpose and meeting the requirements of a warrant.4 2             purpose of the search procedure prescribed by the Texas
                                                                  statute would be frustrated.4 8 Likewise, the deterrent
        40 See Tex. Transp. Code Section 724.001, et              effect of the statutory scheme would be thwarted as the
        seq. (W est 2014).                                        DW I Repeat Offender would be able to revoke consent
        41 See Beeman v. State, 86 S.W.3d 613, 616                for the blood draw even after accepting the conditioned
        (Tex. Crim. App. 2002).                                   privilege of driving. The State of Texas is not required to
        42 See New York v. Burger, 482 U.S. 691, 703,             ignore either the grave public danger of drunk driving or
        107 S. Ct. 2636, 2644, 96 L. Ed. 2d 601 (1987).           the reality of recidivism in DW I Repeat Offenders.
      Section 724.012(b)(3)(B) of Texas's implied-consent
                                                                         48 See Skipwith, 482 F.2d at 1281.
law creates a compact that is akin to the compact [*47]
enforced against probationers and parolees. The majority               The majority concludes that the DW I Repeat [*49]
argues that, unlike probationers and parolees, DW I               Offender can revoke consent after being arrested for
Repeat Offenders do not have conditional liberty                  another DW I offense. According to the majority,
interests. But, driving is a privilege, not a right.43 Just as    reasonableness requires the State to allow the DW I
it is reasonable to enforce the agreements of parolees and        Repeat Offender's revocation. Rather than examine the
probationers that diminish their liberty interests, it is         search in the context of the State's keen interest in
reasonable to enforce agreements of DW I Repeat                   curbing fatal recidivist activity and regulating that
Offenders to consent to blood draws on condition of               activity within a recognized danger zone for the purpose
exercising driving privileges.                                    of protecting the public from threat of death or injury, the
                                                                  majority relies on cases in home-search contexts that
        43 See Tex. Transp. Code Ann. § 724.035 (W est            have little application to the circumstances presented by
        2014).                                                    today's case.4 9
     In exchange for the privilege of driving on public
                                                                         49 See maj. op. at     .
roads in Texas, the DW I Repeat Offender irrevocably
consents to have blood drawn in the event that the DW I                 In the context of drunk driving and DW I Repeat
Repeat Offender is arrested yet again for driving while           Offenders, reasonableness does not dictate that revocation
intoxicated.4 4 Under this compact, the DW I Repeat               of consent is always an option, as the majority concludes.
Offender faces a difficult choice:4 5 forego driving a motor      It is not an option in the context of air piracy, where the
vehicle on Texas roadways or consent to a blood draw in           State has an interest in thwarting and deterring activity
the event of another DW I arrest.4 6 The latter choice does       that endangers the public. Is drunk driving by DWI
not include the option of revocation.4 7 It is significant that   Repeat Offenders any less risky or dangerous to human
the Texas Legislature did not outright deny the driving           life? Does a DWI Repeat Offender on a public roadway
privilege to DW I Repeat Offenders, but instead gave              create any less of a "zone of danger" than one suspected
these individuals the option of enjoying the privilege            of air piracy?
subject to the condition. Appellant's acceptance of the
                                                                       Just as the need to protect the public in the airways
benefits [*48] of this conditioned privilege supports the
                                                                  makes it reasonable to prevent individuals from revoking
irrevocability of his consent. Once appellant, a DW I
                                                                  [*50] their consent to a search before boarding a plane,
Repeat Offender, elected the condition attached to the
                                                                  the need to protect the public on roadways makes it
driving privilege by turning the key to start the vehicle's
                                                                  reasonable to prevent DW I Repeat Offenders from
ignition, it was too late to revoke consent. At that point,
                                                                  revoking consent to a search after being arrested for a
as a DW I Repeat Offender, appellant had accepted the
                                                                  new DW I offense. Allowing a DW I Repeat Offender who
risk of a blood draw should he be arrested for driving
                                                                  embarks on a public roadway to revoke consent to a
while intoxicated.
                                                                  search once arrested for DW I provides the "safe exit" the
                                                                  Supreme Court condemned in the air piracy context. 5 0 Just
        44    See Tex. Transp. Code Ann. §§ 724.011;
                                                                  as allowing revocation in the airways context would
        724.012.
                                                                  frustrate the federal scheme, the "safe exit" the majority
        45 See McGautha v. California, 402 U.S. 183,
                                                                  creates today undermines Texas's ability to prosecute
        213, 91 S. Ct. 1454, 28 L. Ed. 2d 711 (1971).
                                                                  DW I Repeat Offenders who choose to drive drunk again.
        46 Tex. Transp. Code § 724.011.
        47 See generally, id. at § 724.011, et seq.
                                                                         50 See Skipwith, 482 F.2d at 1281.
    If a police officer suspects a DW I Repeat Offender
                                                                      The Texas Legislature has recognized the serious and
of driving while intoxicated, the officer shall arrange for
                                                                  pervasive threat posed by recidivists and has taken
a statutory blood draw or the collection of a breath
                                                                  focused action to address it in our state by imposing
specimen. W ere the DW I Repeat Offender entitled to
                                                                  conditions on DW I Repeat Offenders who, despite their
prior DW I convictions, are granted and accept the                   based upon the DW I Repeat Offender's
privilege of driving on Texas roadways. Both this                    voluntary choice to exercise, and accept
deterrence interest and the reality of recidivism among              the benefits of, a privilege (driving)
DW I Repeat Offenders are important factors in                       granted by the State on condition of
determining whether a search is reasonable under the                 consent to the search.
Fourth Amendment. 51

       51 See Knights, 534 U.S. at 116, 122 S.Ct. at          These limiting principles, coupled with the government's
       590, Samson, 547 U.S. at 850, 126 S.Ct. at 2198;       compelling interests in protecting the public from the
       See Skipwith, 482 F.2d at 1277, 1281.                  heightened risk of death or injury from recidivist drunk
                                                              drivers, make it reasonable to prevent a DW I Repeat
     In holding that the State may not rely upon the DW I
                                                              Offender arrested for drunk driving from revoking
Repeat Offender's statutory [*51] consent or enforce
                                                              consent to a statutory blood draw.5 3
section 724.012(b)(3)(B) of the implied-consent statute,
the majority does not properly account for the crucial
                                                                     52 See Maryland v. King, 133 S.Ct. 1958, 1970,
public-safety interest at stake in deterring DW I Repeat
                                                                     186 L.Ed.2d 1 (2013) (noting that limits of police
Offenders from drunk driving as a means of thwarting
                                                                     o ffic e r's d isc re tio n w e igh in fa v o r o f
the extraordinary threat resulting from this deadly
                                                                     constitutionality [*53] of search); Skinner v.
recidivist activity. These interests make it reasonable to
                                                                     Railway Labor Executives' Ass'n, 489 U.S. 602,
prevent a DW I Repeat Offender from withdrawing
                                                                     622-25, 109 S. Ct. 1402, 1416-17, 103 L. Ed. 2d
consent to a blood draw upon arrest for another DW I
                                                                     639 (1989) (noting that imposing a warrant
offense.
                                                                     requirement would add little assurance of
                                                                     certainty and regularity not already afforded by
Conclusion
                                                                     regulations).
     Today's case presents a combination of factors,                 53 See Bailey v. U.S., U.S. , 133 S.Ct. 1031,
compelling interests as well as limiting principles, that            1040, 185 L.Ed.2d 19 (2013) (noting the
make the irrevocability of consent to a blood draw under             importance of limiting principles).
section 724.012(b)(3)(B) reasonable in the context of a
                                                                   Notably, the First Court of Appeals has concluded
DW I Repeat Offender's arrest for a new DW I offense.
                                                              that "the warrantless taking of appellant's blood sample in
Though the state's public-safety interest is compelling,
                                                              compliance with Transportation Code section 724.012(b)
even that does not provide the government with a free
                                                              did not violate [the defendant's] Fourth Amendment rights
pass to conduct indiscriminate blood draws. There must
                                                              by requiring him to submit to a warrantless blood test
be limiting principles for the irrevocable statutory
                                                              without his consent."5 4 Though several other sister courts
consent to be reasonable and thus pass muster under the
                                                              of appeals have determined that consent under the
Fourth Amendment. The rationale for the rule of
                                                              implied-consent statute is either invalid or revocable, 5 5
irrevocability in this limited circumstance is grounded on
                                                              none of them addressed the public dangers associated
built-in statutory boundaries and restrictions that operate
                                                              with allowing revocation. None of them considered the
as a check on police power and a strong safeguard
                                                              State's strong deterrence interest or the conditional nature
against unwarranted government intrusion. [*52]
                                                              of the driving privilege granted to DW I Repeat
Summarized below, these boundaries, sewn into the
                                                              Offenders. None of them accounted for the reality of
fabric of the statute, provide the necessary measure of
                                                              recidivism among DW I Repeat Offenders. And, none of
protection that makes the irrevocability of consent under
                                                              them considered the built-in statutory checks and other
subsection (b)(3)(B) reasonable in this narrow context.
                                                              important limiting principles at work in this special
                                                              circumstance.
           o The search is authorized only after
       police have made a valid arrest based on
                                                                     54 Perez v. State, No.      S.W.3d , 2014 Tex.
       probable cause of a repeat offender in
                                                                     App. LEXIS 2681, 2014 WL 943126, at *7 (Tex.
       the danger zone.
                                                                     App.--Houston [1st Dist.] Mar. 11, 2014, no pet.).
            o The statutory provision implying                       55 See Weems v. State, 434 S.W.3d 655, 659-64
       consent and authorizing the search                            (Tex. App.--San Antonio 2014 pet. granted);
       effectively functions like a warrant,                         Reeder v. State, 428 S.W.3d 924, 929 (Tex. App.--
       tightly restricting the scope of the search                   Texarkana 2014, pet. granted); State v. Villarreal,
       by naming the single place to be searched                       S.W.3d , No. 13-13-00253-CR, 2014 Tex. App.
       and specifically identifying the single                       LEXIS 645, 2014 WL 1257150, at *10 (Tex. App.-
       thing to be seized. 5 2                                       -Corpus Christi Jan. 23, 2014, pet. granted); State
                                                                     v. Sutherland, 436 S.W.3d 28, 39-41 (Tex. App.--
             o The irrevocability of consent is
       Amarillo 2014, pet. filed); State v. Anderson,
                                                                /s/ Kem Thompson Frost
       S.W.3d , No. 09-13-00400-CR, 2014 Tex. App.
       LEXIS 11151, 2014 WL 5033262, at *8-11 (Tex.             Chief Justice
       App.--Beaumont Oct. 8, 2014, no pet. h.).
                                                                Panel consists of Chief Justice Frost, Justices
    This court should affirm rather than reverse the trial   Donovan and Brown. (Brown, J., majority).
[*54] court's judgment denying appellant's motion to
                                                                Publish--T EX . R. A PP . P. 47.2(b)
suppress the evidence obtained as a result of the blood
draw. Because it does not, I respectfully dissent.
APPENDIX B
                                                   1 of 5 DOCUMENTS

                 JONATHAN ALBERT LEAL, Appellant v. THE STATE OF TEXAS, Appellee

                                                   NO. 14-13-00208-CR

                  COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

                                             2015 Tex. App. LEXIS 6460


                       June 25, 2015, M ajority and Concurring Opinions on Remand Filed

NOTICE:      Publish -- TEX. R. APP. P. 47.2(b).              arguments, we do not address them again here. See
                                                              Keehn v. State, 245 S.W.3d 614, 614 n.1 (Tex. App.--Fort
PRIO R HISTORY:         [*1] On Appeal from the 122nd         Worth 2007), aff'd, 279 S.W.3d 330 (Tex. Crim. App.
District Court, Galveston County, Texas. Trial Court          2009); see, e.g., Weatherford v. State, 840 S.W.2d 727,
Cause No. 12CR0947.                                           728-29 (Tex. App.--Eastland 1992, pet. ref'd)
Leal v. State, 452 S.W.3d 14, 2014 Tex. App. LEXIS            (considering on remand only the issues explicitly raised
12286 (Tex. App. Houston 14th Dist., 2014)                    by Court of Criminal Appeals). W e therefore incorporate
                                                              our original opinion by reference.
                                                                    In order [*2] for a complaint to be presented on
C O U N SEL: For Appellant:       M ark   W.    Stevens,
                                                              appeal, a timely request, objection, or motion must have
GALVESTON, TX.
                                                              been made to the trial court stating the grounds for the
                                                              ruling with sufficient specificity to make the trial court
For State: Allison Lindblade, GALVESTON, TX.
                                                              aware of the complaint, and the trial court must have
                                                              expressly or implicitly ruled on the request, objection, or
JUDGES: Panel consists of Chief Justice Frost and
                                                              motion. Tex. R. App. P. 33.1(a)(1)(A). The complaining
Justices Donovan and Brown. (Frost, C.J., concurring).
                                                              party must have clearly conveyed to the trial court the
                                                              particular complaint raised on appeal, including the
OPINION BY: Marc W . Brown
                                                              precise and proper application of law as well as the
                                                              underlying rationale. Pena v. State, 285 S.W.3d 459, 463-
OPINION
                                                              64 (Tex. Crim. App. 2009). Error preservation does not
                                                              involve a hyper-technical or formalistic use of words or
M AJORITY OPINION ON REM AND
                                                              phrases; rather, straightforward communication in plain
     Appellant Jonathan Albert Leal appealed the trial        English is sufficient. Id. at 464. The party must let the
court's denial of his motion to suppress and motion for       trial judge know (1) what he wants; (2) why he thinks he
new trial. In our original opinion reversing the trial        is entitled to it; and (3) do so clearly enough for the judge
court's judgment, we held that the warrantless blood draw     to understand him at a time when the judge is in the
violated Leal's Fourth Amendment rights. Leal v. State,       proper position to do something about it. Id. W e consider
452 S.W.3d 14, 32 (Tex. App.--Houston [14th Dist.]            the context in which the complaint was made and the
2014), vacated and remanded, 456 S.W.3d 567 (Tex.             parties' shared understanding at that time. Id. A
Crim. App. 2015). On its own motion, the Court of             defendant who presents an argument to the trial judge in
Criminal Appeals granted review of our decision,              time for the judge to rule on it has preserved the issue for
vacated our judgment, and remanded the case to us to          appellate review. See Clarke v. State, 270 S.W.3d 573,
address only "whether appellant preserved his claim that      580 (Tex. Crim. App. 2008). [*3] "A trial court's ruling
the warrantless blood draw violated his Fourth                on a matter need not be expressly stated if its actions or
Amendment rights." Leal, 456 S.W.3d at 568. Although          other statements otherwise unquestionably indicate a
we implicitly held in our original opinion that Leal          ruling." Rey v. State, 897 S.W.2d 333, 336 (Tex. Crim.
preserved his claim, we now explicitly conclude and           App. 1995).
explain that he did so.
                                                                  Leal's claim was preserved when the trial court
    As a preliminary matter, because our original             implicitly overruled his amended motion to suppress.
opinion disposed of the merits of Leal's primary              Leal timely filed an amended motion to suppress
objecting to the warrantless blood draw on Fourth             filed. See Tex. R. App. P. 21.4(b). On April 26, 2013, at
Amendment grounds. See Porath v. State, 148 S.W.3d            the new-trial hearing, Leal asked for and was given leave
402, 409 (Tex. App.--Houston [14th Dist.] 2004, no pet.)      to supplement his original motion for new trial. The State
(motion to suppress is a specialized objection to the         did not object. See State v. Moore, 225 S.W.3d 556, 569
admission of evidence). Specifically, citing Missouri v.      (Tex. Crim. App. 2007) (trial court retains authority to
McNeely,      U.S. , 133 S. Ct. 1552, 185 L. Ed. 2d 696       allow untimely amendment to original motion for new
(2013), which had not yet been decided, Leal claimed          trial within seventy-five-day period, so long as the State
that the repeat-offender provision of the implied-consent     does not object). At the hearing, Leal's counsel argued,
statute violated the Fourth Amendment. The record             based on the Supreme Court's holding in McNeely, that
shows that the trial court was aware of Leal's objection;     the warrantless blood draw violated Leal's Fourth
however, the trial court did not explicitly rule on the       Amendment rights. The State presented counter-
amended motion at the suppression hearing. Leal               arguments on the merits of Leal's claim, demonstrating
renewed his objection at trial when the State offered a       the p a rties' shared unde rsta nd ing tha t L e a l's
report containing an analysis of Leal's blood.1 The trial     constitutional rights were at stake. See Pena, 285 S.W.3d
court then admitted the report and allowed the analyst to     at 464. The trial court denied Leal's motion for new trial
testify regarding Leal's blood alcohol content. Based on      in an order dated May 21, 2013.
the trial court's action in allowing the State to present
                                                                     In sum, Leal timely presented his complaint to the
evidence of Leal's blood alcohol content to the jury, the
                                                              trial court in both his amended motion to suppress and
court implicitly overruled Leal's amended motion to
                                                              his supplemental motion for new trial. See Pena v. State,
suppress, and Leal preserved his claim that the
                                                              353 S.W.3d 797, 807 (Tex. Crim. App. 2011) (complaint
warrantless [*4]       blood draw violated his Fourth
                                                              is timely if made as soon as ground of objection becomes
Amendment rights. See Rey, 897 S.W.2d at 336-37; see,
                                                              [*6] apparent). Leal's complaint was adequately specific
e.g., Cantu v. State, 994 S.W.2d 721, 730-31 (Tex. App.--
                                                              to put the trial court on notice of his Fourth Amendment
Austin 1999, pet. dism'd) (error was preserved when trial
                                                              challenge to the warrantless blood draw. See, e.g.,
court did not expressly rule on defendant's objection to
                                                              Gillenwaters v. State, 205 S.W.3d 534, 537 (Tex. Crim.
expert witness's qualifications, but permitted expert to
                                                              App. 2006) (although motion for new trial did not
answer the question if he knew); Riddle v. State, No. 02-
                                                              mention "vague" or "vagueness," defendant's complaint
02-00231-CR, 2003 Tex. App. LEXIS 7154, 2003 WL
                                                              was adequately specific when he claimed on several
21983252, at *3 (Tex. App.--Fort W orth Aug. 21, 2003,
                                                              o c c a sio ns d uring tria l th a t the sta tu te w as
pet. ref'd) (mem. op.; not designated for publication)
                                                              "unconstitutionally vague"). The trial court ruled on
(error was preserved when trial court did not expressly
                                                              Leal's complaint when it admitted, over objection,
rule on portion of defendant's motion to suppress dealing
                                                              evidence obtained as a result of the warrantless blood
with inventory search, but allowed officer to testify
                                                              draw and denied Leal's supplemental motion for new
before the jury about the inventory search).
                                                              trial. See Tex. R. App. P. 33.1; Rey, 897 S.W.2d at 336.
                                                              W e therefore conclude that Leal preserved his claim that
       1     W hen the State offered the report, Leal's
                                                              the warrantless blood draw violated his Fourth
       counsel stated, "Subject to all prior objections, no
                                                              Amendment rights. Accordingly, we reverse the trial
       specific objection at this time." Leal's "prior
                                                              court's judgment and remand to the trial court for a new
       objections" included his amended motion to
                                                              trial consistent with our original opinion. See Leal, 452
       suppress. See Porath, 148 S.W.3d at 409; cf.
                                                              S.W.3d at 32.
       Bhola v. State, No. 14-09-00154-CR, 2010 Tex.
       App. LEXIS 4681, 2010 WL 2501116, at *4 (Tex.              /s/ Marc W . Brown
       App.--Houston [14th Dist.] June 22, 2010, no
                                                                  Justice
       pet.) (mem. op.; not designated for publication)
       (concluding defendant did not abandon his                 Panel consists of Chief Justice Frost and Justices
       motion to suppress when he stated at trial,            Donovan and Brown. (Frost, C.J., concurring)
       "Subject to the previous objections, no
       objections.")                                              Publish -- T EX . R. A PP . P. 47.2(b).

     Furthermore, Leal presented his claim to the trial       CONCUR BY: Kem Thompson Frost
court in his supplemental motion for new trial. Leal was
sentenced on February 14, 2013. He timely filed a             CONCUR
motion for new trial on March 8, 2013. See Tex. R. App.
P. 21.4(a). The original motion did not challenge the         CONCURRING OPINION ON REM AND
legality of the warrantless blood [*5]       draw. The
Supreme Court decided McNeely on April 17, 2013. On                Appellant moved to suppress evidence of his blood-
April 22, 2013, Leal filed a supplemental motion for new      alcohol concentration by challenging the legality of a
trial citing McNeely and claiming that the warrantless        traffic stop that eventually led to his arrest for driving
blood draw violated his Fourth Amendment rights. Under        while intoxicated (DW I). Appellant [*7] later amended
rule 21.4(b), the supplemental motion was not timely          his motion to suppress to challenge the warrantless blood
                                                              draw on Fourth Amendment grounds. On original
submission and over my dissent, this court reversed          identified in the amended motion is appellant's assertion
appellant's DW I conviction and remanded for a new           that the warrantless blood draw was taken pursuant to a
trial.1 Addressing an issue of first impression in this      Texas statute that, as applied, violated the Fourth
court, the majority concluded that the trial court should    Amendment.6 The Court of Criminal Appeals recognized
have suppressed evidence of appellant's blood-alcohol        that appellant's amended motion contains a challenge to
content because law enforcement officers obtained the        the warrantless blood draw on Fourth Amendment
evidence by means of a warrantless blood draw, which         grounds.7 By including this ground in his amended
violated appellant's Fourth Amendment right to be free       motion to suppress, appellant identified his Fourth
from unreasonable searches and seizures.2                    Amendment complaint with sufficient specificity to
                                                             preserve error on the claim.8
       1 See Leal v. State, 452 S.W.3d 14, 32 (Tex.
       App.--Houston [14th Dist.] 2014), vacated, 456               6 Appellant's amended motion states:
       S.W.3d 567 (Tex. Crim. App. 2015).
       2 Id.
                                                                           Challenge to Mandatory Blood
     On its own motion, the Court of Criminal Appeals
                                                                           Draw      The State is apparently
granted review of this court's decision, vacated the
                                                                           relying on a blood [*9] draw
judgment, and remanded with instructions for this court
                                                                           taken without a warrant under
to address whether appellant preserved error on his claim
                                                                           Texas Transportation Code Sec.
that the warrantless blood draw violated his Fourth
                                                                           724.011, as amended in 2009. The
Amendment rights.3 On remand, the majority concludes
                                                                           Amendment purports to provide
that appellant preserved error, that the trial court's
                                                                           that a mandatory blood draw may
judgment should be reversed, and that the case should be
                                                                           be taken where an officer has
remanded for a new trial. I agree, but for different
                                                                           credible evidenc e tha t an
reasons.
                                                                           individual has been previously
                                                                           convicted twice of DW I.
       3 Leal v. State, 456 S.W.3d 567, 568 (Tex. Crim.
       App. 2015).                                                              The subject amendment to
                                                                           Sec. 724.011 is unconstitutional on
Preservation-of-Error Analysis                                             its face and as applied, as a
                                                                           violation of the U.S. Constitution,
      Appellant preserved error by making a timely,
                                                                           A m d . V II I , w h ic h p reve nts
specific complaint in the trial court and securing an
                                                                           unreasonable searches and
adverse ruling.4 [*8] Specifically, appellant moved the
                                                                           seizures.
trial court to suppress evidence of his blood-alcohol
content, identifying grounds for this relief in a written
motion to suppress. Before the suppression hearing,
                                                                    Appellant's curious reference to the Eighth
appellant amended the motion to include additional
                                                                    Amendment does not impact the preservation-of-
grounds for relief. Though the parties' arguments at the
                                                                    error analysis because it is apparent from the
hearing focused on another ground in the motion, to
                                                                    context that appellant meant the Fourth
preserve error a movant need not discuss all the grounds
                                                                    Amendment. Although appellant stated that
at the hearing.5 All that is required is specificity,
                                                                    Section 724.011 violated the Eighth Amendment,
timeliness, and an adverse ruling. The record establishes
                                                                    appellant's argument was that taking a warrantless
all three.
                                                                    blood draw as required by the statute violated his
                                                                    right under the United States Constitution to be
       4 Thomas v. State, 408 S.W.3d 877, 882 (Tex.
                                                                    free from unreasonable searches and seizures, and
       Crim. App. 2013); Fuller v. State, 827 S.W.2d
                                                                    this right is set forth in the Fourth Amendment to
       919, 928 (Tex. Crim. App. 1992).
                                                                    the United States Constitution. See U.S. Const.
       5 Eisenhauer v. State, 754 S.W.2d 159, 160-61
                                                                    amend. IV. The motion contains no Eighth
       (Tex. Crim. App. 1988), overruled on other
                                                                    Amendment arguments, and the odd reference
       grounds by Heitman v. State, 815 S.W.2d 681,
                                                                    appears to be a typographical error.
       690 (Tex. Crim. App. 1991); Cisneros v. State,
                                                                    7 See Leal, 456 S.W.3d at 568.
       290 S.W.3d 457, 462-63 (Tex. App.--Houston
                                                                    8 See Thomas, 408 S.W.3d at 882.
       [14th Dist.] 2009, pet. dism'd); Vicknair v. State,
       670 S.W.2d 286, 288 (Tex. App.--Houston [1st
                                                             Tim eliness
       Dist.] 1983), aff'd, 751 S.W.2d 180, 187-90 (Tex.
       Crim. App. 1988).                                         The record shows the following chronology of
                                                             events relevant to the preservation-of-error analysis:
Specificity
                                                                 At the time of the hearing, the only live motion
    Among     the   grounds for   suppression   appellant    pending before the trial court was the amended motion to
suppress.9 The moment appellant filed the amended                    Corpus Christi 1997, no pet.).
motion, the original motion [*10] ceased to exist. In the            12 Steere, 445 S.W.2d at 253.
context of legal pleadings and motions, an amended                   13 See id.
instrument is a substitute for the original; the old and
new instruments do not co-exist--the latter takes the         Adverse Ruling
place of the former. This defining feature of an amended
                                                                   At the end of the [*12] suppression hearing, the trial
motion distinguishes it from a supplemental motion,
                                                              court denied the pending motion to suppress, which was
which is an addition rather than a replacement.1 0 Because
                                                              the amended motion, thus rejecting all grounds contained
the amended motion superseded and supplanted the
                                                              in that motion. Even though arguments at the hearing
original motion,1 1 the original motion could no longer be
                                                              focused on another ground for suppression of the blood-
considered.1 2 Thus, when the trial court denied the motion
                                                              alcohol evidence, appellant preserved error on all
to suppress, the trial court denied the only pending
                                                              grounds contained in the amended motion, including the
motion--appellant's First Amended Motion to Suppress.1 3
                                                              Fourth Amendment ground he now asserts on appeal. To
In that motion appellant raised the claim this court
                                                              preserve error, it was not necessary for appellant to argue
adjudicated on original submission. The trial court
                                                              that ground at the hearing.1 4 At the conclusion of the
denied the motion at the suppression hearing during trial,
                                                              hearing, the trial court refused to suppress the evidence
before admitting the blood-alcohol evidence. Thus,
                                                              and denied the pending motion (First Amended Motion
appellant's objection was timely.
                                                              to Suppress) in its entirety. Thus, appellant secured the
                                                              requisite adverse ruling to preserve error.
       9 In its opinion, the Court of Criminal Appeals
       stated that the suppression hearing pertained to
                                                                     14    See Eisenhauer, 754 S.W.2d at 160-61;
       the original motion to suppress rather than the
                                                                     Cisneros, 290 S.W.3d at 462-63; Vicknair, 670
       amended motion to suppress. Leal, 456 S.W.3d at
                                                                     S.W.2d at 288.
       568. Nothing in the record suggests that appellant
       withdrew the amended motion or that appellant
                                                              Absence of Waiver
       refiled the original motion, or that appellant took
       any other action [*11] that might arguably have             Though a party moving to suppress evidence may
       brought the superseded motion back to life. The        waive a ground contained in the motion at the hearing on
       amended motion contained all of the grounds            the motion, no such waiver occurred. At the suppression
       asserted in the original motion as well as             hearing, appellant did not state or otherwise indicate that
       additional grounds. The suppression hearing            he was waiving or withdrawing his constitutional
       focused on a ground contained in the original          challenge to the blood-draw statute. Nor did appellant
       motion, but at the time of the hearing the original    state that he was urging only the grounds that he argued
       motion was a nullity, having been replaced by          or mentioned at the suppression hearing. The State did
       operation of law upon the filing of the amended        not object to appellant's [*13] amendment of the motion
       motion, which also contained the ground that was       to suppress, nor did the State argue that the trial court
       the focus of the hearing. See Steere v. State, 445     should not consider appellant's constitutional challenge
       S.W.2d 253, 253 (Tex. App.--Houston [1st Dist.]        to the blood-draw statute. Nor did the trial court refuse to
       1969, writ dism'd).                                    consider it.
       10 A supplemental motion is an addendum to
                                                                   Though appellant did not devote argument to his
       the original motion. Cf. Tex. R. Civ. P. 62-65. See
                                                              constitutional challenge to the blood-draw statute in his
       also B LACK 'S L AW D IC TIO N ARY 1438, 1439 (6th
                                                              oral presentation to the trial court, the evidence adduced
       ed. 1990) (defining "supplemental" as "That
                                                              at the suppression hearing included the following:
       which is added to a thing to complete it," and
       noting that supplemental affidavits, answers,
                                                                        1. when asked to voluntarily provide a
       complaints, and pleadings, add to the original).
                                                                     blood sample, appellant refused to do so;
       But, an amended motion is a substitute--a
       replacement--for the original. See Riney v.                       2. Officer Hodges was required by
       State,28 S.W.3d 561, 565-66 (Tex. Crim. App.                  the blood-draw statute to have a blood
       2000) (noting that once indictment was amended                sample taken from appellant;
       it became the "official" indictment in the case);
       see also Eastep v. State, 941 S.W.2d 130, 132-33                  3. appellant was taken to a hospital
       (Tex. Crim. App. 1997)(holding that, in the                   emergency room where a blood sample
       context of indictment, an amendment is an                     was taken;
       alteration to the face of the charging instrument                  4. just before the blood draw,
       which affects the substance of the charging                   appellant stated that he wanted his
       instrument), overruled on other grounds by                    attorney present during the blood draw;
       Riney, 28 S.W.3d at 561.                                      and
       11     Steere, 445 S.W.2d at 253; cf. Herrera v.
       State, 951 S.W.2d 197, 198-99 (Tex. App.--                         5.   appellant   was    "uncooperative
       during the blood draw." 1 5                             the Court of Criminal Appeals issued its opinion in State
                                                               v. Villarreal.1 8 In Villarreal, the high court held that
                                                               implied consent under Texas Transportation Code
                                                               section 724.012(b) "cannot substitute for the free and
                                                               voluntary consent that the Fourth Amendment requires." 1 9
       15      At one point, appellant's counsel asked         Since then, the Court of Criminal Appeals has granted
       Officer Hodges how many people held appellant           the State's motion for rehearing in Villarreal, and ordered
       down during the blood draw, and Officer Hodges          the case resubmitted so that the high court could consider
       answered "three." W ithout striking the testimony,      the arguments presented by the State in [*16] its
       the trial court then stated "Let's not go there right   rehearing motion. To date, the Court of Criminal Appeals
       now. I want to hear just Motion to Suppress             has not withdrawn or changed its opinion or judgment in
       issues." Appellant's counsel did not respond to         Villarreal, nor has the court issued a new opinion or
       this statement [*14]          and continued his         judgment. In this context, the Fourteenth Court of
       examination of the witness. It is not clear what        Appeals still is bound by the majority opinion in
       the trial court meant by this comment. The trial        Villareal. Under that standing precedent, the trial court's
       court may have meant that the number of people          judgment in the case under review must be reversed and
       who held appellant down while his blood was             the case remanded for a new trial.2 0
       drawn over appellant's objection was not relevant
       to any issue in the amended motion to suppress,                17 See Leal v. State, 452 S.W.3d 14, 32-40 (Tex.
       including the challenge to the mandatory blood-                App.--Houston [14th Dist.] 2014), vacated, 456
       draw statute. Even presuming that the trial court              S.W.3d 567 (Tex. Crim. App. 2015).
       was expressing a belief that there was no issue in             18 See S.W.3d , 2014 Tex. Crim. App. LEXIS
       the amended motion to suppress regarding the                   1898, No. PD-0306-14, 2014 WL 6734178 (Tex.
       blood-draw statute, appellant's counsel never                  Crim. App. Nov. 26, 2014) (reh'g granted).
       expressed any agreement with this belief.                      19 2014 Tex. Crim. App. LEXIS 1898, [WL] at
                                                                      *11.
     During the suppression hearing, appellant's counsel
                                                                      20 See Villarreal,       S.W.3d at     , 2014 Tex.
stated that the prosecutor and he had agreed to first
                                                                      Crim. App. LEXIS 1898, 2014 WL 6734178 at *8-
present evidence regarding the validity of the stop and
                                                                      21; State v. Tercero,    S.W.3d ,       , 2015 Tex.
then present evidence regarding other issues. After the
                                                                      App. LEXIS 3284, *5, 2015 WL 1544519, at *2-6
parties each presented the validity-of-the-stop evidence,
                                                                      (Tex. App.--Houston [1st Dist.] Apr. 2, 2015, no
each side presented additional evidence, and appellant
                                                                      pet. h.) (applying Villarreal as binding precedent
argued that one or more of his statements that the State
                                                                      after rehearing motion was granted by the Court
wanted to use against him at trial were made after he
                                                                      of Criminal Appeals in Villarreal).
requested a lawyer. No further evidence was presented.
Near the end of the hearing, as the lunch break drew
                                                               Conclusion
near, the trial court asked counsel if there was anything
else "we [*15] need to talk about right now." Appellant's           The record shows that appellant made a timely,
counsel responded "No, not here." To preserve error,           specific complaint that the warrantless drawing of his
however, appellant was not required to talk about his          blood violated his Fourth Amendment right to be free
constitutional challenge to the blood-draw statute at the      from unreasonable searches and seizures, and secured an
suppression hearing when appellant had presented the           adverse ruling. Appellant preserved error as to this
ground by means of his written motion to suppress.1 6          complaint. Under binding precedent from the Court of
Appellant's counsel did nothing at the suppression             Criminal Appeals, this court must conclude that appellant
hearing sufficient to waive the challenge to the blood-        did not impliedly consent for Fourth Amendment
draw statute contained in the amended motion.                  purposes to the blood draw under Texas Transportation
                                                               Code section 724.012(b)(3)(B) and that the warrantless
       16    See Eisenhauer, 754 S.W.2d at 160-61;             blood draw violated appellant's Fourth Amendment
       Cisneros, 290 S.W.3d at 462-63; Vicknair, 670           rights. Thus, I respectfully concur in the court's judgment
       S.W.2d at 288.                                          on remand.
                                                                   /s/ Kem Thompson Frost
Disposition of the Appeal
                                                                   Chief Justice [*17]
    On original submission, I concluded in a dissenting
opinion that the warrantless blood draw did not violate           Panel consists of Chief Justice Frost and Justices
appellant's right to be free from unreasonable searches        Donovan and Brown (Brown, J., majority).
and seizures because appellant impliedly consented to the
                                                                   Publish -- T EX . R. A PP . P. 47.2(b).
blood draw under Texas Transportation Code section
724.012(b)(3)(B).1 7 After this court issued its judgment,
APPENDIX C
