Moore, Laura Denise ( 2015 )


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  •                         PD-1228-15                                            PD-1228-15
    COURT OF CRIMINAL APPEALS
    AUSTIN, TEXAS
    Transmitted 10/21/2015 5:30:21 PM
    Accepted 10/22/2015 1:14:51 PM
    ABEL ACOSTA
    IN THE COURT                                               CLERK
    OF CRIMINAL APPEALS OF TEXAS
    LAURA DENISE MOORE,             §
    APPELLANT                   §
    §
    V.                              §               PD-1228-15
    §
    THE STATE OF TEXAS ,            §
    APPELLEE                    §
    § § §
    STATE'S PETITION FOR DISCRETIONARY REVIEW
    § § §
    SHAREN WILSON
    Criminal District Attorney
    Tarrant County, Texas
    DEBRA WINDSOR, Assistant
    Criminal District Attorney
    Chief, Post-Conviction
    TANYA S. DOHONEY
    Assistant Criminal District Attorney
    Tim Curry Criminal Justice Center
    401 W. Belknap
    October 22, 2015
    Fort Worth, Texas 76196-0201
    (817) 884-1687 FAX (817) 884-1672
    State Bar No. 02760900
    ccaappellatealerts@tarrantcountytx.gov
    LISA C. MCMINN,
    State Prosecuting Attorney
    ORAL ARGUMENT IS REQUESTED
    IDENTITY OF THE PARTIES AND COUNSEL
    The State of Texas, represented by the Hon. Sharen Wilson, Tarrant
    County Criminal District Attorney, prosecutes this appeal.      Additionally,
    representing the State on appeal is the Hon. Tanya S. Dohoney, Assistant
    Criminal District Attorney and Hon. Debra Windsor, Assistant Criminal
    District Attorney and Post-Conviction Chief. At trial, the Hon. Caroline Kim,
    Assistant Criminal District Attorney, represented the prosecution.       The
    State’s attorneys’ address is Office of the Criminal District Attorney of
    Tarrant County, Tim Curry Criminal Justice Center, 401 W. Belknap, Fort
    Worth, Texas 76196-0201.
    Appellant, Defendant below, is Laura Denise Moore.          Hon. Mimi
    Coffey and Hon. Joan Cochrane, 4700 Airport Freeway, Fort Worth, Texas,
    76102, and represented Appellee at trial. Hon. Richard A. Henderson, 100
    Throckmorton Street, Suite 540, Fort Worth, Texas 76102, represents
    Appellant on appeal.
    The Hon. Scott Wisch, judge of the 372nd Judicial District Court of
    Tarrant County, Texas, presided over Appellant’s case. The Second Court
    of Appeals transferred this cause to the docket of the Court of Appeals for
    the Eleventh District of Texas.     On August 21, 2015, an unpublished
    ii
    opinion reversing Appellant’s conviction issued. Moore v. State, No. 11-13-
    00347-CR, 
    2015 WL 5192175
    (Tex. App.—Eastland Aug. 21, 2015). The
    panel deciding the case consisted of Chief Justice Wright, Justice Willson,
    and Justice Bailey.
    iii
    SUBJECT INDEX
    IDENTITY OF THE PARTIES AND COUNSEL ............................................ i
    SUBJECT INDEX ...................................................................................... iv
    INDEX OF AUTHORITIES ......................................................................... vi
    STATEMENT REGARDING ORAL ARGUMENT ........................................ 9
    STATEMENT OF THE CASE ................................................................... 10
    STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE ........... 10
    STATEMENT OF FACTS ......................................................................... 10
    QUESTIONS PRESENTED FOR REVIEW............................................... 12
    FIRST QUESTION FOR REVIEW ............................................................ 12
    Does a warrantless, nonconsensual blood draw conducted
    pursuant to TEX. TRANSP. CODE § 724.012(b) violate the Fourth
    Amendment?
    SECOND QUESTION FOR REVIEW ....................................................... 12
    Are Fourth Amendment warrant-preference exceptions the sole
    measure of Fourth Amendment reasonableness in warrantless
    scenarios?
    THIRD QUESTION FOR REVIEW ............................................................ 12
    Do exclusionary rule principles mandate suppression of blood
    evidence seized via a warrantless, nonconsensual, valid-at-the-
    time mandatory blood draw?
    ARGUMENT AND AUTHORITIES ............................................................ 13
    iv
    CONCLUSION AND PRAYER .................................................................. 26
    CERTIFICATE OF COMPLIANCE ............................................................ 27
    CERTIFICATE OF SERVICE .................................................................... 27
    APPENDIX .................................................................................................A
    v
    INDEX OF AUTHORITIES
    CASES
    Breithaupt v. Abram,
    
    352 U.S. 432
    (1957) ........................................................................ 22
    Cole v. State,
    
    454 S.W.3d 89
         (Tex. App.—Texarkana 2014, pet. granted) ..................................... 15
    Davis v. United States,
    ___ U.S. ___, 
    131 S. Ct. 2419
    (2011) ........................................ 23–24
    Garcia v. State,
    
    829 S.W.2d 796
    (Tex. Crim. App. 1992) .......................................... 25
    Holidy v. State,
    No. 06-13-00261-CR, 
    2014 WL 1722171
          (Tex. App.—Texarkana Apr. 30, 2014, pet. granted ........................ 14
    Hulit v. State,
    
    982 S.W.2d 431
    (Tex. Crim. App. 1998) .................................... 21–22
    Illinois v. Krull,
    
    480 U.S. 342
    (1987) ........................................................................ 
    23 Md. v
    . King,
    569 U.S. ___, 
    133 S. Ct. 1958
    (2013) .............................................. 21
    McGee v. State,
    
    105 S.W.3d 609
    (Tex. Crim. App. 2003) .......................................... 22
    vi
    McGruder v. State,
    No. 10-13-00109-CR, ___ S.W.3d ___, 
    2014 WL 3973089
        (Tex. App.—Waco 2014, pet. granted) ............................................ 14
    Michigan Dept. of State Police v. Sitz,
    
    496 U.S. 444
    (1990) ........................................................................ 21
    Miles v. State,
    
    241 S.W.3d 28
    (Tex. Crim. App. 2007) ............................................ 16
    Moore v. State,
    No. 11-13-00347-CR, 
    2015 WL 5192175
         (Tex. App.—Fort Worth Aug. 21, 2015)............................................ 11
    Reeder v. State,
    428 S.W.3d (Tex. App.—Texarkana 2014, pet. granted) ................ 14
    Segundo v. State,
    
    270 S.W.3d 79
    (Tex. Crim. App. 2008),
    cert. denied, 
    558 U.S. 828
    (2009) .............................................. 21–22
    Skinner v. Railway Labor Executives’ Ass’n,
    
    489 U.S. 602
    (1989) .................................................................. 18–21
    Smith v. State,
    No. 13-11-00694-CR, ___ S.W.3d ___, 
    2014 WL 5901759
         (Tex. App.—Corpus Christi 2014, pet. granted) ............................... 14
    State v. Daugherty,
    
    931 S.W.2d 268
    (Tex. Crim. App. 1996) .......................................... 25
    State v. Villarreal,
    PD-0306-14, ___ S.W.3d ___, 
    2014 WL 6734178
          (Tex. Crim. App. 2014) .............................................................passim
    Tharp v. State,
    
    935 S.W.2d 157
    (Tex. Crim. App. 1996) .......................................... 19
    vii
    Vernonia School Dist. 47J v. Acton,
    
    515 U.S. 646
    (1995) ........................................................................ 20
    Weems v. State,
    
    434 S.W.3d 655
        (Tex. App.—San Antonio 2014, pet. granted) ........................... 14–15
    STATUTES
    TEX. CODE CRIM. PROC. art. 14.04.............................................................. 18
    TEX. CODE CRIM. PROC. art. 18.16.............................................................. 16
    TEX. CODE CRIM. PROC. art. 38.23........................................................ 24, 26
    TEX. PENAL CODE § 1.07(a)(30).................................................................. 24
    TEX. PENAL CODE § 49.04(a)................................................................ 11, 16
    TEX. PENAL CODE § 49.09(b)(2) ........................................................... 11, 16
    TEX. TRANSP. CODE § 724.012(b)........................................................passim
    TEX. TRANSP. CODE § 724.012(b)(3)........................................................... 16
    TEX. TRANSP. CODE § 524.012(b)(1) .......................................................... 19
    U.S. CONST. amend. IV ....................................................................passim
    RULES
    TEX. R. APP. P. 66.3 .................................................................................. 15
    TEX. R. APP. P. 9.4 .................................................................................... 28
    viii
    IN THE COURT
    OF CRIMINAL APPEALS OF TEXAS
    LAURA DENISE MOORE,                   §
    APPELLANT                         §
    §
    V.                                    §             PD-1228-15
    §
    THE STATE OF TEXAS ,                  §
    APPELLEE                          §
    STATE’S PETITION FOR DISCRETIONARY REVIEW
    TO THE HONORABLE JUDGES OF
    THE COURT OF CRIMINAL APPEALS:
    Comes now the State of Texas, by and through her Tarrant County
    Criminal District Attorney, and respectfully urges this Court to grant
    discretionary review of this cause in accordance with the rules of appellate
    procedure.
    STATEMENT REGARDING ORAL ARGUMENT
    While the reasonableness of statutory mandatory blood draws merits
    argument, this Court has already heard oral argument on the instant issues
    in other cases currently before the Court. Therefore, the State does not
    request oral argument in this case.
    9
    STATEMENT OF THE CASE
    A jury convicted Appellant of felony driving while intoxicated. TEX.
    PENAL CODE §§ 49.04(a), 49.09(b)(2).1                (CR1:6, 142,149-50; RR4:29;
    RR6:18-19).       Subsequently, the trial court sentenced Appellant to ten
    years’ incarceration, probated for five years; the judge also assessed a
    $1500 fine. (CR1:149-50; RR7:137-41).
    STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE
    The Eastland Court of Appeals reversed the trial court in an
    unpublished opinion authored by Chief Justice Willson. Moore v. State, No.
    11-13-00347-CR, 
    2015 WL 5192175
    (Tex. App.—Fort Worth Aug. 21,
    2015). Rehearing was not sought. The State files this petition, due on
    October 21, 2015, following one extension.
    STATEMENT OF FACTS
    In this felony driving while intoxicated prosecution, officers seized
    Appellant’s blood pursuant to the mandatory blood draw provision
    contained in Texas’ implied-consent law. TEX. TRANSP. CODE §724.012(b).
    1
    Statutory references cited throughout refer to the current version unless noted.
    10
    At the trial court level, the judge denied Appellant’s motion to suppress the
    blood evidence. (CR1:138-40; RR3:13-14). On appeal, Appellant’s first
    point of error relied on the McNeely decision. Missouri v. McNeely, 569
    U.S. ___, 
    133 S. Ct. 1552
    (2013). Appellant also raised two additional jury
    instruction contentions; they remain unaddressed due to the appellate
    disposition of the McNeely claim. Moore, 
    2014 WL 5192175
    , at *1.
    The Eastland Court of Appeals reversed on the blood draw issue; the
    appellate court rejected the State’s various arguments regarding the
    propriety of the trial judge’s suppression ruling. 
    Id. at *1-5.
    The trial court
    had denied suppression, entering express findings that:
    1) probable cause supported the DWI arrest;
    2) the officer possessed reliable information revealing
    Appellant’s two prior DWIs;
    3) Appellant refused to provide a breath specimen;
    4) Texas’ implied consent framework existed for decades and
    had been enacted due to public policy concerns;
    5) the instant officer relied on the blood draw statute instead of
    seeking a warrant; and
    6) under these circumstances, the compelled sample was
    constitutionally reasonable.
    (RR2:24-26,36,43; RR3:8-14). In addition to the ruling on the merits of the
    McNeely point, the interim appellate court rejected the State’s argument
    regarding the inapplicability of the exclusionary rule in this case. Moore,
    
    2014 WL 5192175
    , at *4-5.
    11
    QUESTIONS PRESENTED FOR REVIEW
    FIRST QUESTION FOR REVIEW
    Does a warrantless, nonconsensual blood draw
    conducted pursuant to TEX. TRANSP. CODE § 724.012(b)
    violate the Fourth Amendment?
    SECOND QUESTION FOR REVIEW
    Are Fourth Amendment warrant-preference exceptions
    the sole measure of Fourth Amendment reasonableness
    in warrantless scenarios?
    THIRD QUESTION FOR REVIEW
    Do exclusionary rule principles mandate suppression of
    blood evidence seized via a warrantless, nonconsensual,
    valid-at-the-time mandatory blood draw?
    12
    ARGUMENT AND AUTHORITIES
    This Court is in the midst of grappling with the issues presented
    herein.   Whilst a November 2014 decision addressed the merits of the
    Fourth Amendment issue in one of the several McNeely-related cases then
    pending, what appeared decided remains in flux since the Court granted
    rehearing last February. State v. Villarreal, PD-0306-14, ___ S.W.3d ___,
    
    2014 WL 6734178
    (Tex. Crim. App. 2014) (reh’g granted, re-submitted
    Mar. 18, 2015).    Additionally, the appellate milieu includes six other
    submitted McNeely-inspired cases. Weems v. State, 
    434 S.W.3d 655
    (Tex.
    App.—San Antonio 2014, pet. granted) (submitted on arguments Nov. 19,
    2014, PD-0635-14); Reeder v. State, 
    428 S.W.3d 930
    (Tex. App.—
    Texarkana 2014, pet. granted) (submitted on arguments Jan. 14, 2015, PD-
    0601-14); Smith v. State, No. 13-11-00694-CR, ___ S.W.3d ___, 
    2014 WL 5901759
    (Tex. App.—Corpus Christi 2014, pet. granted) (submitted Apr.
    29, 2015, PD-1615-CR); McGruder v. State, No. 10-13-00109-CR, ___
    S.W.3d ___, 
    2014 WL 3973089
    (Tex. App.—Waco 2014, pet. granted)
    (submitted Apr. 15, 2015, PD-1263-14); Holidy v. State, No. 06-13-00261-
    CR, 
    2014 WL 1722171
    (Tex. App.—Texarkana Apr. 30, 2014, pet. granted)
    (mem. op., not designated for publication) (submitted on arguments Jan.
    13
    14, 2015, PD-0622-14); Cole v. State, 
    454 S.W.3d 89
    (Tex. App.—
    Texarkana 2014, pet. granted Apr. 22, 2015) (submitted on arguments Sep.
    16, 2015, PD-0077-15).
    The State’s instant petition focuses on two aspects of any McNeely-
    related consequences: the validity of a statutorily-compelled draw and the
    invalidity of the exclusionary rule’s application. Villarreal only resolved the
    merits of the mandatory-draw issue, not addressing the applicability of the
    exclusionary rule.    Villarreal, 
    2014 WL 6734178
    .         Nevertheless, the
    exclusionary rule issue is already before this Court. See 
    Cole, 454 S.W.3d at 89
    (fourth ground granted); see also 
    Weems, 434 S.W.3d at 666
    (applying exclusionary rule). In other words, this Court has already granted
    review on both issues presented herein.
    Review should be granted in this case because it involves important
    questions of law that are have not yet been finally addressed by this Court,
    matters in conflict in the interim appellate courts, and a misapplication of a
    Supreme Court decision that has been interpreted as undermining the
    validity of the Texas implied-consent statute. TEX. R. APP. P. 66.3(a)-(d),(f).
    14
    I.   Valid, compelled statutory blood draw
    The State’s appellate stance is in lockstep with that of prosecutors
    from other counties across the State who have already had cases granted
    for review on a McNeely-related issue. Hence, the State respectfully asks
    this Court to dispose of the instant case in a manner consistent with the
    petitions in Villarreal, Weems, Reeder, Smith, McGruder, Holidy, and Cole.
    Here, the officer reasonably relied on an existing, ubiquitous narrowly-
    focused, reasonable statute to obtain a compelled blood draw. The seizure
    occurred because the officer possessed probable cause that Appellant’s
    impaired conduct constituted felony DWI. TEX. PENAL CODE §§ 49.04(a),
    49.09(b)(2); TEX. TRANSP. CODE § 724.012(b)(3).
    In addition, the State differs with Villarreal’s original-submission
    decision and further asserts that several important arguments should be
    considered on the merits.
    A.    Codification of Fourth Amendment principles
    Villarreal failed to consider that the implied-consent statute codified
    Fourth Amendment principles.     For instance, this Court has previously
    recognized a statutory codification of the exigency exception. See Miles v.
    State, 
    241 S.W.3d 28
    , 39–40 n.54 (Tex. Crim. App. 2007) (citing TEX. CODE
    CRIM. PROC. art. 18.16). McNeely recognized that every case involving the
    15
    dissipation of alcohol included some exigency. 
    McNeely, 133 S. Ct. at 1561
    , 1568.      This ever-present exigency must be considered when
    assaying the reasonableness of statutory draws.
    Combine this static alcohol-evaporation-exigency consideration with
    the Legislature’s clear codification of the gravity-of-the-offense exigency.
    The implied-consent statute extinguished a defendant’s right to refuse
    where an officer possesses probable cause to believe that certain
    enumerated, egregious circumstances exist.              TEX. TRANSP. CODE
    § 724.012(b).    Defendants only lose their refusal right under carefully
    circumscribed scenarios involving felonious intoxication-related offenses
    and/or resultant injuries necessitating hospitalization. 
    Id. The statute
    only
    applies to the most serious categories of DWI offenders.
    This statutory limitation amounts to a codification of an additional
    recognized exigency unrelated to blood-alcohol dissipation.          Welsh v.
    Wisconsin held that the Fourth Amendment authorizes common-sense
    consideration of the underlying offense’s gravity when weighing the
    existence of an exigency.      Welsh v. Wisconsin, 
    466 U.S. 740
    , 751–52
    (1984) (exigency calculations include consideration of a crime’s severity).
    Consideration of a crime’s gravity is the essence of reasonableness
    16
    because the State’s interest is greater in a more serious case. Cf. TEX.
    CODE CRIM. PROC. art. 14.04 (authorizing warrantless arrests for felonies
    where an officer did not observe the offense).
    Of course, it almost goes without saying that Texas’ implied-consent
    legislation codified Fourth Amendment probable cause requirements. U.S.
    CONST. amend. IV. Predicate elements of the implied consent statute
    codify this well-known quantum-of-evidence as a requirement for a
    compelled search. TEX. TRANSP. CODE § 724.012(b). The probable cause
    requirement—in      tandem   with   the    codified       gravity-of-the-crime   and
    dissipation-of-alcohol   exigencies—creates           a     neutral,   non-arbitrary
    framework authorizing a narrowly-defined seizure from an already-in-
    custody arrestee.     These refinements in the implied-consent statute’s
    structure embrace the essence of Fourth Amendment reasonableness.
    B.     Special-needs framework adds to the reasonableness
    calculation
    The now-withdrawn Villarreal decision rejected application of the
    Supreme Court’s special needs doctrine to the mandatory blood draw
    framework.     Villarreal, 
    2014 WL 6734178
    , at *14–15; see Skinner v.
    Railway Labor Executives’ Ass’n, 
    489 U.S. 602
    , 619 (1989). However, the
    Court did not consider that blood drawn pursuant to Chapter 724’s mandate
    17
    also implicates administrative license revocation [ALR] procedures, a
    separate regulatory process that focuses on protecting the traveling public
    by removing offenders from the road.             See TEX. TRANSP. CODE
    § 524.012(b)(1) (mandating license suspension based upon BAC).
    “The primary purpose of the administrative license suspension statute
    is not to deter the licensee or to seek retribution, but to protect the public
    from the carnage on the public roads of Texas caused by drunk drivers.”
    Tharp v. State, 
    935 S.W.2d 157
    , 159 (Tex. Crim. App. 1996).             Such
    regulation focuses on the government’s strong interest in removing
    intoxicated drivers from the road, just as railroad regulation in Skinner
    sought to increase railway safety by detecting intoxicated employees.
    Compare 
    Skinner, 489 U.S. at 620
    –21 with 
    Tharp, 935 S.W.2d at 159
    .
    Special needs’ principles recognize the statute’s provision of a
    neutral, detached vehicle for protecting citizens from impaired drivers and
    defendants from unfettered discretion.        The special-needs exception
    constitutes another factor to consider in a non-dualistic analysis that
    renders Texas’ compelled-draw framework reasonable.
    18
    C.     Erroneous consideration of the “Less Intrusive
    Means” test
    The original Villarreal decision considered the ready availability of
    warrants when rejecting the validity of Texas’ mandatory draw statute.
    Villarreal, 
    2014 WL 6734178
    , at *18 (finding no compelling need to uphold
    warrantless, nonconsensual blood searches where warrants are “often
    readily available”). However, factors such as electronic warrants and the
    availability of a magistrate shift the focus away from an officer’s conduct
    and, instead, weigh considerations of alternative means. But see 
    McNeely, 133 S. Ct. at 1560
    –64 (Part IIB’s alternative means analysis applied when
    determining whether per se exigency existed).
    The Supreme Court resoundingly rejected applying less-intrusive-
    alternative-practices arguments to Fourth Amendment cases not resolved
    under the exigency exception. Vernonia School Dist. 47J v. Acton, 
    515 U.S. 646
    , 663–64 n.3 (1995) (upholding warrantless, random urine
    screening    of    athletes   after      considering    diminished    privacy,
    unobtrusiveness, and severity of need, spurning arguments relying on less
    intrusive alternatives); 
    Skinner, 489 U.S. at 629
    n.9 (upholding random,
    suspicionless drug screening of railway employees under special needs
    exception    and     discarding       less-drastic-and-equally-effective-means
    19
    arguments).    One footnote in Skinner flatly debunks the propriety of
    considering less-drastic alternatives in scenarios that include warrantless
    and even suspicionless seizures for toxicological testing, similar to
    Appellant’s facts. 
    Id. The State
    maintains that less-restrictive-alternatives logically apply
    when a seizure’s validity rests solely on the temporal factors presenting an
    exigency; less-drastic, post-hoc what-ifs do not apply, however, to
    reasonableness calculations factoring in other warrantless exceptions.
    Villarreal’s analysis mistakenly applied this eschewed construct.
    II.   Implied-consent draws are reasonable
    Reasonableness has always been the linchpin of the Fourth
    Amendment, venerated in the provision’s plain language.         U.S. CONST.
    amend IV; Hulit v. State, 
    982 S.W.2d 431
    , 435–36, 438 (Tex. Crim. App.
    1998). Discernment of what is “reasonable” requires courts to consider the
    balance between an individual’s privacy and legitimate governmental
    interests, especially when public safety is of utmost concern.         See
    Maryland v. King, 569 U.S. ___, 
    133 S. Ct. 1958
    , 1979 (2013); Michigan
    Dept. of State Police v. Sitz, 
    496 U.S. 444
    , 455 (1990); Segundo v. State,
    
    270 S.W.3d 79
    (Tex. Crim. App. 2008), cert. denied, 
    558 U.S. 828
    (2009).
    20
    Villarreal viewed the choice between applying a Fourth Amendment
    exception and consideration of a reasonableness balancing approach as
    mutually exclusive analytical constructs. The State respectfully believes
    that this black-white consideration of these two concepts is mistaken,
    especially in light of the fact that this Court has relied upon the balancing
    approach to assay reasonableness on similar issues. See 
    Segundo, 270 S.W.3d at 96
    –99; McGee v. State, 
    105 S.W.3d 609
    (Tex. Crim. App. 2003);
    
    Hulit, 982 S.W.2d at 434
    n.1, 436.
    Again, the statute is reasonable.     Years ago, the Supreme Court
    recognized that a framework requiring a driver’s consent was anything but
    nonsensical.   The Breithaupt court pointed to then recently adopted
    implied-consent provisions and wrote:
    It might be a fair assumption that a driver on the highways in
    obedience to a policy of the State, would consent to have a
    blood test made as part of a sensible and civilized system
    protecting himself as well as other citizens not only from the
    hazards of the road due to drunken driving, but also from some
    use of dubious lay testimony.
    Breithaupt v. Abram, 
    352 U.S. 432
    , 435 n.2 (1957). The State contends
    that compelled draws under implied-consent provisions are inherently
    reasonable when weighing the needs of all involved.          Indeed, Fourth
    Amendment reasonableness underpins the statute.            The well-known
    21
    exceptions—as argued in the myriad cases already before this Court—
    considered individually and in concert with each other, alongside a
    balancing of the competing interests, all support the continued viability of
    Texas’ implied-consent framework.
    III.   Exclusionary rule inapplicable and not invoked
    Statutory mandatory blood-draws are reasonable. But see Villarreal,
    
    2014 WL 6734178
    (opinion on original submission; under re-submission).
    When the ink dries on Villarreal and future McNeely-related decisions and if
    those cases are adverse to the State on the merits, the rules requiring
    evidence exclusion should not apply to mandatory blood-draw scenarios
    that occurred prior to the Supreme Court’s April 2013 pronouncement.
    Federally, the good-faith exception to the Fourth Amendment’s
    exclusionary rule applies when law enforcement, at the time of the search,
    acted with objectively reasonable reliance on (1) a statute, later declared
    unconstitutional, or (2) binding judicial precedent, subsequently overruled.
    Illinois v. Krull, 
    480 U.S. 342
    , 349–57 (1987) (statutes); Davis v. United
    States, ___ U.S. ___, 
    131 S. Ct. 2419
    , 2428–34 (2011) (caselaw).
    Nor does the Texas exclusionary rule apply.       First, the officer’s
    conduct at the time did not trigger exclusions under subsection (a).
    22
    Second, the statutory good faith exception set out in article 38.23(b) is
    inapplicable in this instance and has been previously misinterpreted. TEX.
    CODE CRIM. APP. § 38.23(b).       Overall, invocation of exclusionary rule
    principles should hinge on the intent of the statute as a whole, including its
    history.
    As for subsection (a)’s language, a violation at the time of the seizure
    is the exclusion trigger.   When Appellant’s blood was drawn, no one
    credibly questioned the validity of the officer’s statutory authority. At the
    time of the seizure, the officer followed then-existing law. See TEX. CODE
    CRIM. PROC. art. 38.23(a); see also TEX. PENAL CODE § 1.07(a)(30) (defining
    “law” as meaning the state and federal constitution and statutes, in addition
    to the written opinions of a court of record); see also 
    Davis, 131 S. Ct. at 2427
    –28 (“obtained” applies to unlawfulness at the time of the seizure;
    exclusion not triggered in an absence of police culpability). Simply put, the
    instant circumstances do not invoke exclusion.
    Additionally, the State avers that Texas jurisprudence mistakenly
    limits exclusionary rule application; legislators never intended that article
    38.23(b)’s warrant provision be the sole exclusionary exception. Instead,
    Texans were to be afforded the same exclusionary protection coextensive
    23
    with federal law. See State v. Daugherty, 
    931 S.W.2d 268
    , 275 & n.1 (Tex.
    Crim. App. 1996) (McCormick, P.J., concurring and dissenting, joined by
    White and Keller, JJ.) (citations omitted); Garcia v. State, 
    829 S.W.2d 796
    ,
    803 n.1 (Tex. Crim. App. 1992) (Miller, J., concurring, joined by Campbell,
    J.). Finally, rejecting exclusion where an officer acted with obeisance to
    existing rules provides incentive for officers to follow the law, fulfilling the
    overlying purpose of the exclusionary rule.
    The Supreme Court mentioned, in dictum, the application of the
    exclusionary rule versus Fourth Amendment violations in a non-blood-draw
    scenario decided recently. In Heien, the Court weighed the validity of an
    investigatory stop where the officer misunderstood the traffic code provision
    he relied on to support the stop. See Heien v. North Carolina, ___ U.S.
    ___, 
    135 S. Ct. 530
    , 538–39 (2014). The Supreme Court considered the
    reasonableness of the officer’s mistake that lead to the stop and arrest
    when considering remedies. In so doing, the Court pointed out the myriad
    decisions finding exclusionary-rule invocation inappropriate where the
    officer’s conduct—valid at the time—was later declared unconstitutional.
    
    Id. With only
    one justice dissenting, the Supreme Court’s decision
    pondered the exclusionary rule’s limits that had been briefly considered in
    24
    Michigan v. DeFillippo.    Heien, 135 S. Ct at 538–39; see generally
    Michigan v. DeFillippo, 
    443 U.S. 31
    , 3–9 (1979) (suggesting that exclusion
    might have been appropriate had the provision been “grossly and flagrantly
    unconstitutional”).
    Although the Heien discussion is merely dicta, it reiterates the
    importance of focusing on the fact that the instant officer’s conduct fully
    complied with mandatory, settled law at the time of Appellant’s arrest.
    
    Heien, 135 S. Ct. at 538
    –39.         McNeely and subsequent caselaw
    questioning implied-consent blood draws came later. Since, no violation
    occurred at the time of the Appellant’s 2011 blood draw, Texas’
    exclusionary provision does not apply.      TEX. CODE CRIM. PROC. art.
    38.23(a). And since any legal error by the officer was reasonable, Fourth
    Amendment cases do not mandate the remedy of exclusion. See 
    Heien, 135 S. Ct. at 539
    .
    25
    CONCLUSION AND PRAYER
    Review should be granted and the decision of the Court of Appeals
    should be reversed.    The cause should be remanded to the Court of
    Appeals to address Appellant’s remaining jury-charge-related issues.
    Ultimately, Appellant’s felony DWI with a child passenger conviction should
    be upheld.
    Respectfully submitted,
    SHAREN WILSON
    Criminal District Attorney
    Tarrant County, Texas
    DEBRA WINDSOR, Assistant
    Criminal District Attorney
    Chief, Post-Conviction
    /s/ Tanya S. Dohoney
    TANYA S. DOHONEY
    Assistant Criminal District Attorney
    Tim Curry Criminal Justice Center
    401 W. Belknap
    Fort Worth, Texas 76196-0201
    (817) 884-1687
    FAX (817) 884-1672
    State Bar No. 02760900
    ccaappellatealerts@tarrantcountytx.gov
    26
    CERTIFICATE OF COMPLIANCE
    This document complies with the typeface requirements of TEX. R.
    APP. P. 9.4(e) because it has been prepared in a conventional typeface no
    smaller than 14-point for text and 12-point for footnotes. This document
    also complies with the word-count limitations of TEX. R. APP. P. 9.4 (i)
    because it contains less than 3900 words, excluding any parts exempted
    by TEX. R. APP. P. 9.4(i)(1), as computed by Microsoft Word, the computer
    software used to prepare the document.
    /s/ Tanya S. Dohoney
    TANYA S. DOHONEY
    CERTIFICATE OF SERVICE
    A true copy of the State's brief has been e-served to opposing
    counsel, the Hon. Richard Henderson, 1999 Throckmorton Street, Suite
    540, Fort worth, Texas 76102 at richard@rahenderson.com, on the 21st day
    of October, 2014.
    /s/ Tanya S. Dohoney
    TANYA S. DOHONEY
    U:\BRIEFS\PDRs & Merit Briefs\101215 moore mcneely pdr.docx
    27
    APPENDIX
    Moore v. State,
    No. 11-13-00347-CR, 
    2015 WL 5192175
     (Tex. App.—Eastland Aug. 21, 2015)
    A
    Moore v. State, Not Reported in S.W.3d (2015)
    The grand jury returned an indictment alleging that Appellant
    operated a motor vehicle in a public place while intoxicated
    
    2015 WL 5192175
                                                                     and that Appellant had twice before been convicted of the
    Only the Westlaw citation is currently available.
    offense of driving while intoxicated. A person commits the
    SEE TX R RAP RULE 47.2 FOR                             offense of driving while intoxicated, felony repetition, “if the
    DESIGNATION AND SIGNING OF OPINIONS.                         person is intoxicated while operating a motor vehicle in a
    public place” and it is shown that “the person has previously
    DO NOT PUBLISH. SEE TEX. R. APP. P. 47.2(B).                 been convicted ... two times of any other offense relating to
    Court of Appeals of Texas,                          the operating of a motor vehicle while intoxicated.” Penal §§
    Eastland.                                   49.04(a), 49.09(b)(2).
    Laura Denise Moore, Appellant
    v.
    The State of Texas, Appellee                                            II. Issues Presented
    Appellant argues, in her first issue, that the trial court erred
    No. 11–13–00347–CR |
    when it denied her motion to suppress evidence from the
    Opinion filed August 21, 2015
    blood draw because her blood was drawn illegally. 3 In her
    On Appeal from the 372nd District Court, Tarrant                 second and third issues, she argues that the trial court erred
    County, Texas, Trial Court Cause No. 1311911D                    when it denied her requests for a jury instruction under
    Article 38.23 of the Texas Code of Criminal Procedure 4 on
    Attorneys and Law Firms
    the validity of the traffic stop and the blood draw. In her
    Charles M. Mallin, Tanya S. Dohoney, for State of Texas.         final issue, Appellant argues that the trial court erred when
    it denied her motion for mistrial after the State's witness
    Richard A. Henderson, for Laura Denise Moore.                    improperly testified about an alleged extraneous offense.
    Panel consists of: Wright, C.J., Willson, J., and Bailey, J.
    3      Appellant's case is a transfer case from the Second
    Court of Appeals in Fort Worth, and under Rule 41.3
    of the Texas Rules of Appellate Procedure, we apply its
    MEMORANDUM OPINION                                       precedent unless we determine that our sister court would
    decline to do so.
    MIKE WILLSON, JUSTICE
    4      See TEX.CODE CRIM. PROC. ANN. art. 38.23(a)
    *1 The judgment of the trial court in this case reflects               (West 2005).
    that the jury found Appellant, Laura Denise Moore, guilty
    of “driving while intoxicated and felony repetition,” a third-
    degree felony. 1 Appellant elected to have the trial court                           III. Evidence at Trial
    assess punishment, and it assessed Appellant's punishment at
    Officer Mark Miller of the Bedford Police Department was
    confinement for ten years and a $1,500 fine. 2 The trial court   on patrol at approximately 4:50 a.m. when he saw Appellant
    suspended the confinement portion of the sentence and placed     come “very close to failing to yield” to other cars. Officer
    Appellant on community supervision for a term of five years.     Miller then saw Appellant abruptly make an illegal left turn
    We reverse and remand.                                           from the center lane. He turned on his emergency lights and
    stopped Appellant. Before he could speak to Appellant, she
    1      TEX. PENAL CODE ANN. §§ 49.04, 49.09(b) (West             drove her vehicle out of the parking lot and onto the street.
    Supp.2014).                                               Officer Miller pursued her with both his emergency lights and
    2                                                                siren activated, and Appellant abruptly pulled into the parking
    See PENAL § 12.34 (West 2011).
    lot of a shopping center.
    I. The Charged Offense                        Appellant was seated in the driver's seat of her vehicle.
    Officer Miller approached Appellant. When he reached the
    © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                 1
    Moore v. State, Not Reported in S.W.3d (2015)
    window area where Appellant was seated, he smelled a                 record supports the findings. Guzman v. State, 955 S.W.2d
    “moderate odor of alcoholic beverage” and also noticed               85, 87 (Tex.Crim.App.1997). Because the trial court is the
    that Appellant's eyes were “extremely watery.” He asked              exclusive factfinder, the appellate court reviews evidence
    Appellant where she was coming from and where she was                adduced at the suppression hearing in the light most favorable
    going; Appellant answered “home” to each question. Officer           to the trial court's ruling. 
    Carmouche, 10 S.W.3d at 327
    .
    Miller described Appellant's speech as “very slurred.” Based         We also give deference to the trial court's rulings on mixed
    on his observations, Officer Miller decided to conduct a             questions of law and fact when those rulings turn on an
    standardized field sobriety test. The test is composed of three      evaluation of credibility and demeanor. Guzman, 955 S.W.2d
    parts. Appellant failed two of the three parts, and based            at 87. Where such rulings do not turn on an evaluation of
    on those results and Officer Miller's observations before he         credibility and demeanor, we review the trial court's actions
    administered the sobriety test, he arrested her for driving          de novo. 
    Id. while intoxicated.
    Officer Miller transported Appellant to the
    jail.
    B. Motion to Suppress
    *2 Officer Miller also learned from questioning Appellant           Appellant argued in her pretrial motion to suppress that the
    and from a check of criminal history records, that she had           blood draw and the test results were inadmissible because
    been convicted of driving while intoxicated on two previous          the blood specimen had been illegally drawn. The trial court
    occasions. Officer Miller read Appellant the statutory               initially denied her motion. At trial, Appellant re-urged her
    objection, and the trial court carried the motion through trial
    warnings on the DIC–24 form 5 and asked if she would
    and then denied it again. Appellant asserts that the taking of
    provide him with a breath sample; she refused. Officer Miller
    her blood was in violation of her constitutional rights because
    testified that, because Appellant had two prior convictions
    the blood draw was conducted without a warrant, consent, or
    for driving while intoxicated, he was required 6 to obtain a         any other recognized exception to the warrant requirement.
    sample of Appellant's blood or breath. Officer Miller secured
    a blood draw kit, transported Appellant to a local hospital, and     The State asserts that the blood draw was constitutional
    had a registered nurse draw a specimen of Appellant's blood.         because it was reasonable and that, regardless, the exceptions
    Officer Miller noted that he could have obtained a warrant           of implied consent and search incident to arrest dispensed
    but that he did not do so because he had arrested Appellant          with the warrant requirement. Further, the State asserts
    for driving while intoxicated after she already had two prior        that, even if the search was not reasonable and no warrant
    convictions for that same offense.                                   exception applies, the exclusionary rule does not operate to
    exclude the evidence. Absent a warrant, a search is presumed
    5       A DIC–24 warning is a Department of Public Safety            unreasonable, and the State carries the burden to prove that an
    Form that provides the warnings outlined in Section          exception to the warrant requirement applies. See Gutierrez
    724.015 of the Texas Transportation Code. See TEX.           v. State, 
    221 S.W.3d 680
    , 685 (Tex.Crim.App.2007). The
    TRANSP. CODE ANN. § 724.015 (West 2011).                     State stipulated that Appellant's blood was drawn without
    6                                                                    a warrant. Therefore, the State had the burden to prove an
    See TRANSP. § 724.012(b).
    exception to the warrant requirement.
    IV. Analysis
    C. Implied Consent
    We will only address Appellant's first issue. As we explain          The State first argues that Officer Miller had implied consent
    below, the resolution of that issue obviates the need for us to      to draw Appellant's blood in accordance with Section 724.012
    address her remaining issues.                                        of the Texas Transportation Code. See TRANSP. § 724.012.
    Section 724.012 provides that an officer “shall require the
    taking of a specimen of the person's breath or blood ...
    A. Standard of Review                                                if the officer arrests the person for [DWI] and the person
    We review a trial court's ruling on a motion to suppress             refuses the officer's request to submit to the taking of a
    under a bifurcated standard of review. Carmouche v. State,           specimen voluntarily” and if one of three circumstances is
    
    10 S.W.3d 323
    , 327 (Tex.Crim.App.2000). We give great                met. 
    Id. § 724.012(b).
    The relevant circumstance is that,
    deference to the trial court's findings of historical facts if the   “at the time of the arrest, the officer possesses or receives
    © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              2
    Moore v. State, Not Reported in S.W.3d (2015)
    reliable information from a credible source that the person”                Nov. 26, 2014). We also note that the Court of Criminal
    has been convicted of driving while intoxicated on two prior                Appeals granted rehearing in State v. Villarreal on
    occasions. 
    Id. § 724.012(b)(3)(B).
    Section 724.011 provides                 February 25, 2015.
    that, if such a person is arrested for driving while intoxicated,    Officer Miller testified that he relied on the implied consent
    the person is deemed to have consented to the submission of          provision of the Texas Transportation Code as justification
    a specimen of breath or blood for analysis to determine the          for the warrantless blood draw. He also agreed he could have
    alcohol concentration in the person's body. 
    Id. § 724.011.
              obtained a warrant, but he chose to rely on the statute because
    Appellant's arrest for driving while intoxicated followed
    *3 Implied consent under the Texas Transportation Code              two prior convictions for the same offense. In that context,
    is not a recognized exception to the warrant requirement,            and considering that mandatory blood draws are not per se
    and the State cannot rely on it alone to justify a warrantless       reasonable, we cannot uphold the trial court's decision that the
    blood draw. See Burks v. State, 
    454 S.W.3d 705
    , 708–09               warrantless blood draw was reasonable. Forsyth, 438 S.W.3d
    (Tex.App.— Fort Worth 2015, pet. filed); Forsyth v. State,           at 224.
    
    438 S.W.3d 216
    , 223 (Tex.App.—Eastland 2014, pet. ref'd);
    Douds v. State, 
    434 S.W.3d 842
    , 861 (Tex.App.— Houston
    [14th Dist.] 2014, pet. granted); Weems v. State, 434 S.W.3d         E. Search Incident to Arrest
    655, 664 (Tex.App.—San Antonio 2014, pet. granted). We               The State's third argument is that the mandatory blood draw
    note the reasoning and holdings in these cases, and we decline       constitutes a lawful search “incident to arrest.” The search-
    to adopt the State's argument that it had implied consent to         incident-to-arrest exception to the warrant requirement
    draw Appellant's blood without a warrant. We cannot uphold           applies only if the search is “substantially contemporaneous”
    the trial court's ruling on such grounds.                            with the arrest and is also confined to the area within the
    immediate control of the suspect. State v. Granville, 
    423 S.W.3d 399
    , 410 (Tex.Crim.App.2014) (quoting Vale v.
    D. Fourth Amendment Reasonableness                                   Louisiana, 
    399 U.S. 30
    , 33 (1970)). The purpose of the search
    The State next asserts that the mandatory blood draw was             is to protect the officer, prevent an escape, or protect the
    a reasonable search under the Fourth Amendment and that              loss or destruction of evidence. 
    Id. at 410.
    Therefore, when a
    a warrant was not required. Under a Fourth Amendment                 search is not sufficiently close in time or place to the arrest,
    balancing test, we balance the intrusion on the person's Fourth      then the search-incident-to-arrest exception is not normally
    Amendment interests against the promotion of a legitimate            justified. 
    Id. Furthermore, the
    exception is usually applied to
    interest of the government. See Schenekl v. State, 30 S.W.3d         an “active attempt by a defendant or his associates to conceal
    412, 413 (Tex.Crim.App.2000). The Supreme Court has                  or destroy evidence upon arrest.” Riley v. California, 134
    described a blood draw as “a compelled physical intrusion            S.Ct. 2473, 2486 (2014).
    beneath [the accused's] skin and into his veins to obtain
    a sample of his blood for use as evidence in a criminal               *4 Appellant's blood was drawn at a hospital after Appellant
    investigation.” Missouri v. McNeely, 
    133 S. Ct. 1552
    , 1558            had been arrested and transported to the jail and then to the
    (2013). The Supreme Court continued, “Such an invasion of            hospital. Under these facts, we cannot say that officer safety
    bodily integrity implicates an individual's ‘most personal and       or prevention of escape was implicated. As to the argument
    deep-rooted expectations of privacy.’ ” 
    Id. (quoting Winston
            that the blood draw was necessary to protect the destruction of
    v. Lee, 
    470 U.S. 753
    , 760 (1985)). 7 We have considered this         evidence, we cannot say that the natural dissipation of alcohol
    issue before, and we have declined “to hold that mandatory           in the blood constitutes an “active attempt ... to conceal
    blood draws under the Texas Transportation Code are per se           or destroy evidence.” 
    Id. Based upon
    the rationale of the
    reasonable.” 
    Forsyth, 438 S.W.3d at 224
    .                             searchincident-to-arrest exception to the warrant requirement
    and upon the fact that the search was not close in time or place
    7                                                                    to the arrest, we hold that such an exception is not applicable
    We note that the Court of Criminal Appeals recently
    addressed, under the Fourth Amendment to the United
    in this case to support the warrantless blood draw.
    States Constitution, the constitutionality of warrantless,
    nonconsensual blood draws under Section 724.012 of
    F. Exclusionary Rule
    the Texas Transportation Code. See State v. Villarreal,
    No. PD–0306–14, 
    2014 WL 6734178
    (Tex.Crim.App.               The State's final argument is that, even if the blood draw
    was unlawful, the Texas exclusionary rule does not apply
    © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                   3
    Moore v. State, Not Reported in S.W.3d (2015)
    made an illegal left turn from the center lane. Officer Miller
    because Officer Miller followed an existing statute that
    stopped Appellant, but before he could speak to her, she drove
    had not been held unconstitutional when he arranged for
    away. Officer Miller stopped her again when she pulled into a
    the warrantless blood draw. We disagree with the State's
    parking lot at a shopping center. He spoke to her and noticed a
    contention. Article 38.23 of the Texas Code of Criminal
    moderate odor of alcohol. Officer Miller said Appellant's eyes
    Procedure, the Texas exclusionary rule, states, “No evidence
    were watery and her speech was very slurred. He conducted
    obtained by an officer ... in violation of any provisions of the
    a field sobriety test in three parts. Appellant failed two parts,
    Constitution or laws of [either Texas or the United States],
    and Officer Miller arrested her.
    shall be admitted in evidence against the accused on the trial
    of any criminal case.” CRIM. PROC. art. 38.23(a).
    At the jail, Appellant refused to take a breath test.
    Subsequently, her blood was taken by a nurse, who handed
    The statute also provides an exception to the exclusionary
    the blood samples to Officer Miller. Officer Miller placed
    rule, but “only when an officer relies in good faith upon a
    them in evidence envelopes and put them in a refrigerated
    warrant issued by a neutral magistrate based on probable
    locker in a secure location at the jail. The samples were then
    cause.” 
    Weems, 434 S.W.3d at 666
    –67 (citing CRIM. PROC.
    taken to the Integrated Forensic Laboratories where forensic
    art. 38.23(b)). There is no exception to the Texas exclusionary
    scientist Aubrey Norberg worked. Norberg tested the blood
    rule for good faith reliance on a statute. Burks, 454 S.W.3d at
    samples from Appellant and testified that Appellant's blood
    709; 
    Forysth, 438 S.W.3d at 224
    ; 
    Douds, 434 S.W.3d at 861
    ;
    alcohol concentration (BAC) was 0.16 grams of ethyl alcohol
    
    Weems, 434 S.W.3d at 666
    –67. Officer Miller did not obtain
    per 100 milliliters of whole blood. The State emphasized this
    a warrant, and no exception to the exclusionary rule applies.
    evidence during trial. After a review of the record, we cannot
    And nothing in Section 724.012 of the Transportation Code
    say beyond a reasonable doubt that the blood sample evidence
    instructs an officer to take a suspect's blood without a warrant
    did not contribute to Appellant's conviction. See Tex.R.App.
    or provides a valid exception to the warrant requirement of
    P. 44.2(a); 
    Weems, 434 S.W.3d at 667
    ; see also Forsyth, 438
    the Fourth Amendment. See TRANSP. § 724.012; see also
    S.W.3d at 225.
    
    Forsyth, 438 S.W.3d at 224
    –25. Thus, the evidence should
    have been excluded. We sustain Appellant's first issue.
    V. Conclusion
    G. Rule 44.2(a) Harm Analysis
    Because the warrantless mandatory blood draw violated                   *5 We hold that the trial court erred when it denied
    Appellant's rights under the Fourth Amendment, we must                 Appellant's motion to suppress the evidence from the blood
    reverse the judgment unless we determine beyond a                      draw. In light of that holding, we need not address Appellant's
    reasonable doubt that the error did not contribute to the              other issues.
    conviction or punishment. TEX.R.APP. P. 44.2(a); 
    Weems, 434 S.W.3d at 667
    . The jury was instructed as follows:
    VI. This Court's Ruling
    “Intoxicated” means:
    We reverse the judgment of the trial court and remand this
    (A) not having the normal use of one's mental or physical
    cause to the trial court for further proceedings consistent with
    faculties by reason of the introduction of alcohol into the
    this opinion.
    body; OR
    (B) having an alcohol concentration of 0.08 or more.
    All Citations
    Officer Miller testified that he stopped Appellant because she
    Not Reported in S.W.3d, 
    2015 WL 5192175
    came very close to failing to yield to other cars and then
    End of Document                                                    © 2015 Thomson Reuters. No claim to original U.S. Government Works.
    © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                  4