Smith v. State
| Decision Date | 13 November 2014 |
| Docket Number | No. 13–11–00694–CR.,13–11–00694–CR. |
| Citation | 557 S.W.3d 6 |
| Parties | William SMITH a/k/a Bill Smith, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
Donald B. Edwards, Corpus Christi, TX, for Bill Smith.
Bill Smith, pro se.
Mark Skurka, District Attorney, Douglas K. Norman, Assistant District Attorney, Corpus Christi, TX, for the State of Texas.
Before Justices GARZA, BENAVIDES, and PERKES.
After re-consideration of Missouri v. McNeely, 569 U.S. 141, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013) and the parties' supplemental briefing, we withdrew our memorandum opinion and judgment, dated October 31, 2013. See Smith v. State, No. 13–11–694–CR, 2013 WL 5970400 (Tex.App.-Corpus Christi Oct. 13, 2013, no pet.) (mem. op., not designated for publication). We replace it with the following opinion and judgment.
Appellant William Smith a/k/a Bill Smith appeals his conviction for driving while intoxicated-third offense,1 a third-degree felony enhanced to a habitual felony offender. See TEX. PENAL CODE ANN. §§ 49.04, 49.09(b)(2) (West, Westlaw through 2013 3d C.S.). The trial court found appellant guilty, and after finding two prior felony conviction enhancements to be true,2 assessed punishment at twenty-five years imprisonment. See id. § 12.42(d). In his original brief, appellant complains the trial court erred by: (1) refusing to appoint a new attorney on the day of trial; (2) admitting blood sample evidence; (3) allowing fingerprint expert testimony and admitting prior judgments authenticated thereby; and (4) finding the evidence was sufficient to show two prior felony convictions. In his supplemental briefs, he asserts two additional issues, which we construe together: (1) the trial court erred by allowing the State to introduce blood sample evidence at trial that was collected without a warrant and in violation of his Fourth Amendment rights; and (2) Section 724.012(b)(3)(B) of the Texas Transportation Code, which the State relied on to justify the search, is unconstitutional as applied. We reverse and remand.
State trooper David Anguiano stopped appellant for driving without wearing a seat belt. Upon approaching appellant's car, Anguiano "smelled the strong odor of some sort of alcoholic beverage coming from him" and saw numerous open alcoholic beverages spread throughout the vehicle. Anguiano observed that appellant's movements were slow and that he had glassy, blood-shot eyes. After further investigation, including administering the standardized field sobriety tests, Anguiano arrested appellant for driving while intoxicated.3
Anguiano testified that appellant made "a statement to the fact that it was a felony D.W.I. for him." Anguiano then "ran [appellant's] information" with his in-car computer and verified appellant's criminal history with the communications operator who informed Anguiano that appellant had two prior DWI convictions. Due to appellant's allegedly belligerent behavior, a different officer transported appellant to the hospital while Anguiano followed.4 At the hospital, Anguiano tried to obtain appellant's consent to take a blood specimen. When consent was not forthcoming, Anguiano informed appellant the blood draw was mandatory. Approximately one hour after the initial traffic stop, a certified medical technologist took a sample of appellant's blood.
Anguiano did not obtain a search warrant to collect appellant's blood sample. Instead, Anguiano relied solely on Texas Transportation Code section 724.012(b)(3)(B), which he interpreted to mean "you're authorized to conduct a mandatory blood draw on—if we have probable cause to believe that the person has two previous convictions ... for D.W.I. ..." After the blood was drawn and delivered to the Texas Department of Public Safety lab, Emily Bonvino, a forensic scientist, performed a chemical analysis of appellant's blood. During trial, she testified that appellant's blood sample contained .21 grams of alcohol per 100 milliliters of blood. Over appellant's objection on constitutional grounds, the trial court admitted the blood evidence.5
Appellant complains that the results of the blood test should have been excluded because his blood sample was taken in violation of the Fourth Amendment's prohibition against unreasonable searches and seizures. See U.S. CONST. amend. IV. The State argues that appellant's blood was seized pursuant to the Fourth Amendment exception of consent because section 724.012(b) of the Texas Transportation Code implies a person's consent to a blood draw. See TEX. TRANSP. CODE ANN. § 724.012(b) (West, Westlaw through 2013 3d C.S.). The State also defends the blood draw under the automobile, search-incident-to-arrest, and special needs exceptions. We disagree with the State.
We review a trial court's ruling on whether to admit or exclude evidence for abuse of discretion. State v. Dixon, 206 S.W.3d 587, 590 (Tex.Crim.App.2006) ; Martinez v. State, 867 S.W.2d 30, 39 (Tex.Crim.App.1993) (en banc). We view the facts in the light most favorable to the trial court's decision and we give almost total deference to a trial court's express or implied determination of historical facts and review de novo the court's application of the law to those facts. Dixon, 206 S.W.3d at 590 (citing State v. Ross, 32 S.W.3d 853, 856 (Tex.Crim.App.2000) ).
The Fourth Amendment to the United States Constitution provides that:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause....
U.S. CONST. amend IV. A warrantless search is presumed unreasonable. See United States v. Robinson, 414 U.S. 218, 224, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973). The taking of a blood sample is a search that triggers the protections of the Fourth Amendment. See Schmerber v. California, 384 U.S. 757, 770, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). However, there are several exceptions to the Fourth Amendment warrant requirement. Law enforcement may face a situation where exigent circumstances justify a warrantless search, such as a "hot pursuit" or the need to provide emergency assistance to a homeowner. See Michigan v. Fisher, 558 U.S. 45, 47–48, 130 S.Ct. 546, 175 L.Ed.2d 410 (2009) ; United States v. Santana, 427 U.S. 38, 42–43, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976). Exigent circumstances may justify a warrantless search in drunk driving investigations if police officers reasonably believe they face an emergency situation in which the delay necessary to obtain a warrant threatens the destruction of evidence. Schmerber, 384 U.S. at 770, 86 S.Ct. 1826.6
The United States Supreme Court discussed exigency in the context of unconsented, warrantless blood draws in Missouri v. McNeely, holding that "in 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." Missouri v. McNeely, 133 S.Ct. at 1567–68. The McNeely Court held that the determination of whether a law enforcement officer is justified in acting without a warrant turns on the totality of circumstances on a case-by-case basis. Id. at 1559.
Warrantless searches may also be premised on consent. See Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). After the McNeely decision, appellate courts distinguished McNeely by applying the implied consent principle found in sections 724.012(b)(3)(B) and 724.011. See TEX. TRANSP. CODE ANN. §§ 724.011, 724.012(b) (West, Westlaw through 2013 3d C.S.); Aviles v. State, 385 S.W.3d 110, 115 (Tex.App.-San Antonio 2012, pet. ref'd), vacated, 571 U.S. 1119, 134 S.Ct. 902, 187 L.Ed.2d 767 (2014). Those statutes provide a statutory scheme whereby the taking of blood and breath samples is premised on "implied consent." Texas law provides that in some situations, the taking of blood or breath evidence in a DWI investigation is required. See TEX. TRANSP. CODE ANN. §§ 724.011, 724.012(b). Section 724.012(b) of the Texas Transportation Code states:
The implied consent law does just that—it implies a suspect's consent to a search in certain limited instances. Beeman v. State, 86 S.W.3d 613, 616 (Tex.Crim.App.2002). While McNeely positively references the implied consent laws of various States, it also points out that the consequences associated with implied consent laws—typically loss of driving privileges and use of refusal as evidence—are triggered when the driver withdraws consent. McNeely, 133 S.Ct. at 1566 (emphasis added).
In Aviles v. State, our sister court in San Antonio held that the Texas Transportation Code expands the State's ability to search and seize without a warrant, providing implied consent to obtain blood samples from persons suspected of driving while intoxicated, in certain circumstances, even without a search warrant. See Aviles, 385 S.W.3d at 115. As recognized by both parties, the facts in Aviles are similar to the instant case:...
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