Rodriguez, Javier ( 2015 )

PD-0828-15
PD-0828-15 COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 7/2/2015 12:07:27 PM
Accepted 7/2/2015 4:23:14 PM
ABEL ACOSTA
CLERK
No. _________________
IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
THE STATE OF TEXAS,
PETITIONER,
V.
JAVIER RODRIGUEZ,
RESPONDENT.
PETITION IN CAUSE NO. 11-CR-3843-G, FROM THE
319TH DISTRICT COURT OF NUECES COUNTY, TEXAS,
AND CAUSE NO. 13-13-00335-CR, IN THE
COURT OF APPEALS FOR THE THIRTEENTH DISTRICT OF TEXAS.
PETITION FOR DISCRETIONARY REVIEW
Douglas K. Norman
State Bar No. 15078900
Assistant District Attorney
105th Judicial District of Texas
901 Leopard, Room 206
Corpus Christi, Texas 78401
(361) 888-0410
(361) 888-0399 (fax)
douglas.norman@nuecesco.com
Attorney for Petitioner
July 2, 2015
IDENTITY OF JUDGE, PARTIES AND COUNSEL
Trial Judge:
Hon. Thomas F. Greenwell
Judge, 319th District Court
901 Leopard St., Corpus Christi, TX 78401
State’s Trial and Appellate Attorneys:
Douglas K. Norman
State Bar No. 15078900
Clarissa Fernandez
State Bar No. 24068964
Assistant District Attorneys
901 Leopard, Room 206
Corpus Christi, Texas 78401
(361) 888-0410
Appellee:
Javier Rodriguez
Appellee’s Trial Attorneys
Hector Gonzalez
State Bar No. 08127100
Eric Perkins
State Bar No. 15785060
2818 S. Port Ave., Corpus Christi, TX 78405
Appellee’s Appellate Attorney:
Mr. Donald B. Edwards
State Bar No. 06469050
P.O. Box 3302, Corpus Christi, Texas 78463
(361) 887-7007
mxlplk@swbell.net
i
TABLE OF CONTENTS
IDENTITY OF JUDGE, PARTIES AND COUNSEL ............................... i
INDEX OF AUTHORITIES ....................................................................... iv
STATEMENT REGARDING ORAL ARGUMENT ................................ 1
STATEMENT OF THE CASE .................................................................... 2
STATEMENT OF PROCEDURAL HISTORY ........................................ 2
QUESTIONS PRESENTED FOR REVIEW ............................................. 2
ARGUMENT ................................................................................................. 3
I. Whether the implied consent and mandatory blood draw provisions
of the Texas Transportation Code are a constitutionally valid
alternative to the warrant requirement. ..................................................... 3
II. Whether a suspect’s failure to explicitly refuse a request to submit to
a blood draw prevents the arresting officer from proceeding under
Section 724.012 to obtain a blood sample pursuant to statutorily implied
consent? .......................................................................................................... 4
III. Whether, in order to show exigent circumstances, an investigating
officer must anticipate that he will obtain probable cause for a blood
warrant prior to obtaining all of the facts necessary to obtain such a
warrant; or whether exigent circumstances is determined as of the time
the facts known to the officer mature into probable cause for the blood
warrant? ......................................................................................................... 7
IV. Whether the Thirteenth Court of Appeals erred in considering the
subjective belief of the arresting officer that he did not need a warrant,
in its determination as to whether exigent circumstances justified the
officer in obtaining a blood sample without a warrant? ......................... 11
ii
V. Alternatively, to the extent that fact questions were raised at the
suppression hearing dependent upon the trial court’s belief in the
credibility of the witnesses and evidence, the Thirteenth Court of
Appeals erred in refusing to remand to the trial court for findings of
fact and conclusions of law. ........................................................................ 12
PRAYER FOR RELIEF............................................................................. 15
RULE 9.4 (i) CERTIFICATION ............................................................... 16
CERTIFICATE OF SERVICE ................................................................. 16
APPENDICES:
1. Thirteenth Court of Appeals Opinion.
2. Electronic Docket Sheet.
3. Order Denying Motion to Reconsider.
iii
INDEX OF AUTHORITIES
CASE LAW
Brigham City, Utah v. Stuart, 547 U.S. 398, 126 S. Ct. 1943 (2006). ......... 12
Brimage v. State, 918 S.W.2d 466 (Tex. Crim. App. 1994). ........................ 11
Colburn v. State, 966 S.W.2d 511 (Tex. Crim. App. 1998). ........................ 11
State v. Cullen, 195 S.W.3d 696 (Tex. Crim. App. 2006) ...................... 13, 14
Garcia v. State, 15 S.W.3d 533 (Tex. Crim. App. 2000). ............................ 12
Kentucky v. King, 131 S. Ct. 1849 (2011). ............................................... 8, 12
Missouri v. McNeely, 133 S. Ct. 1552 (2013)............................................... 10
Torres v. State, 182 S.W.3d 899 (Tex. Crim. App. 2005). ............................. 9
STATUTES, RULES AND OTHER AUTHORITIES
Tex. Transp. Code § 724.011. ......................................................................... 4
Tex. Transp. Code § 724.012. ......................................................................... 5
Tex. Transp. Code § 724.013. ......................................................................... 5
Tex. R. App. P. 44.4. ..................................................................................... 14
Tex. R. App. P. 66.3. ....................................................................................... 4
iv
No. ___________________________
THE STATE OF TEXAS, | IN THE
Petitioner, |
|
v. | COURT OF CRIMINAL APPEALS
|
JAVIER RODRIGUEZ, |
Respondent. | OF TEXAS
STATE’S PETITION FOR DISCRETIONARY REVIEW
TO THE HONORABLE COURT OF CRIMINAL APPEALS:
Comes now the State of Texas, by and through the District Attorney
for the 105th Judicial District of Texas, and respectfully urges this Court to
grant discretionary review of the above named cause for the reasons that
follow:
STATEMENT REGARDING ORAL ARGUMENT
The State believes that oral argument would be helpful to the
determination of the present appeal because, in addition to the issue already
under consideration before this Court in the Villarreal case cited herein, the
State raises an unresolved question concerning the interpretation of the
implied consent/mandatory draw statute, and other questions concerning the
duty of police to anticipate the need for a warrant before obtaining probable
cause, and the objective nature of the determination of exigent
circumstances.
1
STATEMENT OF THE CASE
Javier Rodriguez was indicted for three counts of intoxication assault
arising out of the same incident. (Clerk’s Record p. 5) He filed a motion to
suppress a blood test showing the level of his intoxication (Clerk’s Record p.
393), which the trial court granted by a written order signed on May 28,
2013. (Clerk’s Record p. 402) The present petition arises out of a State’s
Appeal from that order, which the State perfected by timely filed notice of
appeal on June 6, 2013. (Clerk’s Record p. 405)
STATEMENT OF PROCEDURAL HISTORY
A panel of the Thirteenth Court of Appeals issued an unpublished
memorandum opinion on June 18, 2015, affirming the trial court’s order
granting the motion to suppress. (See Appendix 1) The State has not filed a
motion for rehearing.
QUESTIONS PRESENTED FOR REVIEW
I. Whether the implied consent and mandatory blood draw provisions
of the Texas Transportation Code are a constitutionally valid
alternative to the warrant requirement.
II. Whether a suspect’s failure to explicitly refuse a request to submit to
a blood draw prevents the arresting officer from proceeding under
Section 724.012 to obtain a blood sample pursuant to statutorily implied
consent?
2
III. Whether, in order to show exigent circumstances, an investigating
officer must anticipate that he will obtain probable cause for a blood
warrant prior to obtaining all of the facts necessary to obtain such a
warrant; or whether exigent circumstances is determined as of the time
the facts known to the officer mature into probable cause for the blood
warrant?
IV. Whether the Thirteenth Court of Appeals erred in considering the
subjective belief of the arresting officer that he did not need a warrant,
in its determination as to whether exigent circumstances justified the
officer in obtaining a blood sample without a warrant?
V. Alternatively, to the extent that fact questions were raised at the
suppression hearing dependent upon the trial court’s belief in the
credibility of the witnesses and evidence, the Thirteenth Court of
Appeals erred in refusing to remand to the trial court for findings of
fact and conclusions of law.
ARGUMENT
I. Whether the implied consent and mandatory blood draw provisions
of the Texas Transportation Code are a constitutionally valid
alternative to the warrant requirement.
The issue is presently before this Court in State v. Villarreal, PD-
0306-14 (Tex. Crim. App, November 26, 2014), which, although initially
decided against the State, is now pending on rehearing. The State
respectfully requests that cases like the present one, with similar or identical
issues, be held under consideration until Villarreal does become final and
binding. Accordingly, the State continues to argue that the implied consent
and mandatory blood draw provisions of the Texas Transportation Code are
a constitutionally valid alternative to the warrant requirement, and that the
3
decision of the Thirteenth Court of Appeals to the contrary decides an
important question of federal law that has not been, but should be, settled by
the Court of Criminal Appeals. See Tex. R. App. P. 66.3 (b).
II. Whether a suspect’s failure to explicitly refuse a request to submit to
a blood draw prevents the arresting officer from proceeding under
Section 724.012 to obtain a blood sample pursuant to statutorily implied
consent?
At the end of its opinion, the Thirteenth Court of Appeals
concluded, among other things, that the Implied Consent/Mandatory Draw
statute did not apply in the present case for the following reason:
Section 724.012 requires that “the person refuses the officer’s request
to submit to the taking of a specimen voluntarily” prior to the
mandatory blood draw. TEX. TRANSP. CODE ANN. § 724.012
(emphasis added). Therefore, as a matter of law, Officer Jordan did
not properly acquire appellee’s blood sample pursuant to section
724.012.
(13th Court of Appeals Opinion pp. 18-19)
However, the Implied Consent/Mandatory Draw provisions of the
Texas Transportation Code generally consist of the following three statutes,
which should be read together:
Sec. 724.011. CONSENT TO TAKING OF SPECIMEN.
(a) If a person is arrested for an offense arising out of acts alleged to
have been committed while the person was operating a motor vehicle
in a public place, or a watercraft, while intoxicated, …, 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 ….
4
Sec. 724.012. TAKING OF SPECIMEN.
(a) One or more specimens of a person's breath or blood may be taken
if the person is arrested and at the request of a peace officer having
reasonable grounds to believe the person:
(1) while intoxicated was operating a motor vehicle in a public
place, or a watercraft; …
(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: [Mandatory Draw Circumstances.]
Sec. 724.013. PROHIBITION ON TAKING SPECIMEN IF
PERSON REFUSES; EXCEPTION.
Except 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.
When properly read as a whole, it is clear that the situation in which
a suspect neither explicitly submits nor explicitly refuses to submit to a
blood draw under Section 724.012 does not, as the Thirteenth Court of
Appeals seems to assume, defeat a compelled draw, but merely shifts it from
the purview of Subsection (b), to that of Subsection (a).
Specifically, Section 724.011 is the operative statute that deems
consent for the blood draw by virtue of the underlying DWI arrest.1 Section
1
The Thirteenth Court of Appeals concluded that the State failed to
preserve its reliance on the implied consent provisions of Section 724.011,
as follows:
At the suppression hearing, the State neither mentioned the implied
consent statute it cites on appeal nor argued that appellee impliedly
5
724.013 partially removes this deemed consent only if the suspect “refuses
to submit.” Accordingly, if the suspect does not refuse to submit, deemed
consent remains intact and blood may be drawn even upon a simple DWI
arrest under Section 724.012(a). On the other hand, if the suspect does
affirmatively “refuse to submit,” blood may only be drawn if he fits within
the narrower category of a Section 724.012(b) DWI arrest under aggravating
circumstances.
The Thirteenth Court of Appeals erred in piecemealing the statute
and assuming that the suspect’s refusal to submit defeated the officer’s
ability to compel a warrantless blood draw.
consented to the warrantless blood draw by driving on the roadway or
obtaining a driver’s license as it now argues.
th
(13 Court of Appeals Opinion p. 16)
However, the fact that the State may never have mentioned Section
724.011 by name does not detract from the fact the its whole argument at the
suppression hearing was based on the implied consent/mandatory draw
provision included within Sections 724.011 through 724.013, and both the
parties and the trial court understood this from the arguments made and the
pleadings on file. (Reporter’s Record pp. 6-7) Rodriguez’s Motion to
Suppress Blood Test even presumes that Section 724.011 deemed consent
applies, but initially attempts to avoid its application by alleging that he was
illegally detained and not arrested at the time. (Clerk’s Record p. 393)
6
III. Whether, in order to show exigent circumstances, an investigating
officer must anticipate that he will obtain probable cause for a blood
warrant prior to obtaining all of the facts necessary to obtain such a
warrant; or whether exigent circumstances is determined as of the time
the facts known to the officer mature into probable cause for the blood
warrant?
The Thirteenth Court of Appeals suggests by its opinion that it was
determining exigent circumstances as of the time that the officer arrived at
the scene of the accident, which in turn suggests that the officer in question
had some duty to anticipate that he would develop probable cause and make
arrangements to obtain a warrant at that time.
In particular, the Thirteenth Court of Appeals devised the following
broad generalization from the McNeely opinion:
Moreover, the United States Supreme Court has stated that if an
officer can take steps to secure a warrant while the suspect is being
transported to a hospital by another officer, there would be no
plausible justification for an exception to the warrant requirement.
McNeely, 133 S. Ct. at 1561.
(13th Court of Appeals Opinion p. 14) Yet, the Supreme Court never
suggested in McNeely that the officer’s duty to take steps to secure a warrant
begins before he has developed probable cause to believe that the suspect
was intoxicated. Other Supreme Court cases suggest that the duty to seek a
warrant may not even occur until after the officer has developed something
more than the bare minimum of facts arguably necessary to show probable
cause.
7
In Kentucky v. King, the Supreme Court held that police, when they
are otherwise acting lawfully, may be excused from the warrant requirement
even when their own actions create the exigent circumstances that make
getting a warrant impractical. 131 S. Ct. 1849, 1857-61 (2011). Therein the
Supreme Court examined circumstances in which a police-created exigency
occurs even after facts sufficient to show probable cause have been
developed, and stated that “[t]here are many entirely proper reasons why
police may not want to seek a search warrant as soon as the bare minimum
of evidence needed to establish probable cause is acquired.” Id. at 1860.
Among other reasons, the Supreme Court noted that “the police may want to
ask an occupant of the premises for consent to search because doing so is
simpler, faster, and less burdensome than applying for a warrant,” and that
“law enforcement officers may wish to obtain more evidence before
submitting what might otherwise be considered a marginal warrant
application.” Id. The Supreme Court concluded that “[f]aulting the police
for failing to apply for a search warrant at the earliest possible time after
obtaining probable cause imposes a duty that is nowhere to be found in the
Constitution.” Id. at 1861.
With regard to a DWI investigation, the fact that the suspect caused an
accident, and inarticulate suspicions that he might have been intoxicated at
8
the time, are insufficient to show probable cause for a DWI arrest or blood
search. See Torres v. State, 182 S.W.3d 899, 903 (Tex. Crim. App. 2005).
In the present case, while at the scene and before going to the hospital,
Officer Jordan had nothing more than a suspicion that Rodriguez might be
intoxicated. (Reporter’s Record p. 13) Only after arriving at the hospital,
smelling alcohol on Rodriguez’s breath, and hearing his slurred speech, did
Officer Jordan feel confident that he had probable cause to arrest Rodriguez
for DWI/Intoxication Assault, and therefore probable cause to support a
blood warrant as well. (Reporter’s Record pp. 15-17, 29, 41)
In addition, for the same reasons set forth in King, even if Officer
Jordan had the bare minimum for probable cause at the scene of the
accident, it would have been objectively reasonable for him to delay seeking
a warrant until he had an opportunity to speak to Rodriguez and observe him
more closely at the hospital, and perhaps even make getting a warrant
unnecessary by virtue of his consent to a blood draw.
Accordingly, the Thirteenth Court of Appeals clearly misapplied its
calculation of delay by assuming that Officer Jordan should have attempted
to obtain a warrant at the scene of the accident, rather than later at the
hospital when the facts known to Officer Jordan reached the level of
probable cause.
9
Moreover, concerning the relevant period of delay, the record
suggests that there was little or no delay in drawing Rodriguez’s blood once
Officer Jordan smelled alcohol on his breath and placed him under arrest.
(Reporter’s Record pp. 18, 37) However, both Officer Jordan and Officer
Gary Williams, who was assigned to the DWI Enforcement Unit and whose
primary function was DWI investigation (Reporter’s Record pp. 95-96),
testified to the lengthy process for obtaining a warrant and gave estimates of
the delay at generally between an hour and an hour and a half. (Reporter’s
Record pp. 21, 66, 100-01, 112-13)
In McNeely, the Supreme Court’s discussion concerning the lack of
exigent circumstances was generally premised upon “a situation in which the
warrant process will not significantly increase the delay before the blood test
is conducted.” Missouri v. McNeely, 133 S. Ct. 1552, 1561 (2013). The
Supreme Court specifically acknowledged that “exigent circumstances
justifying a warrantless blood sample may arise in the regular course of law
enforcement due to delays from the warrant application process.” Id. at
1563.
Had the Thirteenth Court of Appeals applied the correct calculation of
delay at one hour to an hour and a half, this clearly would have been a
10
significant enough delay under the circumstances to show loss of evidence
and to justify the warrantless blood draw.
IV. Whether the Thirteenth Court of Appeals erred in considering the
subjective belief of the arresting officer that he did not need a warrant,
in its determination as to whether exigent circumstances justified the
officer in obtaining a blood sample without a warrant?
In its opinion, the Thirteenth Court of Appeals gave weight to the trial
court’s supposed “finding” that “Officer Jordan’s only basis for drawing
appellee’s blood without first obtaining a warrant was that section 724.012
required him to take a blood sample without appellee’s consent and without
the necessity of getting a warrant.” (13th Court of Appeals Opinion p. 12)
In doing so, the Court of Appeals neglected the objective facts showing
exigent circumstances and improperly looked to the arresting officer’s
subjective motivation and justification for the warrantless blood draw.
When examining exigent circumstances to determine whether a
warrantless search is justified, this Court has stated that it uses an objective
standard of reasonableness, taking into account the facts and circumstances
known to the police at the time of the search. See Colburn v. State, 966
S.W.2d 511, 519 (Tex. Crim. App. 1998); Brimage v. State, 918 S.W.2d
466, 501 (Tex. Crim. App. 1994). Likewise, the Supreme Court has
consistently applied an objective standard, rejecting any approach that looks
to the individual officer’s state of mind or motivation at the time of the
11
search. See Brigham City, Utah v. Stuart, 547 U.S. 398, 404-05, 126 S. Ct.
1943 (2006); see also Kentucky v. King, 131 S. Ct. 1849, 1859 (2011)
(quoting Brigham City and noting the repeated rejection of a subjective
approach to exigent circumstances, which instead depends upon whether
“the circumstances, viewed objectively, justify the action”).
For this reason, as well as the others already noted, the Thirteenth
Court of Appeals erred in rejecting exigent circumstances as an alternate
justification for obtaining a blood sample without a warrant in the present
case.
V. Alternatively, to the extent that fact questions were raised at the
suppression hearing dependent upon the trial court’s belief in the
credibility of the witnesses and evidence, the Thirteenth Court of
Appeals erred in refusing to remand to the trial court for findings of
fact and conclusions of law.
Following the trial court's order granting a motion to suppress, signed
on May 28, 2013 (CR p. 402), the State timely filed a request for findings
and conclusions on June 7, 2013 (CR p. 434), and a notice of past due
findings on July 5, 2013. (CR p.444) 2
2
The State would note that the judge who presided at the suppression
hearing, the Honorable Thomas F. Greenwell, died suddenly on July 15,
2013, such that it is no longer possible for him to render findings and
conclusions. This leaves open the question of whether the appropriate
remedy is for the present judge to make findings based on the paper record,
or for that judge to rehear the matter and thereafter render appropriate
findings and conclusions, which may be the more appropriate remedy. See
Garcia v. State, 15 S.W.3d 533 (Tex. Crim. App. 2000). However,
12
On August 6, 2013, the State filed in the Thirteenth Court of Appeals
a motion to abate the appeal and remand for necessary findings and
conclusions to be made, but the Court denied that motion on August 22,
2013. On August 27, 2013, the State asked the Court to reconsider its denial
of the motion to abate and remand, but the Court denied that motion as well
on October 2, 2013, and decided the present appeal based solely on the trial
judge’s comments at the suppression hearing. (See Appendices 2 & 33; 13th
Court of Appeals Opinion p. 5 n.1)
In State v. Cullen, 195 S.W.3d 696 (Tex. Crim. App. 2006), this Court
explained the necessity for findings in connection with the trial court’s
granting of a motion to suppress, as follows:
The refusal of trial courts to enter findings of fact when timely
requested by the State leaves appellate courts with nothing to review
except a one-word ruling and forces the courts of appeals to make
assumptions about the trial court's ruling. The ruling could be based
on a mistake of law, on the trial court's disbelief of the testimony
presented, or even on a clerical error. There is the possibility that we
are basing our entire appellate review on the wrong word being
circled. We agree with Judge Womack's concurring opinion in Ross
that courts of appeals should not be forced to make assumptions (or
outright guesses) about a trial court's ruling on a motion to suppress
evidence. De novo review of such a ruling does not resolve this issue
because the trial court is still in the best position to judge the
whichever option may be proper or more appropriate, the State is clearly
entitled to findings and to have them made by the trial court in some manner.
3
Although post-card notice was received concerning the Court’s denial of
the motion to reconsider, no such notice was received concerning the denial
of the original motion to abate and remand, which is reflected only on the
Court’s electronic docket and in footnote 1 of the opinion.
13
credibility and demeanor of the witnesses at a pretrial suppression
hearing. Instead, the proper solution to this problem is to require the
trial courts to enter findings of fact and conclusions of law when
ruling on a motion to suppress evidence.
Id. at 698. Accordingly, Cullen set forth a requirement that:
upon the request of the losing party on a motion to suppress evidence,
the trial court shall state its essential findings. By “essential
findings,” we mean that the trial court must make findings of fact and
conclusions of law adequate to provide an appellate court with a basis
upon which to review the trial court's application of the law to the
facts.
Id. at 699.
The Texas Rules of Appellate Procedure provide, in pertinent part, as
follows:
(a) Generally. A court of appeals must not affirm or reverse a
judgment or dismiss an appeal if:
(1) the trial court's erroneous action or failure or refusal to act
prevents the proper presentation of a case to the court of appeals; and
(2) the trial court can correct its action or failure to act.
(b) Court of appeals direction if error remediable. If the
circumstances described in (a) exist, the court of appeals must direct
the trial court to correct the error. The court of appeals will then
proceed as if the erroneous action or failure to act had not occurred.
Tex. R. App. P. 44.4 (emphasis added).
Accordingly, Rule 44.4 is mandatory and not permissive concerning
the duty of the appellate court to direct the trial court to correct errors of the
present nature. See Cullen, 195 S.W.3d at 698 (quoting Rule 44.4 as its
14
authority for requiring the trial court to make findings and, by extension,
requiring the appellate court to abate and remand for such findings).
In the present case, the Thirteenth Court of Appeals had a clear duty
to abate and remand for the trial court to make findings and conclusions, and
specifically credibility determinations about the testimony and evidence it
received at the suppression hearing.
PRAYER FOR RELIEF
For the foregoing reasons, the State requests that the Court: grant this
petition for discretionary review; set this case for submission with oral
argument; and, after submission, reverse the judgment of the Court of
Appeals and remand to that Court either to enter an order vacating the trial
court’s suppression order, or to remand to the trial court to make findings
and conclusions, and thereafter to consider the present appeal based on those
findings and conclusions.
Respectfully submitted,
/s/Douglas K. Norman
___________________
Douglas K. Norman
State Bar No. 15078900
Assistant District Attorney
105th Judicial District of Texas
901 Leopard, Room 206
Corpus Christi, Texas 78401
(361) 888-0410
(361) 888-0399 (fax)
douglas.norman@co.nueces.tx.us
15
RULE 9.4 (i) CERTIFICATION
In compliance with Texas Rule of Appellate Procedure 9.4(i)(3), I
certify that the number of words in this petition, excluding those matters
listed in Rule 9.4(i)(1), is 3,104.
/s/ Douglas K. Norman
___________________
Douglas K. Norman
CERTIFICATE OF SERVICE
This is to certify that, pursuant to Tex. R. App. P. 6.3 (a), copies of
this petition for discretionary review were e-mailed on July 2, 2015, to
Respondent's attorney, Mr. Donald B. Edwards, and to the State Prosecuting
Attorney.
/s/ Douglas K. Norman
___________________
Douglas K. Norman
16
APPENDIX 1.
Thirteenth Court of Appeals Opinion.
NUMBER 13-13-00335-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
THE STATE OF TEXAS, Appellant,
v.
JAVIER RODRIGUEZ, Appellee.
On appeal from the 319th District Court
of Nueces County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Garza and Longoria
Memorandum Opinion by Chief Justice Valdez
By one issue, the State appeals the trial court’s granting of appellee Javier
Rodriguez’s motion to suppress. We affirm.
I. BACKGROUND
After being involved in a multi-car accident where he and others were injured,
appellant was arrested for driving while intoxicated. A blood sample was taken from
appellee. Appellee filed a motion to suppress the test results of the blood sample,
challenging the constitutionality of section 724.012 of the Texas Transportation Code, the
mandatory blood draw statute. See TEX. TRANSP. CODE ANN. § 724.012(b) (West,
Westlaw through 2013 3d C.S.).
At the hearing on appellee’s motion to suppress, Officer Andrew Jordan testified
that on August 4, 2011, he arrived at the scene of a multi-car accident in Corpus Christi,
Texas, and he noticed appellee trapped in his vehicle bleeding and in need of assistance.
According to Officer Jordan, several people from the other cars were being transported
to the hospital and he was told “that there were substantial injuries.” Appellee was also
transported to the hospital. Officer Jordan said that at the hospital, after smelling the odor
of an alcoholic beverage in appellee’s hospital room, he placed appellee under arrest and
instructed a phlebotomist to draw appellee’s blood. Officer Jordan testified that it would
have taken between an hour and 90 minutes to get a warrant but that he never sought a
search warrant. Officer Jordan stated that he ordered the blood draw pursuant to the
mandatory blood draw statute. See id. Officer Jordan testified that he did not ask
appellee whether or not he consented to the blood draw, but “I read the form [that stated
appellee’s rights] and then I took the—I had the phlebotomist draw the blood for the
mandatory.”
At the suppression hearing, the evidence established that Officer Jordan had not
obtained a warrant to acquire appellee’s blood sample and that he relied solely on the
2
mandatory blood draw statute. The State argued that appellee impliedly consented to the
blood draw by, among other things, remaining silent when the blood was drawn. The
State further argued that section 724.012 is an exception to the warrant requirement and
in the alternative, exigent circumstances existed. In response to the State’s argument
that there is implied consent in this case because appellee allowed the blood to be drawn
and remained silent, appellee’s trial counsel stated:
And we certainly have no refusal if that were the case, but I would
ask the Court to rely on the record. I think that was well developed through
Officer Jordan, that the prosecutor suggested that [appellee did] not mov[e]
[his] arm. . . . That Officer Jordan never considered consent [at] issue, that
he simply looked right over that and the document speaks for itself, Your
Honor. We got the exhibit here that he answered my direct question on.
Consent nor refusal was an issue, he simply put it in front of the—read it to
him, checked off mandatory, indicated no consent nor refusal [of] consent.
And then moved on.
Again, the thought among [Corpus Christi Police Department]
officers, Judge, is that a warrant is not an issue in a case like this, they have
developed their own interpretations of 724.012(B), and they are going to
stick with that regardless of what 724.012(B) says.
Regarding whether appellee consented to the blood draw, the State responded that a
suspect may not simply stay mute and then argue that neither consent nor refusal
occurred; thus, by staying quiet, appellee consented. The State did not specifically
respond to appellee’s argument that Officer Jordan had not first acquired appellee’s
refusal for a specimen. And the prosecutor stated, “there was no indication that Mr.—the
defendant in this case, the suspect, refused or in anyway state[d] he refused to consent.”
Thus, the State’s argument was that appellee had not refused to provide a specimen
because he had consented by, among other things, staying mute. The trial judge stated:
“I think there has to be some sort of affirmative consent to say that somebody consented
in that situation. So I would find that there is no consent.”
3
The parties then discussed the application of Missouri v. McNeely, which the trial
judge believed prohibits the State from acquiring a blood draw without a warrant or exigent
circumstances. See Missouri v. McNeely, __ U.S. __, 133 S. Ct. 1552 (2013). The trial
judge explained that under McNeely, when an officer is making a determination of
whether to take a blood draw because there are exigent circumstances, the officer is
required to make a fact-intensive analysis based on the circumstances and that in this
case Officer Jordan admitted he had only relied on the blood draw statute and that he did
not engage in any such analysis. It is clear from the record that the trial court did not
believe that Officer Jordan made any exigent circumstances inquiry because Officer
Jordan testified that he could rely on the statute alone and that he was not required to
obtain a warrant if he relied on the statute.
The State argued that McNeely is very narrow and that the Supreme Court did not
reach the issue of whether a mandatory blood draw statute can serve as an exception to
the warrant requirement if properly phrased. The State asserted that the additional
exigency factors as mentioned in Schmerber, “are directly imbedded into the mandatory
blood law. For example, a crash with injury and a child passenger. These exigent factors
were already thought of by our legislature and put into the mandatory blood law. That
was the purpose behind some of those mandatory blood draws.” See Schmerber v. State
of California, 384 U.S. 757, 770 (1966).
The State argued in the alternative that the evidence presented established that
there was an exigency in this case despite Officer Jordan’s testimony that he relied on
the statute alone. The trial judge stated that he did not think that the State had proven
that, in this particular case, exigent circumstances existed that justified the warrantless
4
blood draw because Officer Jordan did not think he needed a warrant and testified he
relied solely on section 724.012(b). The judge explained, “And that’s the problem, we are
trying to go back and recreate an emergency in a situation where the officer didn’t even
try [to get a warrant] because he was relying on the mandatory [blood draw] statute. So
the State is not going to have anything to support an emergency.” Finally, the State
argued that Officer Jordan’s good faith reliance on the statute required that the trial court
deny appellee’s motion to suppress. The trial court granted the motion but did not state
its reasons in the order and did not enter any findings and conclusions. The State filed a
request for findings of fact and conclusions of law, but no findings and conclusions were
filed before the death of the judge in this case.1 This appeal followed.
II. STANDARD OF REVIEW AND APPLICABLE LAW
We review a trial court’s decision on a motion to suppress for an abuse of
discretion. Crain v. State, 315 S.W.3d 43, 48 (Tex. Crim. App. 2010). Under our abuse
of discretion analysis, we use a bifurcated standard. State v. Ross, 32 S.W.3d 853, 856
1 After the Honorable Thomas F. Greenwell, the judge who granted appellee’s motion to suppress,
passed away, the State filed a motion with this Court requesting that we abate this appeal and remand it
for a new motion to suppress hearing with a new judge. The State argued that “[w]ithout explicit findings
concerning the credibility of the witnesses who testified to the difficulty they would have had in obtaining a
warrant, all inferences would run against the State concerning the factual basis for the exigency.” We
denied the motion. The State filed a motion to reconsider our ruling asking that we remand the case for
findings of fact and conclusions of law to be drafted in the alternative. We denied that motion.
Because the pertinent facts are undisputed and Judge Greenwell made a pertinent oral finding on
the record, and Judge Greenwell orally stated the reasons for his ruling, we conclude that written findings
of fact and conclusions of law are unnecessary for our disposition of the issue presented here. See Francis
v. State, 428 S.W.3d 850, 855 n.10 (Tex. Crim. App. 2014) (“In the context of motions to suppress, we have
further held that ‘[a]ppellate courts may review the legal significance of undisputed facts de novo.’”); State
v. Cullen, 195 S.W.3d 696, 699–700 (Tex. Crim. App. 2006) (“[W]hile the appealing party must file its notice
of appeal in accordance with the applicable statutes and rules, the trial court has 20 days from the date of
its ruling in which to file findings of fact if it has not already made oral findings on the record.”). Moreover,
as explained further below, the credibility of the witnesses’ testimony does not appear to have been at
issue, and Judge Greenwell made his decision as a matter of law. Thus, we have no indication that Judge
Greenwell disbelieved the testimony, and our disposition would not change even if he had.
5
(Tex. Crim. App. 2000) (en banc) (citing Guzman v. State, 955 S.W.2d 85, 88 (Tex. Crim.
App. 1997) (en banc)); see also Urbina v. State, No. 13–08–00562–CR, 2010 WL
3279390, at *1 (Tex. App.—Corpus Christi Aug.19, 2010, pet. ref’d) (mem. op., not
designated for publication). We give almost total deference to the trial court’s findings of
historical fact that are supported by the record and to mixed questions of law and fact that
turn on an evaluation of credibility and demeanor. Amador v. State, 221 S.W.3d 666, 673
(Tex. Crim. App. 2007) (citing Guzman, 995 S.W.2d at 89). We “review de novo ‘mixed
questions of law and fact’ that do not depend upon credibility and demeanor.” Id. (quoting
Montanez v. State, 195 S.W.3d 101, 107 (Tex. Crim. App. 2006)); Guzman, 995 S.W.2d
at 89.
“When a trial court makes explicit fact findings, the appellate court determines
whether the evidence (viewed in the light most favorable to the trial court’s ruling) supports
these fact findings.” State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). We will
uphold the trial court’s ruling under any applicable theory of law supported by the facts of
the case whether we infer the fact findings or consider express findings. Alford v. State,
400 S.W.3d 924, 929 (Tex. Crim. App. 2013). “Similarly, regardless of whether the trial
court has made express conclusions of law, we uphold the trial court’s ruling under any
theory supported by the facts because an appellate court reviews conclusions of law de
novo.” Id. Under our de novo review, we are not required to defer to a trial court’s
particular theory. Id. This “rule holds true even if the trial court gave the wrong reason
for its ruling.” Armendariz v. State, 123 S.W.3d 401, 403 (Tex. Crim. App. 2003).
“To suppress evidence on an alleged Fourth Amendment violation, the defendant
bears the initial burden of producing evidence that rebuts the presumption of proper police
6
conduct.” Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). “A defendant
satisfies this burden by establishing that a search or seizure occurred without a warrant.”
Id.; see also Kelly, 204 S.W.3d at 819 n.22 (noting that in the context of a case alleging
assault in a blood draw that “[i]t is important to note that appellee had the initial burden to
produce evidence to support a finding that she did not consent to . . . [the] blood draw”).
Once a defendant establishes there was no warrant, the burden shifts to the State to
prove the warrantless search was reasonable under the totality of the circumstances.
Amador, 221 S.W.3d at 672–73. The State satisfies this burden if it proves an exception
to the warrant requirement. See Gutierrez, 221 S.W.3d at 685.
“Whether a warrantless blood test of a drunk-driving suspect is reasonable must
be determined case by case based on the totality of the circumstances.” McNeely, 133
S. Ct. at 1563. In Schmerber, the United States Supreme Court held that the evidence
showed that the police officer reasonably believed that an emergency existed because
the delay in seeking or obtaining a warrant would result in the destruction of evidence.
Schmerber, 384 U.S. at 770. The court relied on evidence in the record that the alcohol
in the blood dissipates and stated,
Particularly in a case such as this, where time had to be taken to
bring the accused to a hospital and to investigate the scene of the accident,
there was no time to seek out a magistrate and secure a warrant. Given
these special facts, we conclude that the attempt to secure evidence of
blood-alcohol content in this case was an appropriate incident to petitioner’s
arrest.
Id. at 770–71. In McNeely, the United States Supreme Court stated that in Schmerber it
had determined that the warrantless blood test was reasonable after considering all of the
facts and particular circumstances in that case and its analysis “fits comfortably within [its]
7
case law applying the exigent circumstances exception” to the warrant requirement.
McNeely, 133 S. Ct. at 1560.
In McNeely, the State argued that “whenever an officer has probable cause” that
an individual is driving under the influence of alcohol there are exigent circumstances
because blood alcohol evidence is inherently evanescent. Id. And, “[a]s a result, . . . so
long as the officer has probable cause and the blood test is conducted in a reasonable
manner, it is categorically reasonable for law enforcement to obtain the blood sample
without a warrant.” Id. The McNeely court rejected the State’s argument and held that
“[i]n 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. at 1561. The
McNeely court explained
We do not doubt that some circumstances will make obtaining a
warrant impractical such that the dissipation of alcohol from the bloodstream
will support an exigency justifying a properly conducted warrantless blood
test. That, however, is a reason to decide each case on its facts, as we did
in Schmerber, not to accept the ‘considerable overgeneralization’ that a per
se rule would reflect.
Id.
Section 724.012 of the Texas Transportation Code states in pertinent part that “[a]
peace officer shall require the taking of a specimen of the person’s breath or blood under
any of the [listed] 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.”
TEX. TRANSP. CODE ANN. § 724.012 (emphasis added). The applicable subsection states
that an officer must take the person’s blood if “the person was the operator of a motor
8
vehicle or a watercraft involved in an accident that the officer reasonably believes
occurred as a result of the offense and, at the time of the arrest, the officer reasonably
believes that as a direct result of the accident" either "any individual has died or will die,"
"an individual other than the person has suffered serious bodily injury" or "an individual
other than the person has suffered bodily injury and been transported to a hospital or
other medical facility for medical treatment." Id. § 724.012(b)(1).
Ill. EXCEPTIONS TO THE WARRANT REQUIREMENT
A. Section 724.012
The State contends that section 724.012 is an exception to the constitutional
warrant requirement. Specifically, the State argues that "[t]he exigent circumstances or
'special facts' [as required by McNeely] are carved out in the mandatory blood draw
statute .... "
This Court has already determined that the Legislature did not mean to circumvent
the Fourth Amendment's requirement that the police officer acquire a warrant prior to
acquiring a blood sample after the suspect refuses to provide a specimen regarding
another portion of the mandatory blood draw statute. See State v. Villarreal, No. 13-13-
00253-CR, _ S.W.3d _, _, 2014 WL 1257150, at *11 (Tex. App.-Corpus Christi Jan.
23, 2014, pet. granted). The court of criminal appeals affirmed our decision stating, "the
provisions in the Transportation Code do not, taken by themselves, form a constitutionally
valid alternative to the Fourth Amendment warrant requirement" and "a nonconsensual
search of a DWI suspect's blood conducted pursuant to the mandatory-blood-draw and
implied-consent provisions in the Transportation Code, when undertaken in the absence
of a warrant or any applicable exception to the warrant requirement, violates the Fourth
9
Amendment.” State v. Villarreal, No. PD–0306–14, 2014 WL 6734178, at **20–21 (Tex.
Crim. App. Nov. 26, 2014, pet. granted).2 Accordingly, we conclude that section 724.012
of the transportation code does not by itself form a constitutionally recognized exception
to the warrant requirement. See id. Instead, under McNeely, each case must be
evaluated on a case-by-case basis. See McNeely, 133 S. Ct. at 1560.
B. Exigent Circumstances
The State argues that it provided evidence that exigent circumstances existed to
obtain appellee’s blood sample because it is imbedded in section 724.012. However, the
State also points to facts in the record it alleges amounted to an exigency in this case.
At trial, the State alleged to the trial court that exigent circumstances existed here stating
the following:
Your Honor, in this case we do have expert circumstances [sic], for example
in Schmerber they mentioned that a crash, a child passenger, other
complicating factors; such as multiple witnesses, multiple defendants, high
number of arrests at the time of the incident, these can all be additional
exigency factors that can lead to the conclusion that blood is—
The trial court interrupted the prosecutor and stated, “But the officer didn’t have time to
get a warrant. This officer never tried, never made an attempt.” The State then argued
that the trial court must look at the facts objectively to determine whether the police officer
had enough time to get a warrant and that in this case getting a warrant would have taken
too long. The trial court replied, “That’s all based on some sort of general, what the normal
case is and this sort of thing. The Supreme Court, as I read this case, is saying that that
should be the exception, not the norm, that you need a warrant if you are going to get
2 After affirming our decision, the court of criminal appeals granted the State’s petition for rehearing.
However, it has not vacated its decision affirming our decision.
10
somebody’s blood” and here, “you can’t use general facts to support a specific conclusion
in this particular case.” The trial court then pointed out that in this case, Officer Jordan
did not even attempt to get a warrant “because he was relying on the mandatory statute.
So the State is not going to have anything to support an emergency.” These are the only
arguments the State made to the trial court regarding exigent circumstances. Thus, any
other arguments made on appeal by the State have not been preserved for our review. 3
The State does not explicitly state on appeal that even if section 724.012 does not
provide the required exigency alone, nonetheless, it established, based on the evidence
presented, that an exigency existed. However, the State does point to evidence that
arguably could have supported such a conclusion.4 Thus, we will address the argument
that there was an exigency that excused Officer Jordan from acquiring a warrant.
Exigency is an established exception to the warrant requirement and “applies when
the exigencies of the situation make the needs of law enforcement so compelling that a
warrantless search is objectively reasonable under the Fourth Amendment.” McNeely,
3 In its brief, the State maintains that there are other non-exigency based exceptions to the warrant
requirement such as the automobile exception, and voluntary consent and waiver and other consideration
such as “the underlying expectation of privacy as a factor” and “the nature of the privacy interest in blood”
that “will be sufficient to sustain the constitutionality of [mandatory blood draw statutes], especially the
Texas statute, which is narrowly drawn to include only the most egregious offenders and situations.”
However, although the State argued that the McNeely decision is very narrow, the State did not make any
of the above-mentioned arguments to the trial court. Accordingly, we may not reverse the trial court on any
of these grounds. See State v. Rhinehart, 333 S.W.3d 154, 162 (Tex. Crim. App. 2011) (stating, “ordinary
rules of procedural default” apply to “losing party” in trial court); Hailey v. State, 87 S.W.3d 118, 121–22
(Tex. Crim. App. 2002) (“It is well-settled that . . . it violates ordinary notions of procedural default for a
Court of Appeals to reverse a trial court’s decision on a legal theory not presented to the trial court by the
complaining party.”) (quotations omitted); State v. Mercado, 972 S.W.2d 75, 78 (Tex. Crim. App. 1998) (en
banc) (“[I]n cases in which the State is the party appealing, the basic principle of appellate jurisprudence
that points not argued at trial are deemed to be waived applies equally to the State and the defense.”); see
also Martinez v. State, 91 S.W.3d 331, 336 (Tex. Crim. App. 2002) (“And so it is that appellate courts may
uphold a trial court’s ruling on any legal theory or basis applicable to the case, but usually may not reverse
a trial court’s ruling on any theory or basis that might have been applicable to the case, but was not raised.”).
4 At oral argument, the State argued that it established that exigent circumstances existed.
11
133 S. Ct. at 1558 (quoting Kentucky v. King, __ U.S. __, __, 131 S. Ct. 1849, 1856
(2011)). We must look to the totality of the circumstances in determining if the warrantless
search was permissible due to an exigency. Id. at 1559. We agree with Dounds v. State
that “in order to establish a plausible justification for an exigent circumstances exception
to the warrant requirement, the State had the burden to show facts and circumstances
beyond the passage of time and the resulting dissipation of alcohol in the bloodstream.”
434 S.W.3d 842, 851 (Tex. App.—Houston [14th Dist.] 2014, pet. granted).
Here, the trial court specifically found that Officer Jordan said he did not rely on
any emergency or exigency to obtain appellee’s blood sample and instead Officer Jordan
only relied on section 724.012 to obtain appellee’s blood sample. We must give this
historical fact finding almost total deference because as further explained below, it is
supported by the record. See Amador, 221 S.W.3d at 673. Thus, similar to Villarreal, the
trial court found that Officer Jordan’s only basis for drawing appellee’s blood without first
obtaining a warrant was that section 724.012 required him to take a blood sample without
appellee’s consent and without the necessity of getting a warrant. See Villarreal, 2014
WL 1257150, at *11.
This finding is supported by the record. At the suppression hearing, Officer Jordan
continuously claimed that his sole basis for the warrantless blood draw was section
724.012. On cross-examination by appellee’s trial counsel the following exchange
occurred:
Defense Counsel: All right. So the urgency then was for clearing the
scene as opposed to anything else?
Officer Jordan: No. It was for making sure everybody was treated and
clearing the scene. Making sure the people who
12
needed to go to the hospital went to the hospital and
then clearing the intersection.
Defense Counsel: So, were those two urgencies, clearing the intersection
and making sure everybody who needed treatment got
treatment?
Officer Jordan: That’s right.
Defense Counsel: Was there any urgency regarding the obtaining of a
warrant?
Officer Jordan: Not at that time.
Defense Counsel: Well, when you say not at that time, did it ever become
a time when there was some urgency about obtaining
a warrant?
Officer Jordan: A blood warrant?
Defense Counsel: Yes, sir.
Officer Jordan: No.
Defense Counsel: Was a blood warrant ever discussed?
Officer Jordan: No, it was not.
Defense Counsel: Had it been discussed, was there enough people there
to accomplish getting a blood warrant?
Officer Jordan: I’m not sure.
Later in his testimony, Officer Jordan said, “[T]he warrant never came up.”
Defense counsel asked, “There was never any discussion with [his superior] Lieutenant
McClure, listen, we should get a warrant but we don’t have enough time.” Officer Jordan
replied, “Right” and agreed “That never happened.” The evidence showed that Officer
Jordan did not attempt to acquire a warrant, and although officers who were present at
the scene had informed Officer Jordan that appellee may have been intoxicated, there
was no evidence that anyone attempted to acquire a warrant.
13
In addition, Officer Jordan testified that he did not transport appellee to the hospital.
Given that Officer Jordan stated that he was not concerned with obtaining a warrant and
that the evidence showed that he did not transport appellee to the hospital, we conclude
that the trial court’s finding is supported by the evidence. Moreover, the United States
Supreme Court has stated that if an officer can take steps to secure a warrant while the
suspect is being transported to a hospital by another officer, there would be no plausible
justification for an exception to the warrant requirement. McNeely, 133 S. Ct. at 1561.
Here, there is no evidence that Officer Jordan could not have taken steps to obtain a
warrant because he never even considered obtaining one.5 See Weems v. State, 434
S.W.3d 655, 666 (Tex. App.—San Antonio 2014, pet. granted) (finding no exigency
despite evidence that there had been an accident, the passenger had been injured, and
the defendant had been transported to the hospital and noting that the officer had made
no effort to obtain a warrant). Accordingly, we conclude that the trial court did not abuse
its discretion by concluding that the State failed to establish that an exigency existed.6
We overrule the State’s issue to the extent that it argues an exigency existed in this case.
C. Section 724.011’s Implied Consent
5 To the extent that the State may argue that Officer Doug McDonald’s testimony supports that
exigent circumstances existed in this case, we disagree because Officer McDonald stated he had no
knowledge whether the issue of acquiring a warrant was ever discussed and that “he did not handle any
part of the DWI investigation” and was “strictly [assigned] to the traffic accident.” Thus, he had no
knowledge regarding whether Officer Jordan could have taken steps to obtain a warrant, and Officer Jordan
did not testify that he could not have taken those steps. To the extent that the State relies on Officer Gary
Williams’s testimony, he agreed that he had nothing to do with this particular case and that he did not know
anything about it.
6 At oral argument, the State argued that Officer Jordan did not possess probable cause to obtain
a warrant at the scene of the accident even though other police officers told him appellee may have been
intoxicated. However, at the suppression hearing, the State made no such argument.
14
Citing section 724.011 of the Texas Transportation Code, the State argues that
pursuant to “the implied consent statute,” a person is deemed to have consented to the
taking of one or more specimens of the person’s blood for analysis to determine its alcohol
content if that person is intoxicated and “is arrested for an offense arising out of acts
alleged to have been committed while the person was operating a motor vehicle in a
public place.” See TEX. TRANSP. CODE ANN. § 724.011 (West, Westlaw through 2013 3d
C.S.). The State asserts that anyone who operates a motor vehicle has impliedly
consented to a blood draw.
Regarding implied consent, at the suppression hearing, the prosecutor stated:
Consent can be either [explicit] or implied. In this case, we did develop
some testimony, I believe from Officer Jordan, that he specifically asked for
consent and nothing was said. He instructed the nurse to go ahead and
take a blood sample, there was no indication that Mr.—the defendant in this
case, the suspect, refused or in anyway state[d] he refused to consent.
Apparently I don’t know if he stuck his arm out and allowed his arm to be
punctured and a blood sample be taken. So we, you know, we would argue
that’s an implied consent.
....
I think if you are going to look at whether consent occurred or not,
Judge, you have to look at what a reasonable person under the
circumstances would have understood and would of [sic] done. He was
asked to give consent,[7] he stood there mute and allowed a blood sample
to be taken. Would a reasonable person have said no? Would a reasonable
person have started to take the blood or started to attempt to swab his arm
down, which would have been normal; would he have pulled back, and said
no, I haven’t given consent or I refuse consent?
Aside from that, assuming that consent was not affirmative to be
given, which we think it may be a fact question. I just—if I may, I would like
7We note that Officer Jordan testified that he did not ask for consent for the blood draw because
he was relying on section 724.012, which he believed mandates a blood draw when the suspect has been
arrested for suspicion of driving while intoxicated and been involved in an accident where someone has
suffered an injury. See TEX. TRANSP. CODE ANN. § 724.012 (West, Westlaw through 2013 3d C.S.). It
appears from our review of the record that Officer Jordan believed that he could order the blood draw
without asking for consent and without obtaining appellee’s refusal to provide a specimen.
15
to say I think they are also presuming a terrible situation here where they
want to say there is a third option; which is simply to stand mute and neither
consent nor refuse, in which case the statute doesn’t allow, according to
them, the statute doesn’t allow you to take the draw at all.
Thus, the State’s argument at the suppression hearing was that appellee’s silence,
among other things, amounted to implied consent. The trial court concluded that there
was no consent and stated, “I think there has to be some sort of affirmative consent to
say that somebody consented in that situation. So I would find that there is no consent.”
At the suppression hearing, the State neither mentioned the implied consent
statute it cites on appeal nor argued that appellee impliedly consented to the warrantless
blood draw by driving on the roadway or obtaining a driver’s license as it now argues.
Thus, to the extent that the State now makes this argument, we conclude that it does not
comport with its argument to the trial court. See Bell v. State, 938 S.W.2d 35, 54 (Tex.
Crim. App. 1996) (explaining that the grounds raised on appeal must comport with the
objections made before the trial court). Moreover, we cannot reverse the trial court’s
judgment on grounds not presented to it. See State v. Rhinehart, 333 S.W.3d 154, 162
(Tex. Crim. App. 2011) (stating that “ordinary rules of procedural default” apply to “losing
party” in trial court); Hailey v. State, 87 S.W.3d 118, 121–22 (Tex. Crim. App. 2002) (“It is
well-settled that . . . it violates ordinary notions of procedural default for a Court of Appeals
to reverse a trial court’s decision on a legal theory not presented to the trial court by the
complaining party.”) (quotations omitted); State v. Mercado, 972 S.W.2d 75, 78 (Tex.
Crim. App. 1998) (en banc) (“[I]n cases in which the State is the party appealing, the basic
principle of appellate jurisprudence that points not argued at trial are deemed to be waived
applies equally to the State and the defense.”). Thus, we overrule the State’s issue to the
16
extent that it argues that “the implied consent statute” required that the trial court deny
appellee’s motion to suppress.
The State further argues in addressing the implied consent statute that appellee
“remained mute during the reading of [a license suspension warning] and allowed the
taking of his blood. Officer Jordan testified that no struggle ensued, no words were
exchanged, and [appellee] offered his arm.”8 However, the State neither cites to
appropriate authority nor provides any legal analysis concerning how these facts required
the trial court to deny appellee’s motion to suppress because implied consent served as
an exception to the warrant requirement. See TEX. R. APP. P. 38.1(i). Thus, to the extent
that the State attempted to argue that appellee impliedly consented and that his implied
consent served as an exception to the warrant requirement, we conclude that this
argument is inadequately briefed.9 See id. Accordingly, we overrule the State’s first issue
to the extent that it argues that the trial court should have denied appellee’s motion to
suppress on the basis that appellee remained mute and “allowed” the taking of his blood
sample.
D. Refusal
As previously stated, once appellee established that his blood sample was
obtained without a warrant, the burden shifted to the State to prove that an exception to
8Although on direct examination by the State, Officer Jordan agreed that appellee offered his arm,
on cross-examination by defense counsel, Officer Jordan said that appellee “didn’t physically go like, here
you go” by offering his arm and Officer Jordan did not recall whether appellee moved his arm at all.
9 When asked by appellee’s trial counsel, “Did he consent to a specimen,” Officer Jordan replied,
“No, he didn’t. . . . That’s right. He didn’t consent.” When asked, “All right. We are clear on that, he did
not consent . . . . And he didn’t refuse,” Officer Jordan said, “That’s right.” Officer Jordan agreed that
“consent or refusal” were not “an issue in [his] mind.” Later during his testimony Officer Jordan stated that
the blood draw “was mandatory, I didn’t give him a chance to agree.”
17
the warrant requirement existed; here the State alleged that section 724.012 provided
that exception. See Gutierrez, 221 S.W.3d at 685. At the suppression hearing, the State
invoked section 724.012 as an exception to the warrant requirement and argued that
Officer Jordan properly ordered the blood draw pursuant to that statute. Although we
have already determined that section 724.012 is not by itself an exception to the warrant
requirement, as has the court of criminal appeals, even assuming it is, we conclude that
the trial court properly granted the motion to suppress as explained below on the basis
that Officer Jordan failed to comply with section 724.012; thus, the State could not have
established that it applied in this case.
At the suppression hearing, Officer Jordan admitted that he had not asked for
appellee’s permission to take the blood draw and that appellee had not consented or
refused to provide a specimen. The prosecutor stated, “there was no indication that Mr.—
the defendant in this case, the suspect, refused or in anyway state[d] he refused to
consent,” and “I think they are also presuming a terrible situation here where they want
to say there is a third option; which is simply to stand mute and neither consent nor
refuse. . . .” Thus, the State conceded and acknowledged to the trial court that appellee
never refused to give a specimen to Officer Jordan. In response to the State’s argument
that appellee consented to the blood draw, appellee’s trial counsel said, “And we certainly
have no refusal if that were the case. . . .” The fact that Officer Jordan did not acquire
appellee’s refusal prior to taking the blood draw is undisputed, and the only evidence
presented by the State establishes that there was no refusal to provide a specimen.
Section 724.012 requires that “the person refuses the officer’s request to submit
to the taking of a specimen voluntarily” prior to the mandatory blood draw. TEX. TRANSP.
18
CODE ANN. § 724.012 (emphasis added). Therefore, as a matter of law, Officer Jordan
did not properly acquire appellee’s blood sample pursuant to section 724.012.
Accordingly, the trial court did not abuse its discretion by granting appellee’s motion to
suppress. See Alford, 400 S.W.3d at 929 (“Even if the trial court had limited its conclusion
of law to a particular legal theory, an appellate court would not be required to defer to that
theory under its de novo review.”); Armendariz, 123 S.W.3d 401 at 403 (holding that this
“rule holds true even if the trial court gave the wrong reason for its ruling.”). We overrule
the State’s sole issue.
IV. CONCLUSION
We affirm the trial court’s judgment.
/s/ Rogelio Valdez__
ROGELIO VALDEZ
Chief Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
18th day of June, 2015.
19
APPENDIX 2.
Electronic Docket Sheet.
Case Detail http://www.search.txcourts.gov/Case.aspx?cn=1...
CASE:
13-13-00335-CR
DATE FILED:
07/03/2013
CASE TYPE:
MISCELLANEOUS/OTHER CRIMINAL INCLUDING MISDEMEANOR OR FELONY
STYLE:
THE STATE OF TEXAS
V.:
JAVIER RODRIGUEZ
ORIG PROC:
NO
TRANSFER FROM:
1 of 12 7/1/2015 12:33 PM
Case Detail http://www.search.txcourts.gov/Case.aspx?cn=1...
TRANSFER IN:
TRANSFER CASE:
TRANSFER TO:
TRANSFER OUT:
PUB SERVICE:
AP P E L L AT E BRIE F S
DATE EVENT TYPE DESCRIPTION DOCUMENT
09/17/2014 ADDITIONAL AUTHORITIES FILED APPELLEE
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Case Detail http://www.search.txcourts.gov/Case.aspx?cn=1...
DATE EVENT TYPE DESCRIPTION DOCUMENT
09/17/2014 ADDITIONAL AUTHORITIES FILED APPELLANT
03/31/2014 SUPPLEMENTAL BRIEF FILED APPELLEE SUPPLEMENTAL BRIEF [ PDF/135 KB ]
BRIEF [ PDF/74 KB ]
03/24/2014 SUPPLEMENTAL BRIEF FILED APPELLANT
NOTICE [ PDF/55 KB ]
01/15/2014 APPENDIX RECEIVED APPELLEE
01/15/2014 BRIEF RECEIVED - ORAL ARGUMENT REQUESTED APPELLEE NOTICE [ PDF/56 KB ]
01/15/2014 BRIEF FILED - ORAL ARGUMENT REQUESTED APPELLEE BRIEF [ PDF/138 KB ]
12/09/2013 LETTER BRIEF FILED STATE BRIEF [ PDF/60 KB ]
10/21/2013 PETITION FOR WRIT OF MANDAMUS FILED RELATOR
BRIEF [ PDF/930 KB ]
09/30/2013 BRIEF FILED - ORAL ARGUMENT REQUESTED APPELLANT
NOTICE [ PDF/55 KB ]
CAS E E VE NT S
DATE EVENT TYPE DESCRIPTION DISPOSITION DOCUMENT
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Case Detail http://www.search.txcourts.gov/Case.aspx?cn=1...
DATE EVENT TYPE DESCRIPTION DISPOSITION DOCUMENT
CORRECTED PAGE 9
LETTER ISSUED BY [ PDF/34 KB ]
06/23/2015
THE COURT NOTICE
[ PDF/117 KB ]
JUDGMENT
[ PDF/37 KB ]
MEMORANDUM MEMORANDUM OPINION
06/18/2015 AFFIRMED
OPINION ISSUED [ PDF/263 KB ]
NOTICE
[ PDF/114 KB ]
09/17/2014 SUBMITTED
ADDITIONAL
09/17/2014 APPELLEE
AUTHORITIES FILED
ADDITIONAL
09/17/2014 APPELLANT
AUTHORITIES FILED
SET FOR NOTICE
08/07/2014 SUBMISSION ON CORPUS CHRISTI
[ PDF/104 KB ]
ORAL ARGUMENT
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Case Detail http://www.search.txcourts.gov/Case.aspx?cn=1...
DATE EVENT TYPE DESCRIPTION DISPOSITION DOCUMENT
TELEPHONE INQUIRY
05/02/2014 TO OR FROM THE
COURT
SUBMISSION NOTICE
05/02/2014
CANCELLED [ PDF/93 KB ]
SET FOR NOTICE
04/14/2014 SUBMISSION ON CORPUS CHRISTI
[ PDF/104 KB ]
ORAL ARGUMENT
SUPPLEMENTAL SUPPLEMENTAL BRIEF
03/31/2014 APPELLEE
BRIEF FILED [ PDF/135 KB ]
BRIEF
SUPPLEMENTAL [ PDF/74 KB ]
03/24/2014 APPELLANT
BRIEF FILED NOTICE
[ PDF/55 KB ]
SUBMISSION
02/27/2014 CORPUS CHRISTI
CANCELLED
JOINT - APPELLANT NOTICE
02/27/2014 MOTION DISPOSED GRANT MOTION
AND APPELLEE [ PDF/65 KB ]
5 of 12 7/1/2015 12:33 PM
Case Detail http://www.search.txcourts.gov/Case.aspx?cn=1...
DATE EVENT TYPE DESCRIPTION DISPOSITION DOCUMENT
JOINT - APPELLANT NOTICE
02/27/2014 MOTION DISPOSED GRANT MOTION
AND APPELLEE [ PDF/55 KB ]
MOTION TO
JOINT - APPELLANT
02/21/2014 POSTPONE ORAL
AND APPELLEE
ARGUMENT FILED
MOTION FOR
EXTENSION OF TIME
JOINT - APPELLANT
02/21/2014 TO FILE
AND APPELLEE
SUPPLEMENTAL
BRIEF FILED
ORDER PC
[ PDF/99 KB ]
02/14/2014 ORDER ENTERED
NOTICE
[ PDF/92 KB ]
SET FOR NOTICE
02/07/2014 SUBMISSION ON CORPUS CHRISTI
[ PDF/104 KB ]
ORAL ARGUMENT
MOTION FOR LEAVE NOTICE
01/30/2014 APPELLEE GRANT MOTION
DISPOSED [ PDF/55 KB ]
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Case Detail http://www.search.txcourts.gov/Case.aspx?cn=1...
DATE EVENT TYPE DESCRIPTION DISPOSITION DOCUMENT
MOTION FOR LEAVE
01/17/2014 APPELLEE
FILED
BRIEF FILED - ORAL BRIEF
01/15/2014 ARGUMENT APPELLEE
[ PDF/138 KB ]
REQUESTED
01/15/2014 RECORD CHECKED IN APPELLEE
01/15/2014 APPENDIX RECEIVED APPELLEE
BRIEF RECEIVED - NOTICE
01/15/2014 ORAL ARGUMENT APPELLEE
[ PDF/56 KB ]
REQUESTED
01/13/2014 RECORD CHECKED IN
RECORD CHECKED
01/03/2014
OUT
TELEPHONE INQUIRY
01/03/2014 TO OR FROM THE APPELLEE
COURT
BRIEF
12/09/2013 LETTER BRIEF FILED STATE
[ PDF/60 KB ]
RECORD CHECKED
11/04/2013 APPELLEE
OUT
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Case Detail http://www.search.txcourts.gov/Case.aspx?cn=1...
DATE EVENT TYPE DESCRIPTION DISPOSITION DOCUMENT
11/01/2013 MOTION DISPOSED
11/01/2013 MOTION DISPOSED
PETITION FOR WRIT
10/21/2013 OF MANDAMUS RELATOR
FILED
10/15/2013 DOCUMENT FILED STATE
10/15/2013 DOCUMENT FILED STATE
10/15/2013 DOCUMENT FILED STATE
MOTION OR WRIT NOTICE
10/02/2013 MOTION DISPOSED APPELLANT
DENIED [ PDF/54 KB ]
CASE READY TO BE
09/30/2013
SET
BRIEF
BRIEF FILED - ORAL [ PDF/930 KB ]
09/30/2013 ARGUMENT APPELLANT
NOTICE
REQUESTED
[ PDF/55 KB ]
09/30/2013 RECORD CHECKED IN STATE
09/26/2013 RESPONSE FILED APPELLEE
8 of 12 7/1/2015 12:33 PM
Case Detail http://www.search.txcourts.gov/Case.aspx?cn=1...
DATE EVENT TYPE DESCRIPTION DISPOSITION DOCUMENT
RECORD CHECKED
09/25/2013 STATE
OUT
RESPONSE
09/11/2013 REQUESTED BY THE
COURT
MOTION FOR
EXTENSION OF TIME MOTION OR WRIT
09/05/2013 APPELLANT
TO FILE BRIEF GRANTED
DISPOSED
08/27/2013 MOTION FILED APPELLANT
MOTION FOR
08/27/2013 EXTENSION OF TIME APPELLANT
TO FILE BRIEF FILED
MOTION TO ABATE MOTION OR WRIT
08/22/2013 APPELLANT
APPEAL DISPOSED DENIED
08/15/2013 RESPONSE FILED APPELLANT
08/14/2013 RESPONSE FILED APPELLEE
MOTION TO ABATE
08/06/2013 APPELLANT
APPEAL FILED
CLERKS RECORD
07/31/2013
FILED
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Case Detail http://www.search.txcourts.gov/Case.aspx?cn=1...
DATE EVENT TYPE DESCRIPTION DISPOSITION DOCUMENT
EXTENSION OF TIME
07/30/2013 TO FILE CLERKS DISTRICT CLERK GRANT MOTION
RECORD DISPOSED
EXTENSION OF TIME
07/30/2013 TO FILE CLERKS DISTRICT CLERK
RECORD FILED
REPORTERS RECORD
07/23/2013
FILED
REPORTERS RECORD
07/23/2013
RECEIVED NOT FILED
DOCKETING
07/15/2013 APPELLANT
STATEMENT FILED
NOTICE OF APPEAL
07/03/2013 FILED IN COURT OF APPELLANT
APPEALS
CAL E NDARS
10 of 12 7/1/2015 12:33 PM
Case Detail http://www.search.txcourts.gov/Case.aspx?cn=1...
SET DATE CALENDAR TYPE REASON SET
07/06/2015 STATUS MOTION FOR REHEARING DUE
PART IE S
PARTY PARTYTYPE REPRESENTATIVE
RODRIGUEZ, JAVIER APPELLEE HON. DONALD B. EDWARDS
HON. MICHAEL W. GORDON
HON. DOUGLAS K. NORMAN
THE STATE OF TEXAS CRIMINAL - APPELLANT
HON. CLARISSA FERNANDEZ
HON. MARK SKURKA
T RIAL COURT INF ORMAT ION
COURT:
319TH DISTRICT COURT
COUNTY:
11 of 12 7/1/2015 12:33 PM
Case Detail http://www.search.txcourts.gov/Case.aspx?cn=1...
NUECES
COURT JUDGE:
HONORABLE THOMAS GREENWELL
COURT CASE:
11-CR-3843-G
COURT REPORTER:
PUNISHMENT:
12 of 12 7/1/2015 12:33 PM
APPENDIX 3.
Order Denying Motion to Reconsider.
OFFICIAL NOTICE
13TH COURT OF APPEALS FILE COPY
100 E CANO ST 5TH FLOOR
EDINBURG TX 78539
October 2, 2013
Case No. 13-13-00335-CR
Style: THE STATE OF TEXAS
v. JAVIER RODRIGUEZ
Appellant’s motion to reconsider motion to abate and remand in the
above cause was this day DENIED by this Court.
T.C. Case# 11-CR-3843-G DORIAN E. RAMIREZ, CLERK
CLARISSA FERNANDEZ
ASST. DISTRICT ATTORNEY
901 LEOPARD ST., ROOM 205
MAIL TO: CORPUS CHRISTI, TX 78401
OFFICIAL NOTICE
13TH COURT OF APPEALS FILE COPY
100 E CANO ST 5TH FLOOR
EDINBURG TX 78539
October 2, 2013
Case No. 13-13-00335-CR
Style: THE STATE OF TEXAS
v. JAVIER RODRIGUEZ
Appellant’s motion to reconsider motion to abate and remand in the
above cause was this day DENIED by this Court.
T.C. Case# 11-CR-3843-G DORIAN E. RAMIREZ, CLERK
THE HONORABLE MARK SKURKA
DISTRICT ATTORNEY
901 LEOPARD STREET, ROOM 205
MAIL TO: CORPUS CHRISTI, TX 78401
OFFICIAL NOTICE
13TH COURT OF APPEALS FILE COPY
100 E CANO ST 5TH FLOOR
EDINBURG TX 78539
October 2, 2013
Case No. 13-13-00335-CR
Style: THE STATE OF TEXAS
v. JAVIER RODRIGUEZ
Appellant’s motion to reconsider motion to abate and remand in the
above cause was this day DENIED by this Court.
T.C. Case# 11-CR-3843-G DORIAN E. RAMIREZ, CLERK
DONALD B. EDWARDS
ATTORNEY AT LAW
P.O. BOX 3302
MAIL TO: CORPUS CHRISTI, TX 78463-3302