Rex Baker v. State ( 2015 )

ACCEPTED
07-14-00161-CR
SEVENTH COURT OF APPEALS
AMARILLO, TEXAS
1/20/2015 7:15:46 PM
Vivian Long, Clerk
NO. 07-14-00161-CR
FILED IN
IN THE 7th COURT OF APPEALS
AMARILLO, TEXAS
COURT OF APPEALS
1/20/2015 7:15:46 PM
FOR THE
VIVIAN LONG
SEVENTH DISTRICT OF TEXAS CLERK
AMARILLO, TEXAS
REX ANN BAKER,
APPELLANT
VS
THE STATE OF TEXAS,
APPELLEE
******************
BRIEF FOR THE APPELLANT
******************
ORAL ARGUMENT REQUESTED
Kelly Clark
Attorney-at-law
1601 Broadway
Lubbock, Texas 79401
(806) 765-9977
Attorney for the Appellant
REX ANN BAKER
ARTIES
(Rule 38.1, TEX. R. App. Proc)
A complete list of all parties to the trial court’s judgment or order appealed from,
and the names and addresses of all trial and appellate counsel includes:
For the Appellant: For the State of Texas:
KELLY CLARK JEFFREY FORD
1401 Crickets Ave. Criminal District
Attorney
Lubbock, TX 79401 P.O. Box 10536
(806) 765-9977 Lubbock, TX 79401
(806) 744-5411 (fax) (806) 775-1100
State Bar No. 00790467 (806) 775-1154 (fax)
(Appellate Counsel) (Appellate Counsel)
DAVID CROOK Stephan Crane
Attorney at Law Criminal District Attorney
P.O. Box 94590 P.O. Box 10536
Lubbock, Texas 79493 Lubbock, TX 79401
(806) 744-2082 (806) 775-1100
(Trial Counsel) (806) 775-1154 (fax)
(Trial Counsel)
Laura Beth Martin
Criminal District Attorney
P.O. Box 10536
Lubbock, TX 79401
(806) 775-1100
(806) 775-1154 (fax)
(Trial Counsel)
ii
TABLE OF CONTENTS
Page
PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .ii
TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .iii
INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .v
PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .vii
APPELLANT’S POINTS OF ERROR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
POINT OF ERROR NUMBER ONE: THE TRIAL COURT ABUSED ITS
DISCRETION WHEN IT REFUSED TO SUPPRESS THE EVIDENCE
OBTAINED BY LAW ENFORCEMENT CONDUCTING AN ILLEGAL
BLOOD DRAW IN VIOLATION OF THE APPELLANT’S RIGHT
PROHIBITING UNREASONABLE SEARCHES AND SEIZURES UNDER
THE UNITED STATES CONSTITUTION.
POINT OF ERROR NUMBER TWO: THE TRIAL COURT ABUSED ITS
DISCRETION WHEN IT REFUSED TO SUPPRESS THE EVIDENCE
OBTAINED BY LAW ENFORCEMENT CONDUCTING AN ILLEGAL
BLOOD DRAW IN VIOLATION OF THE APPELLANT’S RIGHT
PROHIBITING UNREASONABLE SEARCHES AND SEIZURES UNDER
THE TEXAS CONSTITUTION.
POINT OF ERROR NUMBER THREE: THE TRIAL COURT
UNCONSTITUTIONALLY HARMED APPELLANT WHEN IT REFUSED
TO SUPPRESS THE RESULTS OF APPELLANT’S BLOOD ALCOHOL
CONTENT THAT WAS ONLY AVAILABLE AS A RESULT OF A BLOOD
DRAW TAKEN FOR MEDICAL PURPOSES AND PRODUCED INTO
EVIDENCE BY A SHAM GRAND JURY SUBPOENA ISSUED
SUBSEQUENT TO INDICTMENT.
iii
STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
ARGUMENT AND AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
CONCLUSION AND PRAYER. . .. . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . .. . . .42
CERTIFICATE OF SERVICE . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . .43
CERTIFICATE OF WORD COUNT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .44
iv
INDEX OF AUTHORITIES
CASES Page
Beeman v. State, 86 S.W.3d 613 (Tex. Crim. App. 2002). . . . . . . . . . . . .15, 25, 26,31
Douds v. State, 14-12-00642 CR (Tex. App.—Houston(14th
Dist June 5, 2014)(unpublished cited for persuasive
purposes only)(rehearing en banc) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 34
Fla. v. Wells, 495 U.S.1, 4, 110S.Ct. 1632,
109 L.Ed 1 (1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .37
Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). . . . . . . . . , . . . . . . . . 21
Griffin v. Wisconsin, 483 U.S. 868, 873 (1987) . . . . . . . . . . . . . . . . . .. . . . . . . . . . . .24
Kelly v. State, 204 S.W.3d at 808 (Tex.Crim.App 2006) . . . . . . . . . .. . . . . . . . . . . 21
Kennemur v. State, 280 S.W.3d 305 (Tex.App.Amarillo
2008, pet.ref’d), cert denied, 556 U.S. 1191,
129 S. Ct. 2005, 173L.Ed.2d 1101 (2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 451 (1990) . . . .. . . . . . . . . . . 16
Miller El V. Dretke, 545 U.S. 231, 252 (2005). . . . . . . . . . . . . . .. . . . . . . . . .38
Missouri v. McNeely, 133 S. Ct. 1552, 1558 (2013) . . . . . . . . . . . 9, 16, 17, 18, 29, 35
Murray v. State, 245 S.W.3d 37 (Tex.App—Austin 2007)(pet filed) . . . . . . . . . . 40
People v. Chiagles, 142 N.E. 583, 584 (1923) . . . . . . . . . . . . . . . . . . . . . . . . . .11, 12
Salazar v. State, 12-13-00192 (Tex.App-Tyler August 29, 2014
unpublished cited for persuasive purposes only) . . . . . . . . . . . . . . . ..18, 19, 30, 34
Schmerber v. California, 384 U.S. 757, 766 (1966) . . . . . . . . . . . . . . . . 10, 11, 16, 17
Schneckloth v. Bustamonte, 412 U.S. 218 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . 25
State v. Baker, 12-12-00092-CR, 2013 WL 5657649 (Tex.
v
App. B Tyler Oct. 16, 2013, pet. granted) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
State v. Huse, 07-12-00383-CR (Tex.App.—Amarillo 2014)
(not published, cited for persuasive purposes only) . . . . . . . . . . . . . . . . . . . . . . . 40
Tapp v. State, 108 S.W.2d 459 (Tex.App Houston—2003 pet. ref’d ) . . . . . . . . . 40
State v. Villareal, 13-13-253CR (Tex.App.BCorpus
Christi -Edinburg 2014)(affirmed by State v. Villareal,
PD 0306 Tex.Crim.App. Dec 2014) . . . . . . . . . . . . . . . . . .10, 11, 12, 13, 14, 15, 16
17, 22, 23, 24, 25, 27, 28, 30, 32
Sutherland v. State, 07-12-00289-CR (Tex.App.—Amarillo,
April 7, 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 34, 35
Terry v. Ohio, 392 U.S. 1 (1968). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10
Union Pac. R. Co. v. Botsford, 141 U.S. 250, 251 (1891). . . . . . . . . . . . . . . . . . . . . 10
United States v. Montoya de Hernandez, 473 U.S. 531, 537 (1985) . . . . . . . . . . . . .24
Weeks v. United States, 232 U.S. 383, 392 [1913]) . . . . . . . . . . . . . . .. . . . . . . . . . . . 11
Weems v. State, 434 S.W.3d 655 (Tex.App.--San Antonio 2014) . . . . 19, 34, 35, 36
STATUTES AND AUTHORITIES PAGE
Federal
United States Constitution, Amendment IV . . . . . . . . . . . . . . . . . . . . , 10, 33, 34
State
Texas Constitution, Article 1§ 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Tex. Transp. Code Ann. ' 724. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 26, 33, 42
vi
NO. 07-14-00161-CR
IN THE
COURT OF APPEALS
FOR THE
SEVENTH DISTRICT OF TEXAS
AMARILLO, TEXAS
REX ANN BAKER,
APPELLANT
VS
THE STATE OF TEXAS,
APPELLEE
******************
BRIEF FOR THE APPELLANT
******************
TO THE HONORABLE COURT OF APPEALS:
COMES NOW REX ANN BAKER, Appellant, by and through her attorney
of record, KELLY CLARK, and makes and files this, her BRIEF FOR
APPELLANT, and would show this Honorable Court as follows:
PRELIMINARY STATEMENT
This is an appeal from the 137th District Court for Lubbock County, Texas,
the Honorable John McClendon, Judge presiding. Appellant was tried for the
offense of DWI 3rd or More. A jury found Appellant guilty of the charge.
vii
Appellant received seventy eight years of incarceration in the Texas Department of
Criminal Justice from the jury. Id. Appellant did not testify during the trial.
APPELLANT’S POINTS OF ERROR
POINT OF ERROR NUMBER ONE: THE TRIAL COURT ABUSED ITS
DISCRETATION WHEN IT REFUSED TO SUPPRESS THE EVIDENCE
OBTAINED BY LAW ENFORCEMENT CONDUCTING AN ILLEGAL
BLOOD DRAW IN VIOLATION OF APPELLANT’S RIGHT
PROHIBITING UNREASONABLE SEARCHES AND SEIZURES UNDER
THE UNITED STATES CONSTITUTION.
POINT OF ERROR NUMBER TWO: THE TRIAL COURT ABUSED ITS
DISCRETATION WHEN IT REFUSED TO SUPPRESS THE EVIDENCE
OBTAINED BY LAW ENFORCEMENT CONDUCTING AN ILLEGAL
BLOOD DRAW IN VIOLATION OF THE APPELLANT’S RIGHT
PROHIBITING UNREASONABLE SEARCHES AND SEIZURES UNDER
THE TEXAS CONSTITUTION.
POINT OF ERROR NUMBER THREE: THE TRIAL COURT
UNCONSTITUTIONALLY HARMED APPELLANT WHEN IT REFUSED
TO SUPPRESS THE RESULTS OF APPELLANT’S BLOOD ALCOHOL
CONTENT THAT WAS ONLY AVAILABLE AS A RESULT OF A BLOOD
DRAW TAKEN FOR MEDICAL PURPOSES AND PRODUCED INTO
EVIDENCE BY A SHAM GRAND JURY SUBPOENA ISSUED
SUBSEQUENT TO INDICTMENT.
STATEMENT OF FACTS
On April 6, 2013, Trooper Bures of the Texas Department of Public Safety
responded to an automobile accident in
2
the general area of County Road 2800 just south of 2641. Reporter’s Record, Vol.
3 p. 50. When Bures arrived, there was already a deputy from the Lubbock County
Sheriff’s Office at the scene. Reporter’s Record, Vol. 3 p. 50. Bures then assumed
command of the scene as the investigating officer. Reporter’s Record, Vol. 3 p.
50. Appellant was found in the car in the front seat portion with testimony
conflicting as to whether she was in the seat or in the floor board. Appellant was
evaluated at the scene by EMS. Reporter’s Record, Vol. 3 p. 68, 69. Appellant
was transported to University Medical Center Hospital with serious injuries. Id.
Bures did not ride with Appellant in the ambulance, nor did he immediately
follow the ambulance. In one portion of the testimony Officer Bures indicated that
he did not immediately proceed to the hospital. Reporter’s Record, Vol. 3 p. 82.
Testimony conflicted as to the exact amount of time that elapsed between the
ambulance taking Appellant to the hospital and Bures leaving the scene of the
accident. The delay was based on Bures remaining at the scene while the vehicle
Appellant was found in was inventoried. Bures remained at the scene ten to
fifteen minutes despite another law enforcement officer being on scene. Id.
Upon Bures’ arrival at the hospital, he approached medical personnel and
requested to speak to Appellant. Reporter’s Record, Vol. 3 p. 84. He was initially
told that she was in no condition to speak. Id. Bures heard her making comments
about drinking and began to form ideas
3
regarding the need for further investigation into the possibility of intoxication. At
some point during Appellant’s treatment for injuries, Bures returned to his patrol
vehicle, performed a criminal history check on Appellant, and determined that
sufficient priors existed for him to order the medical staff to conduct a mandatory
blood draw pursuant to the Texas Transportation Code Section 724. Bures
returned to the treatment room and instructed Nurse Ryan Temple to conduct a
blood draw pursuant to the statute. Reporter’s Record, Vol. 3 p. 92 During the guilt
innocence phase, Bures testified that when Appellant refused to consent to
providing a sample, he completed a blood draw pursuant to the authority provided
by the mandatory blood draw statute. Reporter’s Record, Vol. 7 p. 81. The
question posed to Bures was asked during trial what he did after Appellant refused
to consent to a draw and he stated, “I went ahead and took the blood for a – did a
mandatory blood draw.” Reporter’s Record, Vol. 7 p. 81. Later Bures testified
that he was concerned that they were giving her fluids/saline and did not know
whether or not she was being given narcotics. Reporter’s Record, Vol. 7 p. 108.
Bures testified that the blood draw taken at his demand was obtained at 8:25 p.m.
The blood draw occurred forty minutes after Bures arrived at the scene of the
accident. Appellant was removed from the car, evaluated by EMS, and taken from
the scene by ambulance to University Medical Center. Bures testified that he
stayed to oversee an inventory of the car
4
for five to ten minutes, then drove to UMC. Bures entered the hospital and sought
contact with Appellant and was refused by medical personnel. Bures went to his
car to conduct a criminal history inquiry and returned to the room to obtain a
mandatory draw as indicated by testimony. Reporter’s Record, Vol. 7 p. 81-86.
Testimony indicated that he was concerned about the compromise of the blood
evidence, he did not know whether she was being given pain killers, and he did not
ask. Reporter’s Record, Vol. 3 p. 93. Bures testified that he did not attempt to get
a warrant to obtain a blood sample but was aware of the methods and means of
obtaining a warrant for blood for a patient a University Medical Center.
Reporter’s Record, Vol. 7 pp. 81, 82, 109. The testimony was clear that Bures did
not attempt to procure a warrant. Bures testified that he had information that it
would take between twenty and thirty minutes to obtain a warrant for Appellant’s
blood. Id. Bures testified that he delayed leaving the scene of the accident to
oversee with the inventory of the vehicle, arrived at the treatment room and asked
permission to converse with Appellant. Bures testified that Appellant was not a
suspect of anything until he reached the hospital and heard her answers and
smelled the alcohol on her breath. Bures then stated that based on a criminal
history check on his in car computer he discovered that Appellant had a history
which formed his basis to obtain a blood sample, but he insisted that the basis of
the blood draw was mostly on exigent
5
circumstance relating to the treatment of Appellant. Reporter’s Record, Vol. 3 pp.
67- 72. Bures testified that he did not investigate if any of his fears regarding the
introduction of medications or fluids that might taint the blood evidence either at
the time of his formation of some belief as to exigent circumstances or afterwards.
Reporter’s Record, Vol. 3 p. 93.
Appellant objected to the use of the blood secured for use in diagnosis
treatment of Appellant in rendering a blood alcohol content for use as evidence at
trial. Reporter’s Record, Vol. 7 pp. 28-32. Testimony showed that the blood
drawn and used for medical treatment was only to be used for medical and not
legal purposes. Reporter’s Record, Vol. 3 p. 50. The prosecution caused to have
issued a grand jury subpoena for the purposes of using the medical blood draw
within the prosecution of Appellant for the offense of DWI. Reporter’s Record,
Vol. 5 p. 26. It appears from the testimony and arguments that the grand jury
subpoena for Appellant’s medical records was issued well after the grand jury
investigation had ended and was in response to an inclination that the mandatory
blood test might fall to a constitutional challenge in light of the holdings in
McNeely. The medical blood draw evidence was used in addition to the blood
sample obtained by the mandatory blood draw statute bolstered by claims of
exigent circumstances.
Summary of the Argument
6
Appellant was involved in a one car accident. Trooper Bures responded to
the accident. Appellant was transported to the hospital by ambulance where she
was treated for serious injuries. Trooper Bures remained on scene for five to ten
minutes then followed Appellant to the hospital. Trooper Bures indicated that
Appellant was not a suspect until statements and evidence arose at the hospital.
Trooper Bures asked for consent to obtain a blood sample. Appellant refused.
Trooper relied on the mandatory blood draw provisions of the Texas
Transportation Code in conjunction with Appellant’s criminal history. Trooper
Bures testified several times that the draw was a mandatory draw. Since the date
of the accident, the mandatory blood draw statute was under great scrutiny. At the
motion to suppress the blood alcohol result obtained as a result of the mandatory
draw, Trooper Bures added a claim of exigent circumstances to support his
rationale from drawing the blood. Appellant argues to this Court that the blood
draw was illegal and the claim by Trooper Bures is not supported by his testimony
or the facts.
Appellant argues that the use of the medical blood sample is constitutionally
impermissible based on a reasonable expectation of privacy in her medical r3cords
and treatment. This Court has ruled contrary to her position. Appellant reqests
that this court re-examine the ruling in a similar case and further consider the
7
distinction between the cases that involve the use of grand jury subpoenas in
manner that appears to make the usage simply a sham upon the trial courts.
ARGUMENT AND AUTHORITIES
POINT OF ERROR NUMBER ONE: THE TRIAL COURT ABUSED ITS
DISCRETATION WHEN IT REFUSED TO SUPPRESS THE EVIDENCE
OBTAINED BY LAW ENFORCEMENT CONDUCTING AN ILLEGAL
BLOOD DRAW IN VIOLATION OF APPELLANT’S RIGHT
PROHIBITING UNREASONABLE SEARCHES AND SEIZURES UNDER
THE UNITED STATES CONSTITUTION.
POINT OF ERROR NUMBER TWO: THE TRIAL COURT ABUSED ITS
DISCRETATION WHEN IT REFUSED TO SUPPRESS THE EVIDENCE
OBTAINED BY LAW ENFORCEMENT CONDUCTING AN ILLEGAL
BLOOD DRAW IN VIOLATION OF THE APPELLANT’S RIGHT
PROHIBITING UNREASONABLE SEARCHES AND SEIZURES UNDER
THE TEXAS CONSTITUTION.
***********
Appellant claims that the conduct of the state actors involved in the
investigation and collection of evidence in this case violated her constitutional rights
on both the federal and state levels. Appellant believes that it is appropriate to
argue the points of error together and does not believe that doing so violates the
prohibition of multifarious arguments within an appellate brief.
************
The law surrounding mandatory blood draws developed rapidly after the
Appellant’s arrest and during the preparation for trial upon the matter. Multiple
8
cases were decided within that State that addressed the constitutionality and effects
of rulings made by the United States Supreme Court in McNeely v. Missouri would
have on the use of the statutes within the Texas Transportation Code mandating
the collection of blood samples when persons believed to be intoxicated met certain
criteria. A review of the decisions leading to the current state of the law is
important because of the light it sheds on the development of the testimony
presented in the matter before the trial court and relied upon in the appeal of this
case.
The Fourth Amendment protects the “right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures."
U.S. Const, amend. IV. "The Fourth Amendment protects people, not places." Terry
v. Ohio, 392 U.S. 1 (1968). The Terry opinion confirms that “[t]his inestimable right
of personal security belongs as much to the citizen on the streets of our cities as to
the homeowner closeted in his study to dispose of his secret affairs." Id. at 8-9. The
Terry Court continued stating, "[W]herever an individual may harbor a reasonable
expectation of privacy, he is entitled to be free from unreasonable governmental
intrusion." Id. at 9. More than a century ago in 1891, the United States Supreme
Court stated that "[n]o right is held more sacred, or is more carefully guarded, by
the common law, than the right of every individual to the possession and control of
his own person, free from all restraint or interference of others, unless by clear and
unquestionable authority of law." Id. (quoting Union Pac. R. Co. v. Botsford, 141
9
U.S. 250, 251 (1891)). The United States Supreme Court has recognized "[t]he
security of one's privacy against arbitrary intrusion by the police as being 'at the
core of the Fourth Amendment' and 'basic to a free society.'" Schmerber v.
California, 384 U.S. 757, 766 (1966) (quoting Wolf v. Colorado, 338 U.S. 25, 27
(1948)). "Of course, the specific content and incidents of this right must be shaped
by the context in which it is asserted." Terry, 392 U.S. at 9. The Terry Court
addressed concerns that the Fourth Amendment would be used in an attempt to
expand the protections contemplated by the Court by expressing, “For what the
Constitution forbids is not all searches and seizures, but unreasonable searches and
seizures." Id. The regularly accepted exceptions to this warrant requirement
include voluntary consent and provable exigent circumstances.
The Thirteenth District Court of Appeals for the State of Texas recently
affirmed a trial court=s decision to suppress evidence obtained in the absence of a
warrant in reliance on the repeat offender statute of the Texas Transportation
Code. In affirming the trial court the Thirteenth Court of Appeals stated, AGiven
the absence of a warrant, the absence of exigent circumstances, and the absence of
consent, we agree with the trial court's conclusion that the State failed to
demonstrate that the involuntary blood draw was reasonable under the Fourth
Amendment or that an exception to the Fourth Amendment's warrant requirement
is applicable to this case, as was its burden.” State v. Villareal, 13-13-253CR
(Tex.App.BCorpus Christi -Edinburg 2014)(affirmed by State v. Villareal, PD 0306-
10
14 (Tex.Crim.App. Dec 2014). The Thirteenth Court ruled in this manner in a case
involving a driver suspected of DWI with multiple previous convictions stating, “In
this case, as will often be true when charges of driving under the influence of alcohol
are pressed, these [Fourth Amendment issues] . . . arise in the context of an arrest
made by an officer without a warrant." State v. Villareal, 13-13-253CR
(Tex.App.BCorpus Christi -Edinburg 2014)(affirmed by State v. Villareal, PD 0306-
14 (Tex.Crim.App. Dec 2014)(citing Schmerber, 384 U.S. at 768). The Villareal
Court acknowledged, AHere, there is no dispute that there was "probable cause for
the officer to arrest . . . [appellee] and charge him with DWI." Id. The Thirteenth
Court acknowledged that the trial court specifically found "credible Officer
Williams' testimony that the Defendant appeared to be intoxicated based on his red
watery eyes, slurred speech, and swaying back and forth." Id.
"[E]arly cases suggest that there is an unrestricted 'right on the part of the
government always recognized under English and American law, to search the
person of the accused when legally arrested, to discover and seize the fruits or
evidences of crime.'" State v. Villareal, 13-13-253 CR (Tex.App.BCorpus Christi -
Edinburg 2014)(affirmed by the Texas Court of Criminal Appeals PD-0306-14)
(quoting Weeks v. United States, 232 U.S. 383, 392 [1913]) (citing People v. Chiagles,
142 N.E. 583, 584 (1923). Villareal acknowledged the concept that, "[t]he mere fact
of a lawful arrest does not end our inquiry." State v. Villareal, 13-13-253CR
(Tex.App.BCorpus Christi-Edinburg 2014) (affirmed by the Texas Court of
11
Criminal Appeals PD-0306-14). The Villareal Court went on to analyze searches
that appear to result from the mere arrest of a person who has been arrested for a
DWI with the additional facts that there has been an indication to the officers that
multiple previous DWI convictions of the suspect exist stating, “The suggestion of
these cases apparently rests on two factors. . . >[F]irst, there may be more immediate
danger of concealed weapons or of destruction of evidence under the direct control
of the accused.=@ Id. (citing United States v. Rabinowitz, 339 U.S. 56, 72-73 (1950)
(Frankfurter, J., dissenting)). The Villareal Court went on to include, "Second, once
a search of the arrested person for weapons is permitted, it would be both
impractical and unnecessary to enforcement of the Fourth Amendment's purpose to
attempt to confine the search to those objects alone." State v. Villareal, 13-13-253CR
(Tex.App.BCorpus Christi -Edinburg 2014)(affirmed by State v. Villareal, PD 0306-
14 (Tex.Crim.App. Dec 2014). (citing Chiagles, 142 N.E. at 584). Having conducted
that analysis, the Villareal Court then opined: "Whatever the validity of these
considerations in general, they have little applicability with respect to searches
involving intrusions beyond the body's surface." State v. Villareal, 13-13-253CR
(Tex.App.BCorpus Christi -Edinburg 2014)(citations omitted) (affirmed by the
Texas Court of Criminal Appeals PD-0306-14).
“Mandatory administration of a blood test . . . plainly involves the broad
apparent reach of a search and seizure under the United States Constitution=s
Fourth Amendment.” State v. Villareal, 13-13-253CR (Tex.App.BCorpus Christi -
12
Edinburg 2014) (affirmed by the Texas Court of Criminal Appeals PD-0306-14).
AThe important interests in human dignity and privacy protected by the Fourth
Amendment prohibit any such intrusions on the mere chance that desired evidence
might be obtained." State v. Villareal, 13-13-253CR (Tex.App.BCorpus Christi -
Edinburg 2014) (affirmed by the Texas Court of Criminal Appeals PD-0306-14).
The Villareal Court went further explaining that the demand for exigent
circumstances does not disappear with the mere presence of a state statute implying
consent opining that, “In the absence of a clear indication that in fact such evidence
will be found, these fundamental human interests require law officers to suffer the
risk that such evidence may disappear unless there is an immediate search." State v.
Villareal, 13-13-253CR (Tex.App.BCorpus Christi -Edinburg 2014)(citations
omitted) (affirmed by the Texas Court of Criminal Appeals PD-0306-14).
Appellant does not expect that the State will argue that the administration of
the blood test in this case was free of the constraints of the Fourth Amendment.
Even the tests contemplated by the Texas Transportation Code plainly constitute
searches of 'persons,' and depend initially upon seizures by arrest of ‘persons’
within the meaning of the Fourth Amendment. The Villareal Court stated,
"Because we are dealing with intrusions into the human body rather than with state
interferences with property relationships or private papersC 'houses, papers, and
effects'C[the United States Supreme Court has] . . . writ[t]e[n] on a clean slate."
State v. Villareal, 13-13-253CR (Tex.App.BCorpus Christi -Edinburg 2014)(affirmed
13
by State v. Villareal, PD 0306-14 (Tex.Crim.App. Dec 2014)(citations omitted). AThe
Fourth Amendment's proper function is to constrain, not against all intrusions as
such, but against intrusions which are not justified in the circumstances, or which
are made in an improper manner." Id.(citations omitted). The Texas Court of
Criminal Appeals explicitly held that the mandatory blood draws were
unconstitutional and did not create a legislative exemption to the right of the people
to be free from unreasonable searches or seizures under the federal and Texas
Constitutions. State v. Villareal, PD 03056-14 (Tex.Crim.App. Dec 2014)(affirming
State v. Villareal, 13-13-253CR (Tex.App --Corpus Christi --Edinburg. 2014)).
As in Villareal, while the facts which established probable cause to arrest in
this case also suggested the required relevance and likely success of a test of
appellee's blood for alcohol, the question remains whether the arresting officer was
permitted to draw these inferences himself or he was required instead to procure a
warrant before proceeding with the test. "Search warrants are ordinarily required
for searches of dwellings, and absent an emergency, no less could be required where
intrusions into the human body are concerned." State v. Villareal, 13-13-253CR
(Tex.App.BCorpus Christi -Edinburg 2014)(affirmed by the Texas Court of
Criminal Appeals PD-0306-14). The Fourth Amendment to the United States
Constitution is clear as to the requirement “that a warrant be obtained [and] that
inferences to support the search be drawn by a neutral and detached magistrate
instead of being judged by the officer engaged in the often competitive enterprise of
14
ferreting out crime." Id. "The importance of informed, detached and deliberate
determinations of the issue whether or not to invade another's body in search of
evidence of guilt is indisputable and great." Id. (citations omitted).
The Texas Court of Criminal Appeals stated that, “[s]earches conducted
pursuant to a warrant will rarely require any deep inquiry into reasonableness."
Beeman v. State, 86 S.W.3d 613 (Tex. Crim. App. 2002). The Texas Court of
Criminal Appeals has "made clear that drawing the suspect's blood pursuant to a
search warrant [does]. . . not. . . offend[] the Constitution." State v. Villareal, 13-13-
253CR (Tex.App.BCorpus Christi -Edinburg 2014)(citing Beeman v. State, 86
S.W.3d 613 (Tex. Crim. App. 2002) (affirmed by the Texas Court of Criminal
Appeals PD-0306-14). Villareal also opined that “[a] warrant assures the citizen that
the intrusion is authorized by law, and that it is narrowly limited in its objectives
and scope." State v. Villareal, 13-13-253CR (Tex.App.BCorpus Christi -Edinburg
2014) (affirmed by the Texas Court of Criminal Appeals PD-0306-14)(citing Skinner
v. Railway. Labor Executives' Ass'n, 489 U.S. 602, 622 (1989). "A warrant also
provides the detached scrutiny of a neutral magistrate, and thus ensures an
objective determination whether an intrusion is justified in any given case." Id.
Similar to Villareal, in this case, there was no warrant; however, "the
warrant requirement is subject to exceptions." State v. Villareal, 13-13-253CR
(Tex.App.BCorpus Christi -Edinburg 2014) (affirmed by the Texas Court of
Criminal Appeals PD-0306-14) (citing Missouri v. McNeely, 133 S. Ct. 1552, 1558
15
(2013). The United States Supreme Court has recognized only certain limited
exceptions that trump the freedom and liberty of an individual to "[t]he integrity of
an individual's person"C"a cherished value of our society." Schmerber v. California,
384 U.S. 757 (1966) ("Search warrants are ordinarily required for searches of
dwellings, and absent an emergency, no less could be required where intrusions into
the human body are concerned.") The United States Supreme Court recently
restated that “[s]uch an invasion of bodily integrity implicates an individual's 'most
personal and deep-rooted expectations of privacy.'" Missouri v. McNeely, 133 S. Ct.
1552, 1558 (2013)(quoting Winston v. Lee, 470 U.S. 753, 760 (1985)). Villareal
acknowledged that drunk driving was a serious problem stating that "[n]o one can
seriously dispute the magnitude of the drunken driving problem or the States'
interest in eradicating it." State v. Villareal, 13-13-253CR (Tex.App.BCorpus Christi
-Edinburg 2014)(affirmed by State v. Villareal, PD 0306-14 (Tex.Crim.App. Dec
2014). (quoting, Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 451 (1990).
Villareal echoed the concern expressing, “Certainly we do not." State v. Villareal,
13-13-253CR (Tex.App.BCorpus Christi -Edinburg 2014) (affirmed by the Texas
Court of Criminal Appeals PD-0306-14) (citing McNeely, 133 S. Ct. at 1565.) "While
some progress has been made, drunk driving continues to exact a terrible toll on our
society." Id. "But the general importance of the government's interest in this area
does not justify departing from the warrant requirement without showing exigent
circumstances that make securing a warrant impractical in a particular case." Id.
16
AWhether a warrantless blood test of a drunk-driving suspect is reasonable
must be determined case by case based on the totality of the circumstances."
Missouri v. McNeely, 133 S. Ct. 1552 (2013). In Schmerber, the United States
Supreme Court held that a police officer "might reasonably have believed that he
was confronted with an emergency, in which the delay necessary to obtain a
warrant, under the circumstances, threatened the destruction of evidence."
Schmerber v. California, 384 U.S. 757 (1966). The officer might believe that "there
are special circumstances . . . [and] no time to seek out a magistrate and secure a
warrant." Id. at 771. If so, then under the precedent of the United States Supreme
Court, the Court would be "satisfied that the test chosen to measure . . . appellee's
blood-alcohol level was a reasonable one." Id. Extraction of blood samples for
testing is a highly effective means of determining the degree to which a person is
under the influence of alcohol. Id. However, it bears repeating "[t]hat . . . [the
United States Supreme Court has held] that the Constitution does not forbid the
States minor intrusions into an individual's body under stringently limited
conditions in no way indicates that it permits more substantial intrusions, or
intrusions under other conditions." Id. emphasis added).
The Fourteenth Court of Appeals revisited the matter in Douds v. State, 14-
12-00642 CR (Tex. App.—Houston(14th Dist June 5, 2014)(unpublished cited for
persuasive purposes only)(rehearing en banc) The matter was originally
undertaken prior to the decision rendered by the United States Supreme Court in
17
the matter of Missouri v. McNeely, 133 S. Ct. 1552 (2013). In the opinion, the court
was very clear that the absence of exigent circumstances or other acceptable
exceptions to the warrant requirement would render the evidence seized in violation
of a defendant’s constitutional rights inadmissible under Texas law. Additionally in
Douds, the Court discussed the elapse of time between the accident investigation’s
conclusion and the time of the transportation from the scene and completion of the
blood draws and found any explanation to support a warrant exception lacking. Id.
In the matter of Salazar v. State, 12-13-00192 (Tex.App-Tyler August 29,
2014) (unpublished cited for persuasive purposes only) the defendant was charged
with DWI after an officer discovered the defendant in a car which had been driven
through a fence and into a pasture. The officers determined that the defendant had
at least two prior convictions for DWI. The officers conducted a mandatory blood
draw in compliance with Chapter 724 of the Texas Transportation Code. The Tyler
Court held that a lack of explanation of effort to obtain a warrant in the absence of
recognized exceptions to the warrant requirement was fatal to the admission of the
evidence. Salazar v. State, 12-13-00192 (Tex.App-Tyler August 29,
2014)(unpublished cited for persuasive purposes only). The Salazar Court stated,
“In the instant case, the State relied solely on Section 724 and offered no evidence of
any other recognized exception to the Fourth Amendment that would have
permitted it to have Appellant's blood drawn without a warrant. Id. Accordingly,
we hold that the trial court abused its discretion in denying Appellant's motion to
18
suppress.” Salazar v. State, 12-13-00192 (Tex.App-Tyler August 29, 2014)(
unpublished cited for persuasive purposes only). The Salazar court provided
references to the state of the law in Texas stating,
We recently addressed an issue similar to Appellant's sole
issue in Gentry v. State. There, we considered the analyses
of several of our sister courts of appeals and likewise held
that (1) the implied consent and mandatory blood draw
statutory schemes found in the transportation code are
not exceptions to the warrant requirement under the
Fourth Amendment and (2) to be authorized, the state's
warrantless blood draw must be based on a well-
recognized exception to the Fourth Amendment. See id.,
slip op. at 5–6 (citing Aviles v. State, No. 04-11-00877-CR,
2014 WL 3843756, at *2–3 (Tex. App.–San Antonio Aug.
6, 2014, pet. filed) (op., not designated for publication);
State v. Ballard, No. 11-13-00224-CR, 2014 WL 3865815,
at *3 (Tex. App.–Eastland July 31, 2014, no pet. h.) (mem
op., not designated for publication); Weems v. State, No.
04-13-00366-CR, 2014 WL 2532299, at *8 (Tex. App.–San
Antonio May 14, 2014, pet. filed) (op., not designated for
publication); Sutherland v. State, No. 07-12-00289-CR,
2014 WL 1370118, at *1–2 (Tex. App.–Amarillo Apr. 7,
2014, pet. filed) (op., not designated for publication); State
v. Villarreal, No. 13–13–00253–CR, 2014 WL 1257150, at
*11 (Tex. App.– Corpus Christi Jan. 23, 2014, pet.
granted) (op., not designated for publication); see also
Aviles v. Texas, 134 S. Ct. 902, 187 L. Ed. 2d 767 (2014).
Salazar v. State, 12-13-00192 (Tex.App-Tyler August 29, 2014)(unpublished cited for
persuasive purposes only).
As the testimony based on police reports reflect in the matter before this
honorable Court, an attempt was made to demonstrate a recognized exception to the
warrant requirement, that of an exigent circumstance, , but no reference to the
19
existence of the exigent circumstances was made until the testimony of the trooper
elicited at the Motion to Suppress hearing. Multiple officers were present to
investigate the accident and secure any warrant that was needed to obtain the blood
draw. The testimony at trial indicates only a five or ten minute delay in Trooper
Bures following Defendant to the hospital where the draw could occur, and further,
no delays at the hospital in drawing the blood upon the demand of Trooper Bures
were proven. The testimony relying on reports and call sheets indicate that
Trooper Bures arrived on scene of the accident at 7:45 p.m. Appellant was
transported to the hospital at around 7:55 p.m., and the blood draw was completed
at 8:25 p.m. Reporter’s Record, Vol. 7 p. 84. It would be counter-intuitive for the
prosecution to claim that delays caused by accident investigation or hospital delays
created exigent circumstances that would allow for the blood draw without a
warrant. Testimony revealed that the University Medical Center emergency room
facility is equipped with office equipment or forms to allow for an expedient
completion of the affidavits and requests for a search warrant to be transmitted to a
local judge or magistrate able to grant a search warrant upon presentation of
probable cause. The occurrences in this case demonstrated that the officers failed to
seek and secure a search warrant and no facts exist that fulfill the requirements of a
recognized exception to the warrant requirement.
The state, in this case, must stipulate that there was no consent as set forth in
the testimony and no warrant for the blood draw in this case. Therefore, the burden
20
of proof shifts to the State to establish that the involuntary blood draw was
reasonable under a recognized exception to the Fourth Amendment's warrant
requirement. Kelly v. State, 204 S.W.3d at 808, 819 n.22 ("[Once] appellee carried
this initial burden, . . . the prosecution . . . assumed the burden of proof with the risk
of nonpersuasion"); Ford, 158 S.W.3d at 492. The Texas Court of Criminal
Appeals has recently opined that the mandatory blood draw statute contained
within §724 of the Texas Transportation Code is unconstitutional and reliance on
that statute will not salvage an unconstitutional search even conducted in good faith
reliance on the statute. State v. Villareal, PD 0306-14 (Tex.Crim.App. Dec 2014).
In this case, in light of the recent Villareal opinion, the State will not likely
argue that it meets its burden and that the trial court properly denied Appellant’s
motion to suppress because it established that the blood draw was performed
pursuant to the repeat offender provision or the transportation of another for
medical treatment provision of the mandatory blood draw law, Section 724.012 of
the Texas Transportation Code, which provides in relevant part as follows:
(b) A peace officer shall require the taking of a specimen of the person's
breath or blood under any of the following circumstances If the officer arrests the
person for an offense under Chapter 49, Penal Code, involving the operation of a
motor vehicle or a watercraft and the person refuses the officer's request to submit
to the taking of a specimen voluntarily:
(1) the person was the operator of a motor vehicle or watercraft involved in
21
an accident that the officer reasonably believes occurred as a result of the offense
and
(C) an individual other than the person has suffered bodily injury and been
transported to a hospital or other medical facility for medical treatment
(3) at the time of the arrest, the officer possesses or receives reliable
information from a credible source that the person . . .
(B) on two or more occasions, has been previously convicted of or placed on
community supervision for an offense under Section 49.04, 49.05, 49.06, or 49.065,
Penal Code, or an offense under the laws of another state containing elements
substantially similar to the elements of an offense under those sections. Tex.
Transp. Code Ann. ' 724.012(b)(3)(B) (emphasis added).
The state must base its argument on the claim of exigent circumstances
arising from possible medical treatment provided to Appellant under the judgment
of medical personnel that were caring for Appellant on the night of the event. The
testimony was clear at the pretrial suppression motion that Trooper returned to his
car to run a criminal history check and then returned to the emergency room and
ordered the medical personnel to collect a blood sample under the authority of the
mandatory blood draw statute. Only after a similar search was conducted in the
McNeely case and addressed by the United States Supreme Court, did Trooper
Bures modify his rationale for collecting the blood sample and claim it was a
recognized exception to the warrant requirement as a seizure in the light of exigent
22
circumstances. At both the suppression hearing and the guilt innocence phase of the
trial, testimony showed that Trooper Bures ordered the medical personnel to draw
the blood based on the mandatory blood draw statute but later addressed his
concern for exigent circumstance; however, the veracity of his claim fails in that at
the suppression hearing Trooper Bures claims to have been concerned about the
introduction of narcotics into the blood stream and the effects on future testing, but
at the guilt innocence phase the exigency arose from the introduction of additional
fluids that would presumptively dilute the BAC in Appellant’s blood. The
generation of exigent circumstance months after the reports were written and while
ample time existed for the trooper to supplement his report with his concerns about
the exigencies of the night created by medical treatments, demonstrate that varying
reasons for the exigency, were a direct result of the McNeely case and its progeny
that would prevent the use of the unconstitutional blood draw (seizure) conducted
upon Appellant. To hold that the Fourth Amendment is applicable to the drug
and alcohol testing prescribed by the repeat offender provision of the mandatory
blood draw law "is only to begin the inquiry into the standards governing such
intrusions." State v. Villareal, 13-13-253CR (Tex.App.BCorpus Christi -Edinburg
2014)(affirmed by State v. Villareal, PD 0306-14 (Tex.Crim.App. Dec 2014). (citing
Skinner, 489 U.S. at 618-19). "For the Fourth Amendment does not proscribe all
searches and seizures, but only those that are unreasonable." Id. "What is
reasonable, of course, 'depends on all of the circumstances surrounding the search
23
or seizure and the nature of the search or seizure itself.'" Id. (citing United States v.
Montoya de Hernandez, 473 U.S. 531, 537 (1985)). "Thus, the permissibility of a
particular practice 'is judged by balancing its intrusion on the individual's Fourth
Amendment interests against its promotion of legitimate governmental interests."
State v. Villareal, 13-13-253CR (Tex.App.BCorpus Christi -Edinburg 2014)(affirmed
by State v. Villareal, PD 0306-14 (Tex.Crim.App. Dec 2014). (quoting Delaware v.
Prouse, 440 U.S. 648, 654(1979)).
"In most criminal cases, we strike this balance in favor of the procedures
described by the Warrant Clause of the Fourth Amendment." Id. "Except in certain
well-defined circumstances, a search or seizure in such a case is not reasonable
unless it is accomplished pursuant to a judicial warrant issued upon probable
cause." Id. The United States Supreme Court has "recognized exceptions to this
rule, however, “when 'special needs’, beyond the normal need for law enforcement,
make the warrant and probable-cause requirement impracticable.'" Id. (quoting
Griffin v. Wisconsin, 483 U.S. 868, 873 (1987)). "When faced with such special needs,
. . . [the Court has] not hesitated to balance the governmental and privacy interests
to assess the practicality of the warrant and probable-cause requirements in the
particular context." Id. The government's interest in regulating the operation of
motor vehicles on public roadways to ensure safety, like its interest in the
supervision of railroad employees, probationers, regulated industries, and its
operation of a government office, school, or prison, "likewise presents 'special
24
needs' beyond normal law enforcement that may justify departures from the usual
warrant and probable-cause requirements." State v. Villareal, 13-13-253CR
(Tex.App.BCorpus Christi -Edinburg 2014)(affirmed by State v. Villareal, PD 0306-
14 (Tex.Crim.App. Dec 2014). (citations omitted).
Another of the established exceptions to the requirements of both a warrant
and probable cause is when valid consent to conduct the search has been granted.
State v. Villareal, 13-13-253CR (Tex.App.BCorpus Christi -Edinburg 2014)(affirmed
by State v. Villareal, PD 0306-14 (Tex.Crim.App. Dec 2014)(citing Schneckloth v.
Bustamonte, 412 U.S. 218 (1973). The Texas Court of Criminal Appeals has
recognized that "[t]he implied consent law ... is another method of conducting a
constitutionally valid search." State v. Villareal, 13-13-253CR (Tex.App.BCorpus
Christi -Edinburg 2014)(affirmed by State v. Villareal, PD 0306-14 (Tex.Crim.App.
Dec 2014))(citing Beeman, 86 S.W.3d at 615.) "The implied consent law expands on
the State's search capabilities by providing a framework for drawing DWI suspects'
blood in the absence of a search warrant." Referring to the mandatory blood draw
statute the Texas Court of Criminal Appeals declared, "It gives officers an
additional weapon in their investigative arsenal, enabling them to draw blood in
certain limited circumstances even without a search warrant." Beeman, 86 S.W.3d
613, 615 (Tex.Crim.AppB2002)(citations omitted). In relevant part, the implied
consent statute provides as follows: If a person is arrested for an offense arising out
of acts alleged to have been committed while the person was operating a motor
25
vehicle in a public place, or a watercraft, while intoxicated, or an offense under
Section 106.041, Alcoholic Beverage Code, the person is deemed to have consented,
subject to this chapter, to submit to the taking of one or more specimens of the
person's breath or blood for analysis to determine the alcohol concentration or the
presence in the person's body of a controlled substance, drug, dangerous drug, or
other substance. Tex. Transp. Code Ann. ' 724.011(a) (West 2011). As the Texas
Court of Criminal Appeals has explained, "[t]he implied consent law does just
thatCit implies a suspect's consent to a search in certain instances." Beeman, 86
S.W.3d at 615. It is also clear from the evidence presented in this case that
Appellant clearly and definitively withdrew that consent.
The statute provides for implied consent in every circumstance in which a
suspect is arrested for DWI. See Tex. Transp. Code Ann. ' 724.011(a). This statute
“does not give officers the ability to forcibly obtain blood samples from anyone
arrested for DWI." Beeman, 86 S.W.3d at 616. The statute expresses that "[e]xcept
as provided by Section 724.012(b), a specimen may not be taken if a person refuses
to submit to the taking of a specimen designated by a peace officer." Tex. Transp.
Code Ann. ' 724.013 (West 2011). The relevant language in Section 724.012(b)
authorizes and, in fact, requires an officer to take a breath or blood sample if a
person is arrested for DWI, has two or more prior convictions, and refuses to
voluntarily consent to the officer's request to take a breath or blood sample. State v.
Villareal, 13-13-253CR (Tex.App.BCorpus Christi -Edinburg 2014)(affirmed by
26
State v. Villareal, PD 0306-14 (Tex.Crim.App. Dec 2014). That statute has now been
declared unconstitutional by the Texas Court of Criminal Appeals in State v.
Villareal, PD 0306-14 (Tex.Crim.App. Dec 2014).
After stipulating that there was no consent, the State can no longer argue that
Chapter 724 creates a legislatively valid consent or essentially a statutory waiver of
the Fourth Amendment. See State v. Villareal, PD 0306-14 (Tex.Crim.App. Dec
2014). The State cannot claim that this legislatively created consent cannot be
withdrawn or withheld by certain individual suspects, such as this defendant, who
have two or more prior convictions for DWI or persons who have been involved in
an accident in which another person has chosen to seek medical treatment. Id. To
accept this premise would be to deem that the Legislature has the ultimate control
over an individual's ability to consent to a warrantless blood draw, in direct
contradiction to Aviles, and it has made a decision categorically and conclusively on
behalf of all those individuals who have two or more prior convictions for DWI or
involved in an accident in which a person chooses to seek medical treatment such
that those individuals have no right to refuse to consent which has been prohibited
by the Court of Criminal Appeals ruling in Villareal. State v. Villareal, PD 0306-14
(Tex.Crim.App. Dec 2014).
Defendant acknowledges that the McNeely Court and the Villareal lower
court demonstrated concern that the drunk driving problem is a national epidemic,
and the legal tools in the police's crime-fighting arsenal must keep pace with the
27
danger posed to the public. State v. Villareal, 13-13-253CR (Tex.App.BCorpus
Christi -Edinburg 2014)(affirmed by State v. Villareal, PD 0306-14 (Tex.Crim.App.
Dec 2014)). Defendant realizes that the repeat offender provision of the mandatory
blood draw would allow police to obtain scientific evidence that could be of
tremendous value to law enforcement and to the State in establishing the guilt of an
accused. Regardless of the benefit that the statute provides, Defendant relies upon
the language of the United State Supreme Court when it said, "But the general
importance of the government's interest in this area does not justify departing from
the warrant requirement without showing exigent circumstances that make securing
a warrant impractical in a particular case." State v. Villareal, 13-13-253CR
(Tex.App.BCorpus Christi -Edinburg 2014)(affirmed by State v. Villareal, PD 0306-
14 (Tex.Crim.App. Dec 2014))(citing McNeely, 133 S. Ct. at 1565). The Texas Court
of Criminal Appeals in Villareal held that the mandatory draw was unconstitutional
in the absence of another recognized exception to the warrant requirement. State v.
Villareal, PD 0306-14 (Tex.Crim.App. Dec 2014).
In sum, Defendant accepts arguendo for the purpose of the motion to
suppress that, in this case, there were the some of the usual signs that are generally
associated with intoxication, such as smelling strongly of intoxicants and a rollover
automobile accident, from which a reasonable officer could have inferred probable
cause to believe that intoxication may be present and the offense of DWI may have
been committed. There was some likelihood based on the above assumptions,
28
accepted arguendo, that probable cause was arguably present and that the officer
could have gotten a warrant for the blood draw, but there were no exigent
circumstances supported by Bures inconsistent testimony that would have
prevented him from getting a warrant. State v. Villareal, 13-13-253CR
(Tex.App.BCorpus Christi -Edinburg 2014)(citing McNeely, 133 S. Ct. at 1565. AIn
those drunk-driving investigations where police officers can reasonably obtain a
warrant before a blood sample can be drawn without significantly undermining the
efficacy of the search, the Fourth Amendment mandates that they do so." Id.
Additionally in State v. Baker, the 6th Court of Appeals stated the following,
A[w]ithout any other evidence of exigent circumstances, such as evidence that it
would take too long to procure a warrant under these circumstances, the trial court
could have reasonably concluded that the State failed to show that the warrantless
blood draw was supported by exigent circumstances. State v. Baker, 12-12-00092-
CR, 2013 WL 5657649 (Tex. App. B Tyler Oct. 16, 2013, pet. granted)(citing
McNeely, 133 S. Ct. at 1565)(emphasis added). The fact that Bures indicated that he
believed it would take twenty to thirty minutes to obtain a warrant and he made no
effort to obtain a warrant but procured a sample under the authority of the
mandatory blood draw statute in only forty minutes from the time of his arrival on
the scene of the accident does not support a claim of exigent circumstance. See
Reporter’s Record, Vol 7. pp. 81, 84.
The officer's sole basis, as contained within the report, for not getting a
29
warrant was that the repeat offender provision or the person of another being
transported for medical treatment provision of the mandatory blood draw law
required him to take a blood sample in the absence of defendant=s consent and
without the necessity of obtaining a search warrant. See Tex. Transp. Code Ann. '
724.012(b). The Salazar Court stated, “In the instant case, the State relied solely on
Section 724 and offered no evidence of any other recognized exception to the Fourth
Amendment that would have permitted it to have Appellant's blood drawn without
a warrant. Accordingly, we hold that the trial court abused its discretion in denying
Appellant's motion to suppress.” Salazar v. State, 12-13-00192 (Tex.App-Tyler
August 29, 2014 unpublished cited for persuasive purposes only). The same result
must occur under the facts of this case wherein the testimony of the officer clearly
indicated that he was only moments behind Appellant leaving the scene, had time to
visit his car and conduct a criminal history check and the order the medical
personnel to obtain a mandatory blood draw, but later at the suppression hearing
and trial, Trooper Bures claimed exigent circumstances, albeit, different ones
during live testimony. It is unfathomable that the officer did not include the
exigencies in his report, but was able to dredge them up from his memory after the
constitutionality of the mandatory blood draw teetered on the precipice and since
then has been conclusively determined to be unconstitutional by the Texas Court of
Criminal Appeals. State v. Villareal, PD 0306-14 (Tex.Crim.App. Dec 2014).
Even though it appears that the statute required the officer to obtain a breath
30
or blood sample, it did not require the officer to do so without first obtaining a
warrant. State v. Villareal, 13-13-253CR (Tex.App.BCorpus Christi -Edinburg
2014)(affirmed by State v. Villareal, PD 0306-14 (Tex.Crim.App. Dec 2014).
Actually, the statute does not address or purport to dispense with the Fourth
Amendment's warrant requirement for blood draws. State v. Villareal, 13-13-
253CR (Tex.App.BCorpus Christi -Edinburg 2014) )(affirmed by State v. Villareal,
PD 0306-14 (Tex.Crim.App. Dec 2014). Furthermore, Appellant would argue
under McNeely and Villareal that there was no valid "consent" under the Fourth
AmendmentCwhether by the mandatory blood draw law or the implied consent
lawC and a mandatory blood draw is barred because "[t]here was no consent, no
warrant." State v. Villareal, PD 0306-14 (Tex.Crim.App. Dec 2014).
To date, neither the United States Supreme Court nor the Texas Court of
Criminal Appeals has recognized the repeat offender or transportation of an
involved party to the hospital provision of the mandatory blood draw law,
referenced, as a new exception to the Fourth Amendment's warrant requirement
separate and apart from the consent exception and the exception for exigent
circumstances. In Beeman, the Texas Court of Criminal Appeals recognized that
these laws do not give police officers anything "more than [what] the Constitution
already gives them." Beeman, 86 S.W.3d 613(Tex.Crim.App.B2002). Accordingly,
this court must conclude that the constitutionality of the repeat offender or
transportation of another for treatment provision of the mandatory blood draw law
31
must be conducted in conformance with the previously recognized exceptions to the
Fourth Amendment's warrant requirement.
Here, based on the reports completed by law enforcement officers and
supplied to the defendant by the State as well as testimony elicited at trial, "there
was no consent." Further, there was nothing stopping the officer from obtaining a
warrant other than his unwillingness to even expend the effort. The officer did not
investigate whether any medications had been given to or were anticipated to be
given to Appellant that would skew or adversely effect a blood draw that could be
obtained from Appellant by a search and seizure warrant issued by a neutral
magistrate that could have been secured by the equipment available to the trooper
at the hospital There were no exigent circumstances present that would pass
constitutional muster in the absence of any effort by the trooper to timely obtain a
warrant. . The reports created by the officers and the hospital indicate that
Appellant was involved in an accident that occurred at approximately 7:30 o’clock
in the evening. Medical reports indicated that Appellant was transported by EMS to
the hospital. The testimony indicates that the trooper followed relatively soon after
Appellant was transported by EMS and that law enforcement arrived at the hospital
shortly thereafter,. and after waiting a while for medical personnel to continue the
medical evaluation and treatment of Appellant, the trooper took the time to return
to his vehicle and conducted the criminal history search to satisfy the requirements
of Texas Transportation Code §724 that provided for the mandatory blood draw.
32
This would indicate that no effort to obtain a warrant was made, but further, that
the time elapsed from the trooper’s presence in the emergency room at the hospital
until he was able to establish the criminal history of Appellant was ample time to at
least try and secure a warrant. If the trooper candidly believed that exigent
circumstances existed, he would have been justified in acting without the effort of
satisfying §724 of the Texas Transportation Code and would have proceeded to
secure the sample based solely on the existence of exigent circumstances. Appellant
believes there are key distinctions between this case and other cases involving
warrantless blood draws based on exigent circumstances. Given the absence of a
warrant, the absence of exigent circumstances, and the absence of consent, this
court must agree with the Court=s decision in Villareal that the State failed to
demonstrate that the involuntary blood draw was reasonable under the Fourth
Amendment or that an exception to the Fourth Amendment's warrant requirement
is applicable to this case, as was its burden. See U.S. Const, amend. IV; State v.
Villareal, 13-13-253CR (Tex.App.BCorpus Christi -Edinburg 2014)(affirmed by
State v. Villareal, PD 0306-14 (Tex.Crim.App. Dec 2014)); State v. Villareal, PD 0306-
14 (Tex.Crim.App. Dec 2014)
Based on the testimony about reports completed by law enforcement officers
and supplied to the Appellant by the State, there was no consent. Nothing
prevented Trooper Bures from obtaining a warrant. There were no verified exigent.
The reports created indicate that Appellant was involved in a motor vehicle
33
accident. The reports further demonstrate that the officers were not rushed or
involved in hectic activity at the location discounting any claim or indication of
exigent circumstances and Appellant was closely followed to the hospital by law
enforcement with only minimal delay. No effort to obtain a warrant was made and
no reasonable claim of the presence of exigent circumstances can be validated,
especially since the testimony verifies that the amount of time that passed between
Bures arrival on the scene of the accident and the time of the “mandatory” blood
draw was only forty minutes. Given the absence of a warrant, the absence of
exigent circumstances, and the absence of consent, this Court must agree with the
Courts’ decisions in Villareal, Sutherland, and Weems that the State failed to
demonstrate that the involuntary blood draw was reasonable under the Fourth
Amendment or that an exception to the Fourth Amendment's warrant requirement
is applicable to this case, as was its burden. See U.S. Const, amend. IV; State v.
Villareal, 13-13-253CR (Tex.App.BCorpus Christi -Edinburg 2014)(affirmed by
State v. Villareal, PD 0306-14 (Tex.Crim.App. Dec 2014); Sutherland v. State, 07-12-
00289-CR (Tex.App.—Amarillo, April 7, 2014); Weems v. State, 434 S.W.3d 04-13-
00366-CR (Tex.App.—San Antonio, (May 14, 2014); Salazar v. State, 12-13-00192
(Tex.App-Tyler August 29, 2014)(unpublished cited for persuasive purposes only);
Douds v. State, 14-12-00642-CR (Tex. App. Houston [14th Dist] June 5, 2014).
Recently, the Seventh Court of Appeals rendered a decision opining that the
implied consent provision of the statutes providing for mandatory blood draws and
34
implied consent law is unconstitutional and the Texas Court of Criminal Appeals
likewise held it to be unconstitutional in Villarreal. Sutherland v. State, 07-12-00289-
CR (Tex.App.—Amarillo, April 7, 2014); State v. Villareal, PD 0306-14
(Tex.Crim.App. Dec 2014). Additionally on May 14, 2014, the Fourth Court of
Appeals in San Antonio issued an opinion in the matter of Weems v. State, 434
S.W.3d 655 (Tex.App.--San Antonio 2014). The opinion in Weems also opined that
the implied consent search conducted on the defendant was not constitutionally
permissible based on McNeely, Aviles, and Sutherland. Weems v. State, 434 S.W.3d
655 (Tex.App.--San Antonio 2014); citing Missouri v. McNeely, 133 S. Ct. 1552
(2013); Aviles v. State, 385 S.W.3d 110, 116 (Tex. App.— San Antonio 2012),
vacated, 134 S. Ct. 902 (2014), Sutherland v. State, 07-12-00289-CR (Tex.App.—
Amarillo, April 7, 2014). It must be noted that the Weems matter involved a fairly
serious accident that resulted in a person other than the accused being transported
to the hospital. Weems v. State, 434 S.W.3d 655 (Tex.App.--San Antonio 2014). The
Weems court did not rely on the accident as the sole determinative factor in the
viability of the search in its constitutional review of the conduct of law enforcement.
Weems also discusses a good faith claim by the State as a basis to allow for the
admission of the evidence under the good faith claim. The Weems court dismissed
the state’s argument stating:
Finally, the State argues that the evidence should not
be excluded pursuant to the federal exclusionary rule or
pursuant to article 38.23 of the Texas Code of Criminal
Procedure because the arresting officer relied on the
35
implied consent statute and mandatory blood draw statute
in good faith. Under the federal exclusionary rule, if a law
enforcement officer relies in good faith on a statute
authorizing his warrantless search and the statute is later
determined to be unconstitutional, the exclusionary rule
does not apply. Illinois v. Krull, 480 U.S. 340, 342, 355
(1987). However, constraints do apply to the exception to
the exclusionary rule. "A statute cannot support
objectively reasonable reliance if, in passing the statute,
the legislature wholly abandoned its responsibility to
enact constitutional laws." Id. at 355. "Nor can a law
enforcement officer be said to have acted in good-faith
reliance upon a statute if its provisions are such that a
reasonable officer should have known that the statute was
unconstitutional." Id.
First, we note that the implied consent and
mandatory blood draw statutes do not explicitly provide
for a warrantless search. See Villarreal, 2014 WL 1257150,
at * 11 (explaining that the mandatory blood draw statute
"does not address or purport to dispense with the Fourth
Amendment's warrant requirement for blood draws").
Second, we note that there is no such good faith exception
found in Texas's exclusionary rule; and Texas can provide
more protection to a suspect than federal law. Article
38.23 provides for an exception to the exclusionary rule
only when an officer relies in good faith upon a warrant
issued by a neutral magistrate based on probable cause.
See Tex. Code Crim. Proc. Ann. art. 38.23(b) (West 2005).
It says nothing about an officer's reliance in good faith on
a statute. Therefore, we hold that the exclusionary rule
applies in this case.
Weems v. State, 434 S.W.3d 655 (Tex.App.--San Antonio 2014).
This Court, while not bound by the opinion of the Fourth District Court of
Appeals’ precedent, should apply the wisdom of the good faith analysis. The
evidence obtained as a result of the officer conducting the “mandatory blood draw”
must be excluded by the application of the well reasoned rationale of the Weems
36
court. The Texas Court of Criminal Appeals also prohibits the use of the
mandatory blood draw in the rendition of the opinion in Villareal that followed
Aviles being vacated by the United States Supreme Court.
Finally the attempt by law enforcement to create exigent circumstances after
realizing that the constitutionality of the mandatory draw statute was doomed to fail
is analogous to the rational set forth by the United States Supreme Court in Florida
v. Wells addressing another attempt by law enforcement to claim a recognized
exception to the warrant requirement despite the clear intent of the officer
conducting the search. In Florida v. Wells, the Court stated, “an inventory is
constitutionally permissible as long as it is not a ‘ruse” for general rummaging in
order to discover incriminating evidence." Florida v. Wells, 495 U.S.1, 4, 110S.Ct.
1632, 109 L.Ed 1 (1990). This is analogous to the case at bar because the
Court recognized that while an exception may be declared, the evidence must
support the claimed exception and the prohibited conduct is not excused by
merely claiming that an exception exists. The testimony in this case is clear
that Trooper Bures, on the night in question, directed the nurse to obtain the
sample pursuant to the mandatory blood draw provision and he only later
made the claim that exigent circumstances existed. This is clearly the type of
claim the Supreme Court was concerned with in Florida v. Wells. The Court’s
holding was that law enforcement must not be allowed to claim an exception
37
as a ruse to validate conduct which has been determined to be
unconstitutional. This Court must heed the rational of the United States
Supreme Court and find that the trial court’s failure to suppress the evidence
resulting from the law enforcement reliance of the mandatory blood draw
statute is error and law enforcement’s further attempt to claim exigent
circumstances is a ruse intended to validate impermissible conduct and an
illegal/unconstitutional search and seizure.
Additionally, presentation of an exigent circumstances reason by the
officer at the time of the suppression hearing is analogous to the concerns of
set forth in the opinion in Miller El as it addressed reasons given in a Batson
challenge case. In Miller El II, the court stated, ”A Batson challenge does not
call for a mere exercise in thinking up any rational basis. If the stated reason
does not hold up, its pretextual significance does not fade because a trial
judge, or an appeals court, can imagine a reason that might not have been
shown up as false.” Miller El V. Dretke, 545 U.S. 231, 252 (2005). This
concern by the United States Supreme Court is analogous to the case at bar
because it is clear that the trooper specifically relied upon §724 of the Texas
Transportation Code because of his efforts in supporting the requirements of
the mandatory blood draw language and participating in activities that
delayed the process of securing a blood warrant. Bures’ delay in staying at
38
the scene to conduct an inventory, his attempt to converse with Appellant
during the diagnosis and pending treatment phase of Appellant hospital visit,
his trip to his patrol cruiser to secure a criminal history and then his lack of
attempt to secure a warrant in a location that has been specifically equipped
to contact a neutral magistrate which he has knowledge is available 24/7 is
demonstrative of his reliance solely on the existence of the statutory criteria
for a mandatory blood draw. The post-McNeely relation of exigent
circumstances is the functional equivalent of the mere exercise in thinking up
a rational basis or the mere exercise in creating an exigent circumstance. This
Court must consider all of the actions taking by Trooper Bures on the night of
the accident and compare them to the testimony at the suppression hearing
and trial. This Court must then agree with Appellant that the creation of the
exigent circumstances rationale to overcome the adverse consequences of
negative rulings on the legality and potential constitutionality of the
mandatory blood draw statutes. This Court must hold that the mere creation
of the exigent circumstances rational is merely a ruse to excuse what the Texas
Court of Criminal Appeals has determined to be unconstitutional conduct and
designed to circumvent the inevitable exclusion of the blood evidence.
POINT OF ERROR NUMBER THREE: THE TRIAL COURT
UNCONSTITUTIONALLY HARMED APPELLANT WHEN IT REFUSED
TO SUPPRESS THE RESULTS OF APPELLANT’S BLOOD ALCOHOL
39
CONTENT THAT WAS ONLY AVAILABLE AS A RESULT OF A BLOOD
DRAW TAKEN FOR MEDICAL PURPOSES AND PRODUCED INTO
EVIDENCE BY A SHAM GRAND JURY SUBPOENA ISSUED
SUBSEQUENT TO INDICTMENT.
Trial counsel objected to the use of the medically obtained blood sample being
procured by a grand jury subpoena in proving up the prosecution’s case. Appellant
believes that should this Court hold that the trial court erred in allowing the use of
the law enforcement blood sample as evidence, Appellant would find herself in the
sticky predicament that this Court would find the error to be harmless based on the
ruling of this Court in State v. Huse, 07-12-00383-CR (Tex.App.—Amarillo
2014)(not published, cited for persuasive purposes only.) In the Huse case, this
Court addressed the issue of standing and illegality of procuring the medical records
in the means used by the prosecution. This Court ruled against issues very similar
to those raised by Appellant’s counsel in this case. This Court cited State v. Hardy,
963 S.W.2d 516 ( Tex.Crim.App. 1997), Murray v. State, 245 S.W.3d 37 (Tex.App—
Austin 2007)(pet filed), Tapp v. State, 108 S.W.2d 459 (Tex.App Houston—2003 pet.
ref’d ) as the basis for denying standing in the claim of illegality of procuring the
blood alcohol results from medical procedure performed in the treatment of a
patient presenting with a medical emergency. This Court also cited Kennemur for
the same reason. Kennemur v. State, 280 S.W.3d 305 (Tex.App.Amarillo 2008,
pet.ref’d), cert denied, 556 U.S. 1191, 129 S. Ct. 2005, 173L.Ed.2d 1101 (2009).
Appellant disagrees with the premise that she has no standing to preserve the
40
privacy of her medical records. Appellant also understands that this court
will maintain the holding made in the above referenced case. Appellant also
understands that such holdings were based on precedent, and this Court is
bound to the precedent relied upon to make the rulings in Huse; however,
Appellant raised the issue to preserve for future appellate review the issue of
standing, and the claim of illegal procurement of the records by a sham grand
jury subpoena. This Court was careful to include that the original grand jury
subpoena issued in the absence of the Grand Jury meeting in Huse was
challenged by the defendant. The prosecution dismissed the case, and then
had a properly obtained grand jury subpoena issued during the pendency of a
filing outcome. Appellant proceeds on the basis that this Court had some
basis for including such information and informs this Court that the
prosecution in the instant matter did not attempt to cure any error by
dismissing the case and properly procuring a grand jury subpoena during the
pendency of a grand jury “investigation.” Any investigation done on the case
at bar was completed pre-indictment prior to the presentation of this case
before the grand jury. A podt-indictment subpoena was done for the
purposes of an end-run around the inevitable fate of the mandatory blood
draw statute and its unconstitutionality. Appellant implores this court to
suppress the blood obtained by the prosecution by means of a sham grand
41
jury subpoena obtained under the guise of a grand jury investigation as
improper and unconstitutional. While Appellant understand that this Court
is unlikely to reverse its course on similar facts in this case, Appellant must
present the issue on Appeal for any possible success before this court or any
other court empowered by law to address the issue presented.
PRAYER FOR RELIEF
For the foregoing reasons, Appellant respectfully requests that this Court
suppress the results of the mandatory blood draw obtained in reliance on Section
724.012(b) of the Texas Transportation Code. This section of the transportation
code is constitutionally invalid on its face based on its disregard for the protections
granted by the Fourth Amendment to United States Constitution, and Article1
Sections 9 and 10 of the Texas Constitution. Additionally, this Court must find
based on the testimony that no exigent circumstances existed that would allow for
the collection of the blood. Finally this court should reconsider the holdings relating
to the privacy expectations granted by HIPPA and hold that the blood alcohol
content obtained in violation of that expectation should have been suppressed. This
Court must reverse the conviction of Appellant and remand it to the trial court for
proceedings consistent with the relief granted by this Court.
Respectfully submitted,
Kelly Clark
42
Attorney-at-law
1401 Crickets
Lubbock, TX 79401
806 765-9977
Email:
kcdiscoverylbb@sbcglobal.net
Attorney for the Appellant,
Rex Ann Baker
By /S/ Kelly Clark
KELLY CLARK
Texas State Bar No. 00790467
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the above and foregoing Brief For
the Appellant has been mailed to the Jeffrey Ford, Lubbock County Assistant District
Attorney, PO Box 10536, Lubbock, Texas, 79408, attorney on appeal for the State of
Texas on this the 20th day of January, 2015.
/S/ Kelly Clark
Kelly Clark
43
CERTIFICATE OF WORD COUNT
This is to certify that a true and correct count of words contained within
Appellant’s brief as counted by the word processing program used to generate the
document is twelve thousand six hundred fifty (12,650). The count of words was
undertaken on this document on its date of filing this the 20th day of January, 2015.
/S/ Kelly Clark
Kelly Clark
44