Joshua Ed Bowyer v. State ( 2015 )


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  •                         COURT OF APPEALS
    SECOND DISTRICT OF TEXAS
    FORT WORTH
    NO. 02-13-00315-CR
    JOSHUA ED BOWYER                                                    APPELLANT
    V.
    THE STATE OF TEXAS                                                       STATE
    ----------
    FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY
    TRIAL COURT NO. 1283996D
    ----------
    MEMORANDUM OPINION1
    ----------
    I. INTRODUCTION
    Appellant Joshua Ed Bowyer appeals his conviction for driving while
    intoxicated (DWI) with a child passenger under the age of fifteen.     See 
    Tex. Penal Code Ann. § 49.045
    (a)(2) (West Supp. 2011). In a single issue, Bowyer
    argues that the trial court erred by denying his motion to suppress blood alcohol
    test results obtained using the mandatory-blood-draw procedure of the Texas
    1
    See Tex. R. App. P. 47.4.
    Transportation Code and without his consent or a valid search warrant. See 
    Tex. Transp. Code Ann. §§ 724.011
    (a), 724.012(b), 724.013 (West 2011). Following
    the court of criminal appeals’s recent opinion in State v. Villarreal, No. PD-0306-
    14, --- S.W.3d ---, 
    2014 WL 6734178
    , at *21 (Tex. Crim. App. Nov. 26, 2014), in
    which the court held that such a warrantless, nonconsensual draw of a DWI
    suspect’s blood does not categorically fall within any recognized exception to the
    Fourth Amendment’s warrant requirement, nor can it be justified under a general
    Fourth Amendment balancing test, we will reverse the trial court’s suppression
    order and judgment and remand the case to the trial court.
    II. FACTUAL AND PROCEDURAL BACKGROUND
    The State indicted Bowyer for DWI with a child passenger. He filed a
    “MOTION TO SUPPRESS SEARCH WITHOUT WARRANT (MANDATORY
    BLOOD     DRAW     PURSUANT       TO TRANSPORTATION CODE                SECTION
    724.012).” At the suppression hearing, the State conceded that the officers in
    this case had time to secure a warrant to conduct a blood draw but did not do so
    because they were following Texas’s mandatory-blood-draw statute. See 
    Tex. Transp. Code Ann. § 724.012
    (b)(2).      After the hearing, the trial court denied
    Bowyer’s motion to suppress. Bowyer then pleaded guilty pursuant to a plea
    bargain, and in accordance with the plea bargain, the trial court sentenced
    Bowyer to two years’ confinement in the State jail and a $1,000 fine, suspended
    imposition of the confinement portion of the sentence, and placed Bowyer on
    community supervision for five years. This appeal followed.
    2
    III. BLOOD DRAW VIOLATED FOURTH AMENDMENT
    Following the United States Supreme Court’s decision in Missouri v.
    McNeely, the court of criminal appeals recently held that the provisions in the
    Texas Transportation Code do not, taken by themselves, form a constitutionally
    valid alternative to the Fourth Amendment warrant requirement. --- U.S. ---, 
    133 S. Ct. 1552
    , 1563 (2013); Villarreal, --- S.W.3d at ---, 
    2014 WL 6734178
    , at *10–
    16. Specifically, the court in Villarreal rejected the State’s arguments that (1) a
    warrantless, nonconsensual blood test under the transportation code should be
    upheld as categorically reasonable under the consent exception—applicable in
    the form of a prior waiver through implied consent, the automobile exception, the
    special-needs exception, or the search-incident-to-arrest exception, (2) a blood
    draw should be treated as a seizure instead of a search, and (3) such a search
    may be upheld on the basis that it is reasonable under a general Fourth
    Amendment balancing test. 
    Id.
     at ---, 
    2014 WL 6734178
    , *10–17. The State
    raises these same arguments in this appeal.
    In this case, Bowyer did not consent to a blood draw, and a warrant to
    draw his blood was not obtained.       The State does not rely on the exigent
    circumstances exception to the warrant requirement. And despite having time to
    obtain a warrant, the officers in this case relied exclusively on the “mandatory
    provisions” of transportation code section 724.012(b)(2) for the warrantless blood
    draw.     See 
    Tex. Transp. Code Ann. § 724.012
    (b)(2).          We hold that this
    warrantless, nonconsensual blood draw conducted pursuant to the mandatory-
    3
    blood-draw and implied-consent provisions of the Texas Transportation Code
    violated the Fourth Amendment. See Burks v. State, --- S.W.3d ---, No. 02-13-
    00560-CR, 
    2015 WL 115964
    , at *1–3 (Tex. App.—Fort Worth Jan. 8, 2015, no
    pet.) (“Following Villarreal, we hold that this warrantless, nonconsensual blood
    draw conducted pursuant to the mandatory-blood-draw and implied-consent
    provisions of the Texas Transportation Code violated the Fourth Amendment.”).
    We further hold that the trial court erred by denying Bowyer’s motion to suppress
    the blood alcohol test results, and we sustain his sole issue.
    IV. CONCLUSION
    Having sustained Bowyer’s sole issue, we reverse the trial court’s order
    denying Bowyer’s motion to suppress and the trial court’s judgment, and we
    remand this case to the trial court for further proceedings consistent with this
    opinion.
    /s/ Bill Meier
    BILL MEIER
    JUSTICE
    PANEL: MEIER and GABRIEL, JJ. 2
    DO NOT PUBLISH
    Tex. R. App. P. 47.2(b)
    DELIVERED: March 12, 2015
    2
    Justice McCoy was a member of the original panel but has retired in the
    interim.
    4
    

Document Info

Docket Number: 02-13-00315-CR

Filed Date: 3/12/2015

Precedential Status: Precedential

Modified Date: 10/16/2015