Perez v. State
| Decision Date | 05 May 2016 |
| Docket Number | NO. 14–14–00887–CR,14–14–00887–CR |
| Citation | 495 S.W.3d 374 |
| Parties | Rolando Perez, Appellant v. The State of Texas, Appellee |
| Court | Texas Court of Appeals |
Crespin Michael Linton, Houston, TX, for Appellant.
Michelle R. Townsend, Jeri Yenne, Angleton, TX, for State.
Panel consists of Justices Boyce, Busby, and Brown.
A jury convicted appellant Rolando Perez of felony driving while intoxicated (DWI). See Tex. Penal Code Ann. §§ 49.04, 49.09(b) (West Supp.2014). After appellant pled true to the enhancement paragraph for two previous DWI convictions, the trial court sentenced him to 12 years' confinement and a $5,000 fine.
On appeal, appellant seeks an acquittal on the ground that the evidence is legally insufficient to support his conviction for felony DWI. We hold the evidence is legally sufficient for a rational juror to find beyond a reasonable doubt that appellant committed the offense.
Appellant also seeks a new trial, contending that the trial court erred by denying his motion to suppress the results of an alcohol concentration test of his blood, which was drawn without a warrant under the mandatory blood draw provision of the Texas Transportation Code. We conclude that the taking of appellant's blood sample violated his Fourth Amendment rights because the State has not shown consent or any other applicable exception to the warrant requirement. We further conclude that the trial court's error in denying the motion to suppress was not harmless beyond a reasonable doubt. We therefore reverse the trial court's judgment and remand the case to the trial court.
At approximately 10:14 p.m. on September 5, 2012, Pearland Police Department Officer James Baldwin stopped a vehicle for speeding. As shown by video from the officer's dash camera, the vehicle pulled into a gas station parking lot where Officer Baldwin made contact with appellant, the vehicle's driver. When Officer Baldwin approached the vehicle, he detected a strong odor of an alcoholic beverage emanating from inside the cabin.
Officer Baldwin ran a criminal record check on appellant's driver's license and found it to be suspended. Officer Baldwin arrested appellant and, while placing him in the back of the patrol car, observed the odor of alcohol on appellant's breath. When asked how much he had to drink, appellant stated “one drink.” When asked to submit to field sobriety tests, appellant refused to participate without his attorney present. Appellant also refused to give a voluntary breath or blood sample.
Because appellant's record check had revealed two prior DWI convictions, Officer Baldwin took appellant to Texas Emergency Care of Pearland for a mandatory blood draw. In lieu of obtaining a warrant for a blood sample, Officer Baldwin testified that he elected to take a mandatory blood draw under section 724.012(b)(3)(B) of the Texas Transportation Code. The statute requires police officers to take a mandatory blood draw whenever they possess, at the time of arrest, reliable information from a credible source that the person has been previously convicted of two or more DWI offenses. Tex. Transp. Code Ann. § 724.012(b)(3)(B) (West 2011).
After arriving at Texas Emergency Care, appellant told Officer Baldwin that he had AIDS, which caused him to be adversely affected by alcohol. According to Officer Baldwin, appellant then allowed him to conduct the horizontal gaze nystagmus (HGN) test. Officer Baldwin observed six recognized clues of intoxication. Registered nurse Terry Kelsey withdrew two vials of blood from appellant. A blood test later revealed that appellant had a blood alcohol level of 0.142, nearly twice the legal limit.
Appellant filed a written motion to suppress the blood test results alleging, in part, violations of the Fourth Amendment of the United State Constitution; Article 1, Sections 9 and 10 of the Texas Constitution ; and Articles 1.05 and 38.23 of the Texas Code of Criminal Procedure. Appellant alleged the blood sample was taken in violation of the Fourth Amendment without his consent, without a warrant, and without the existence of any exigent circumstance.
In its response to appellant's motion, the State argued first that a warrantless blood draw is valid under the implied-consent framework of the Texas Transportation Code. Pursuant to the statute, if a person is arrested for a DWI-related offense while operating a motor vehicle in a public place, the person is deemed to have consented to the taking of one or more specimens of the person's breath or blood for analysis to determine alcohol concentration. Tex. Transp. Code Ann. § 724.011(a) (West 2011). Because consent is an established exception to the warrant requirement, the State claimed appellant's implied consent through the statute rendered the warrantless blood draw a reasonable search under the Fourth Amendment.
The State also offered other reasons why the blood draw was valid. Its second reason was that the search-incident-to-arrest exception to the warrant requirement applied because the scope of an officer's search may extend to obtaining a blood sample as long as it is reasonable under the circumstances. Third, the State argued that appellant's privacy interest in his blood is minimal and is therefore outweighed by the State's law-enforcement interest.
The parties agreed upon and submitted to the trial court a stipulation of evidence. No hearing was held. The trial court issued an order on July 18, 2014, making findings of fact based on the stipulation and providing conclusions of law denying appellant's motion to suppress. The trial court examined the recent United States Supreme Court decision in Missouri v. McNeely, in which the Court held that the natural dissipation of alcohol in the bloodstream does not constitute a per se exigency in every drunk-driving investigation, but must be evaluated on a case by case basis. 133 S.Ct. 1552, 1568 (2013). Because the State did not base its argument on the exigent-circumstances exception, the trial court concluded that McNeely did not apply to this case and did not foreclose the State from using implied consent as a basis for the warrantless blood draw.
In addition, the trial court relied on Johnston v. State, which held there is a presumption that venipuncture blood draws are reasonable under the Fourth Amendment. 336 S.W.3d 649, 660 (Tex.Crim.App.2011). The trial court also cited this Court's precedent in Franklin v. State for the proposition that a blood draw is permissible under the Fourth Amendment if the police were justified in requiring the suspect to submit to a blood test and employed reasonable means and procedures in taking the blood. Franklin v. State, No. 14–11–00961–CR, 2012 WL 3861970, at *6 (Tex.App.–Houston [14th Dist.] Sept. 6, 2012, no pet.) (mem. op., not designated for publication) ( police officers acted reasonably when extracting blood sample because procedure was carried out in accordance with acceptable medical practices by a registered nurse in a medical facility). The trial court concluded that appellant had not identified anything inherently unsafe about the environment in which the procedure took place and therefore failed to meet his burden of making a prima facie showing that the blood draw was not conducted in a reasonable manner.
Although not argued by the State, the trial court also concluded that the federal good-faith exception prevented suppression in this case. According to the trial court, section 724.012 of the Transportation Code is one of several Texas statutes that either permit or mandate warrantless searches or arrests.1 Under the circumstances in this case, the trial court believed Officer Baldwin acted in good-faith reliance on section 724.012, which mandated that he require appellant to submit to a warrantless blood draw. The trial court disagreed with and declined to follow this Court's holding in Douds (then on petition for review to the Court of Criminal Appeals) that the Texas exclusionary statute, Tex. Code Crim. Proc. Art. 38.23, does not incorporate federal judge-made exceptions for officers' good-faith reliance on existing statutes; instead, it only provides an exception for officers acting in good-faith reliance upon a warrant. Douds v. State, 434 S.W.3d 842, 861 (Tex.App.–Houston [14th Dist.] 2014), rev'd on other grounds, 472 S.W.3d 670 (Tex.Crim.App.2015). Despite the lack of a warrant, the trial court concluded that the history of Article 38.23 showed the good-faith exception applied in this case.
Finally, after upholding the officer's conduct under the good-faith exception to the exclusionary rule, the trial court declared the Texas exclusionary rule should not be applicable to this case. See Tex. Code. Crim. Proc. Ann. art. 38.23(a).
This court has not found, and has not been cited to, any case which holds that Chapter 724 of the Transportation Code is unconstitutional ... or that blood drawn under a statute or procedure similar to Chapter 724 of the Transportation Code would be illegally obtained or that Officer Baldwin would have had any reason to believe the blood evidence was illegally obtained. Therefore, Article 38.23 C.C.P should not be applicable in this case.
The trial court reasoned that because the statute mandating blood draws had not been held unconstitutional, evidence obtained pursuant to the statute was not obtained illegally; thus, the exclusionary rule does not apply.
The State called three witnesses in the guilt-innocence phase of trial. Registered Nurse Terri Kelsey testified that she drew appellant's blood under the direction of Officer Baldwin. Kelsey did not remember appellant being combative, nor did she testify that she had any conversation with appellant regarding consent. Officer Baldwin testified to the facts leading up to appellant's arrest and stated that he detected the odor of alcohol on appellant's breath. Officer Baldwin testified that a...
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