McGruder v. State; No.-11-05822-CRF

The Waco Court of Appeals finds that 724.012(b) is not facially unconstitutional.  It appears that the Appellant failed to make any other challenges to the blood draw other than the unconstitutionality of .012(b). The Court notes that no motion to suppress was filed requesting the suppression of the blood pursuant to the Fourth Amendment.  I do not think this the Court's endorsement of the mandatory blood draw statute. 

______________________________________________________________________

IN THE TENTH COURT OF APPEALS

No. 10-13-00109-CR

MICHAEL ANTHONY MCGRUDER,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 85th District Court

Brazos County, Texas

Trial Court No. 11-05822-CRF-85

OPINION

Michael Anthony McGruder was convicted of the offense of driving while intoxicated, a felony offense, and sentenced to 30 years in prison. See TEX. PENAL CODE ANN. § 49.04 (West 2011). Because section 724.012(b)(3)(B) of the Texas Transportation Code is not unconstitutional, we affirm the trial court’s judgment.

BACKGROUND

In September of 2011, McGruder was stopped by a College Station police officer because McGruder’s pickup matched the description of a suspicious vehicle in the area. After McGruder got out of his pickup, the officer who initially stopped McGruder and another officer who had arrived at the scene noted that, even from a distance, McGruder smelled of alcohol. McGruder responded to questioning by the officers and gave “nonsensical” and conflicting answers. He also refused to perform any field sobriety exercises. McGruder was arrested and refused to submit to a breath or blood test. After McGruder’s pickup was inventoried and towed, McGruder was taken to the police department where an officer began to prepare a search warrant to obtain a sample of McGruder’s blood. During the process of preparing the warrant, the officer learned that McGruder had two prior DWI convictions. At that time, the officer discontinued preparing the warrant and began working on the “mandatory blood draw” paperwork. The officer testified that a blood draw becomes mandatory when a DWI suspect has two prior DWI convictions. McGruder was then taken to the hospital and his blood was drawn.

OBJECTION AND ISSUE

At his trial in 2013, McGruder objected to the State’s introduction of the blood draw kit and the blood draw vial on the basis that section 724.012 of the Texas Transportation Code, the section which contains the mandatory blood draw provision, is unconstitutional in that it allows for the seizure of evidence without a warrant. fn1 The trial court overruled his objection. On appeal, McGruder contends in one issue that, absent exigent circumstances or consent, section 724.012(b)(3)(B) of the Texas Transportation Code violates the Texas and United States Constitutional provisions against unreasonable searches and seizures. We construe McGruder’s argument to be a facial challenge to the constitutionality of that portion of the statute. fn2

THE STATUTE

As it applies to this case, section 724.012(b) provides:

(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:
***
(3) at the time of the arrest, the officer possesses or receives reliable information from a credible source that the person:
***
(B) on two or more occasions, has been previously convicted of or placed on community supervision for an offense under Section 49.04, 49.05, 49.06, or 49.065, Penal Code, or an offense under the laws of another state containing elements substantially similar to the elements of an offense under those sections.
TEX. TRANSP. CODE ANN. § 724.012(b)(3)(B) (West 2011).

MCNEELY

Relying on the recent opinion from the United States Supreme Court in Missouri v. McNeely, ___ U.S. ___, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013), McGruder argues that because section 724.012(b)(3)(B) does not require any exigent circumstance for a warrantless blood draw, it impermissibly narrows the constitutional right to be free from unreasonable searches and seizures and should be declared unconstitutional.

Generally speaking, drawing blood from a suspect is a search and seizure within the scope of the Fourth Amendment to the United States Constitution. See Schmerber v. California, 384 U.S. 757, 767, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966). A warrantless seizure of a blood sample, however, can be constitutionally permissible if officers have probable cause to arrest a suspect, exigent circumstances exist, and a reasonable method of extraction is available. Id. at 767-68.

In McNeely, the United States Supreme Court addressed the issue of whether the Fourth Amendment required police to obtain a warrant before taking a blood sample from a non-consenting driver suspected of driving while intoxicated. McNeely, 133 S. Ct. at 1556. The Court concluded that the natural dissipation of alcohol in the bloodstream did not present a per se exigency that justified an exception to the warrant requirement for non-consensual blood testing in all DWI cases. Id. Instead, the Court recognized that, sometimes, exigent circumstances, based in part on the rapid dissipation of alcohol in the body, may allow law enforcement to obtain a blood sample without a warrant but that courts must determine on a case-by-case basis whether exigent circumstances exist, considering the totality of the circumstances. Id.

Prior to McNeely, at least one Texas appellate court had interpreted section 724.012(b) to be an exception to the Fourth Amendment warrant requirement; that is, no warrant was necessary to draw the defendant’s blood if he refused to consent to the blood draw and had two prior DWI convictions. See Aviles v. State, 385 S.W.3d 110, 112 (Tex. App.—San Antonio 2012, pet. ref'd), vacated, 134 S. Ct. 902, 187 L. Ed. 2d 767 (2014), op. on remand, ___ S.W.3d ___, 2014 Tex. App. LEXIS 8508 (Tex. App.—San Antonio Aug. 6, 2014, no pet. h.). But the United States Supreme Court vacated that court’s judgment and remanded the case to the court of appeals for further consideration in light of McNeely. Aviles, 134 S. Ct. at 902. Since then, Texas appellate courts have held that a non-consensual blood draw without a warrant pursuant to section 724.012(b) and without evidence of exigent circumstances other than simply the rapid dissipation of alcohol in the bloodstream violates a defendant’s Fourth Amendment rights.fn3 See Douds v. State, No. 14-12-00642-CR, 2014 Tex. App. LEXIS 6152 (Tex. App.—Houston [14th Dist.] June 5, 2014, pet. filed) (op. on rh’g) (publish); Weems v. State, No. 04-13-00366-CR, 2014 Tex. App. LEXIS 5109 (Tex. App.—San Antonio May 14, 2014, pet. filed) (publish); Reeder v. State, No. 06-13-00126-CR, 2014 Tex. App. LEXIS 4558 (Tex. App.—Texarkana April 29, 2014, pet. filed) (publish); Sutherland v. State, No. 07-12-00289-CR, 2014 Tex. App. LEXIS 3694 (Tex. App.—Amarillo, April 7, 2014, pet. filed) (publish); Villarreal v. State, No. 13-13-00253-CR, 2014 Tex. App. LEXIS 645 (Tex. App.—Corpus Christi Jan. 23, 2014, pet. granted) (publish). See also Baker v. State, No. 12-12-00092-CR, 2013 Tex. App. LEXIS 12818 (Tex. App.—Tyler Oct. 16, 2013, pet. granted) (not designated for publication) (trial court could have reasonably concluded State failed to show warrantless blood draw was supported by exigent circumstances). Contra Perez v. State, No. 01-12-01001-CR, 2014 Tex. App. LEXIS 2681 (Tex. App.—Houston [1st Dist.] Mar. 11, 2014, no pet. h.) (publish) (motion for rehearing filed; response requested by the court; response filed).

FACIAL CONSTITUTIONAL CHALLENGE

But McGruder asks us to find that section 724.012(b)(3)(B) is unconstitutional. To prevail on a facial challenge, a party must establish that the statute always operates unconstitutionally in all possible circumstances. State v. Rosseau, 396 S.W.3d 550, 557 (Tex. Crim. App. 2013). A facial challenge to a statute is the most difficult challenge to mount successfully because the challenger must establish that no set of circumstances exists under which the statute will be valid. Santikos v. State, 836 S.W.2d 631, 633 (Tex. Crim. App. 1992).

Whether a statute is facially constitutional is a question of law that we review de novo. Ex parte Lo, 424 S.W.3d 10, 14 (Tex. Crim. App. 2013). When the constitutionality of a statute is attacked, we begin with the presumption that the statute is valid and that the legislature has not acted unreasonably or arbitrarily. Id. at 14-15. The burden normally rests upon the person challenging the statute to establish its unconstitutionality. Id. at 15. In the absence of contrary evidence, we will presume that the legislature acted in a constitutionally sound fashion. Rodriguez v. State, 93 S.W.3d 60, 69 (Tex. Crim. App. 2002).

Section 724.012(b) merely requires an officer to take a blood or breath specimen in certain circumstances. What makes the statute mandatory is that the officer has no discretion in those situations to obtain either a blood or a breath specimen. It does not mandate, nor does it purport to authorize, a specimen be taken without compliance with the Fourth Amendment. And although the Court of Criminal Appeals has said that the implied consent law, the body of law in which this particular statute is contained, enables officers to draw blood in certain limited circumstances, a.k.a. exigent circumstances, even without a search warrant, the Court also said that the law did not give officers the ability to forcibly obtain blood samples from anyone just because they were arrested for DWI. Beeman v. State, 86 S.W.3d 613, 616 (Tex. Crim. App. 2002). Further, the Court did not hold in Beeman, and has not yet held, that section 724.012(b) is an exception to the Fourth Amendment’s warrant requirement such as the consent exception or the exigent circumstances exception. See Villarreal v. State, No. 13-13-00253-CR, 2014 Tex. App. LEXIS 645, *35 (Tex. App.—Corpus Christi Jan. 23, 2014, pet. granted) (publish).

Further, as written, section 724.012(b) does not require a blood or breath specimen to be taken contrary to the Fourth Amendment; that is, without a warrant or without a recognized exception to the warrant requirement. See Forsyth v. State, No. 11-12-00198-CR, 2014 Tex. App. LEXIS 8381, *22 (Tex. App.—Eastland July 31, 2014) (no pet. h.) (publish) (“…Section 724.012 does not instruct an officer to take a person's blood without a warrant or in violation of the Fourth Amendment,” citing Villarreal v. State, No. 13-13-00253-CR, 2014 Tex. App. LEXIS 645 (Tex. App.—Corpus Christi Jan. 23, 2014, pet. granted) (publish)).4 We agree with the Houston Court of Appeals when it aptly noted, “We have no reason to fault the constitutionality of the mandatory blood draw statute in this case because it did not require [the officer] to obtain a blood draw without first securing a warrant. It is the officer's failure to obtain a warrant and the State's failure to prove an exception to the warrant requirement, not the mandatory nature of the blood draw statute, that violate the Fourth Amendment.” Douds v. State, No. 14-12-00642-CR, 2014 Tex. App. LEXIS 6152, *48-49 (Tex. App.—Houston [14th Dist.] June 5, 2014, pet. filed) (op. on rh’g) (publish).

4 Other courts of appeals agree with this interpretation. See Douds v. State, No. 14-12-00642-CR, 2014 Tex. App. LEXIS 6152, *46 (Tex. App.—Houston [14th Dist.] June 5, 2014, pet. filed) (op. on rh’g) (publish); Weems v. State, No. 04-13-00366-CR, 2014 Tex. App. LEXIS 5109, * 24 (Tex. App.—San Antonio May 14, 2014, pet. filed) (publish); Reeder v. State, No. 06-13-00126-CR, 2014 Tex. App. LEXIS 4558, *14 n. 10 (Tex. App.—Texarkana April 29, 2014, pet. filed) (publish).

McGruder has failed to point us to anything else that would show the statute to be unconstitutional. Thus, McGruder’s facial challenge to the statute must fail, and we presume the statute to be constitutionally valid.

CONCLUSION

Accordingly, McGruder’s sole issue is overruled, and the trial court’s judgment is affirmed.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins

Affirmed

Opinion delivered and filed August 14, 2014
Publish


Footnotes:

1 McGruder later objected to the lab report which contained the blood alcohol content results of McGruder’s blood test by stating, “Renew my earlier objection.” He did not however, object to the chemist’s testimony prior to the introduction of the lab report that McGruder’s blood alcohol content was .09 grams per 100 milliliters. We note that there was no motion to suppress filed; only objections made to the various exhibits as they were introduced into evidence. The Amicus Curiae, presented by the Texas Criminal Defense Lawyers Association, argues the trial court erred in overruling the objections to the kit, vial, and lab report. The Amicus Curiae does not address the admission, without objection, of the blood alcohol content testimony. Nevertheless, this is not the issue that McGruder has presented on appeal. Rather, McGruder raises a direct challenge to the constitutional validity of the “mandatory” blood draw provision.
2 McGruder does not argue that the Texas Constitution provides any greater or different protection than the United States Constitution; thus we treat them as the same in this context. See Luquis v. State, 72 S.W.3d 355, 364 (Tex. Crim. App. 2002).
3 This is not the issue we have been asked to decide and express no opinion regarding that issue.

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DISSENTING OPINION

____________________________

Justice Rex. D. Davis, dissenting, 

At least six of our sister courts, based on Missouri v. McNeely, 133 S.Ct. 1552, 1556, 185 L.Ed.2d 696 (2013) and the Supreme Court’s treatment of Aviles v. State, 385 S.W.3d 110 (Tex. App.—San Antonio 2012, pet. ref’d), vacated, 134 S.Ct. 902, 187 L.Ed.2d 767 (2014), op. on remand, --- S.W.3d ---, 2014 WL 3843757 (Tex. App.— San Antonio Aug. 6, 2014, no pet. h.), have held that a warrantless, nonconsensual blood draw under Transportation Code section 724.012(b), absent exigent circumstances, violates the Fourth Amendment. Forsyth v. State, --- S.W.3d ---, ---, 2014 WL 3865777, at *8 (Tex. App.—Eastland July 31, 2014, no pet. h.); Weems v. State, --- S.W.3d ---, ---, 2014 WL 2532299, at *8 (Tex. App.—San Antonio May 14, 2014, pet. filed); Holidy v. State, No. 06-13-00261-CR, 2014 WL 1722171, at *4 (Tex. App.—Texarkana Apr. 30, 2014, pet. filed) (mem. op., not designated for publication); Reeder v. State, 428 S.W.3d 924, 930 (Tex. App.—Texarkana 2014, pet. filed); Sutherland v. State, --- S.W.3d ---, ---, 2014 WL 1370118, at *10 (Tex. App.—Amarillo Apr. 7, 2014, pet. filed); State v. Villareal, --- S.W.3d ---, ---, 2014 WL 1257150, at *11 (Tex. App.—Corpus Christi Jan. 23, 2014, pet. granted); see also Douds v. State, --- S.W.3d ---, 2014 WL 2619863 (Tex. App.—Houston [14th Dist.] June 5, 2014, pet. filed). But see Perez v. State, --- S.W.3d ---, ---, 2014 WL 943126, at *7 (Tex. App.—Houston [1st Dist.] Mar. 11, 2014, no pet. h.) (mot. for reh’g and mot. for en banc reh’g pending) (“We conclude that the warrantless taking of appellant’s blood sample in compliance with Transportation Code section 724.012(b) did not violate his Fourth Amendment rights by requiring him to submit to a warrantless blood test without his consent.”); see id. (also holding that appellant failed to raise constitutionality of statute in trial court).

While it appears that no court has explicitly passed on the facial constitutionality of section 724.012(b),1 some have criticized the statute from a Fourth-Amendment perspective with language that I believe indicates a facial problem with the statute:

 Forsyth, --- S.W.3d at ---, 2014 WL 3865777, at *7 (“we decline to hold that mandatory blood draws under the Texas Transportation Code are per se reasonable and further decline to hold that an officer is not required to obtain a warrant for the blood draw or show that the blood draw was conducted under a recognized exception to the warrant requirement.”).

 Holidy, 2014 WL 1722171, at *1 (“This appeal involves the sole question of the constitutionality of taking and testing blood under the implied consent provisions of Section 724.012(b)(3)(B)… . Because we are constrained by principles recently enunciated by the United States Supreme Court, we reverse the conviction herein based on the unconstitutionality of the statute and remand this case for a new trial.”).

 Sutherland, --- S.W.3d at ---, 2014 WL 1370118, at *10 (“To the extent that Section 724.012(b)(3)(B) can be read to permit, nonetheless, a warrantless seizure of a suspect’s blood in the absence of such exigent circumstances or the suspect’s consent, it runs afoul of the Fourth Amendment’s warrant requirement.”).

Section 724.012(b) does not explicitly require an officer to obtain a blood or breath sample without a warrant, but it also does not instruct an officer to obtain a warrant in the absence of exigent circumstances. And the common facts in our sister courts’ opinions and in this case are that the officer did not obtain a warrant solely because of section 724.012(b) and did compel or forcibly obtain a blood sample without the defendant’s consent solely because of section 724.012(b):2

 Forsyth, --- S.W.3d at ---, 2014 WL 3865777, at *2 (“A criminal history check and Appellant’s own admissions revealed that Appellant had two prior convictions for DWI. Appellant refused to submit to a breath or blood test. Relying on Section 724.012 of the Texas Transportation Code, Officer McDaniel transported Appellant to Brackenridge Hospital for a mandatory blood draw. … Officer McDaniel acknowledged that there were magistrates available to issue a search warrant twenty-four hours a day, but stated that he could not have secured a warrant because that ‘is not what you do according to law or policy.’”).

 Weems, --- S.W.3d at ---, 2014 WL 2532299, at *1, 3 (“No warrant was procured for the blood draw. … In this case, Officer Bustamante testified that the blood draw was administered because a person other than Weems suffered bodily injury and was transported to a hospital for medical attention. The State also points out that the THP–51 form, which was admitted in evidence, indicates that the blood draw was also ordered because Weems had two prior DWI convictions.”).

 Douds, --- S.W.3d at ---, 2014 WL 2619863, at *1, 3 (“Officer Tran took the appellant to a local medical center, Texas Emergency Care, for a mandatory blood draw. Officer Tran testified his decision to obtain a blood draw was based on his reasonable belief that section 724.012 of the Texas Transportation Code had been satisfied and allowed him to do so. … Nothing in the record suggests that any officer attempted to obtain a warrant authorizing the blood draw at any point. Indeed, the evidence does not mention a warrant at all. … Officer Tran testified that he ordered the mandatory blood draw under the authority of section 724.012 of the Texas Transportation Code.”).

 Holidy, 2014 WL 1722171, at *1 & n.2 (defendant, who had two prior DWI convictions, “was told by officers that he had no choice, so he ‘didn't argue’ with them about the blood draw”).

 Reeder, 428 S.W.3d at 926 (after defendant, who had two prior DWI convictions, “refused to give his consent to have his blood drawn and tested for alcohol, law enforcement officials took a blood specimen anyway and tested it under the authority of Section 724.012(b)(3)(B)”).

Id. (emphasis added). This statement is therefore inapplicable to the warrantless blood draw cases where the officers have been forcibly obtaining blood samples without warrants under the alleged authority of the statute. And because Beeman involved a warrant, its language about warrantless blood draws is dicta. See Weems, --- S.W.3d at ---, 2014 WL 2532299, at *3-4. Moreover, as intimated by the San Antonio court in Weems, the dicta in Beeman is likely not viable after McNeely. See id., --- S.W.3d at ---, 2014 WL 2532299, at *4 (“[w]e relied on this dicta in Beeman in Aviles”); see also Forsyth, --- S.W.3d at ---, 2014 WL 3865777, at *4 (“court’s explanation of implied consent law in Beeman is dicta”); id. (“Furthermore, the implied consent statute, at the time Beeman was issued, did not contain a provision directing officers to take the blood of a DWI arrestee that had previously twice been arrested for DWI.”).

 Sutherland, --- S.W.3d at ---, 2014 WL 1370118, at *1 (“[Officer] Housmans testified that, as justification for the warrantless blood draw, he relied solely on the provision in the Texas Transportation Code that requires him to obtain a sample of a suspect’s blood whenever he learns that the individual has been convicted two or more times of driving while intoxicated.”).

 Id., --- S.W.3d at ---, 2014 WL 1370118, at *2 (“Housmans conceded, too, that he did not seek out a magistrate the night appellant was arrested; it was Housmans’s understanding of Section 724.012 that he was not required to do so. In fact, Housmans testified that he understood Section 724.012 as placing upon him a duty to take appellant for a mandatory blood draw under the circumstances presented to him the night appellant was arrested: ‘I have no discretion. The statute says I shall.’ To fail to do so, he testified, would mean that he “would be violating the law.”).

 Villareal, --- S.W.3d at ---, 2014 WL 1257150, at *11 (“The officer’s sole basis for not getting a warrant was that the repeat offender provision of the mandatory blood draw law required him to take a blood sample without appellee’s consent and without the necessity of obtaining a search warrant.”).

Plainly, the statute’s silence on warrants explains the officers’ views that the statute authorizes them to compel warrantless blood draws. See Forsyth, --- S.W.3d at ---, 2014 WL 3865777, at *2 (“Officer McDaniel acknowledged that there were magistrates available to issue a search warrant twenty-four hours a day, but stated that he could not have secured a warrant because that ‘is not what you do according to law or policy.’”).

Because of the statute’s silence on warrants and the indisputable practice of warrantless blood draws based solely on the silent statute, and based on the Texas progeny of McNeely that border on a finding of facial unconstitutionality, I cannot agree with the majority that McGruder’s facial challenge to section 724.012(b) fails. See Holidy, 2014 WL 1722171, at *1 (“we reverse the conviction herein based on the unconstitutionality of the statute”); see also State v. Baker, No. 12-12-00092-CR, 2013 WL 5657649, at *4 (Tex. App.—Tyler June 5, 2013, pet. granted) (mem. op., not designated for publication) (citing State v. Mosely, 348 S.W.3d 435, 442 (Tex. App.—Austin 2011, pet. ref’d), for the proposition that “Chapter 724 does not authorize what the constitution forbids and cannot authorize an involuntary draw when the constitution forbids it”).

Accordingly, I respectfully dissent.

REX D. DAVIS
Justice
Dissenting opinion delivered and filed August 14, 2014
Publish

1 The majority quotes two sentences in a footnote from Douds that appear to be dicta. See Douds, --- S.W.3d at --- n.24, 2014 WL 2619863, at *15 n.24. In Sutherland, the appellant presented an apparent facial challenge: “In the absence of exigent circumstances or consent[,] does Section 724.012(b)(3)(B) violate the Texas and United States constitutional prohibitions against unreasonable searches and seizures where the statute requires law enforcement officers to seize a specimen of a DWI arrestee’s blood without a search warrant in all cases where the officer believes the arrestee has been previously convicted of DWI two or more times.” Sutherland, --- S.W.3d at ---, 2014 WL 1370118, at *3. But the court did not make an explicit facial review of the statute. And in Forsyth, the appellant failed to assert a facial complaint in the trial court. Forsyth, --- S.W.3d at --- n.1, 2014 WL 3865777, at *1 n.1.
2 In Beeman, the court of criminal appeals did state: “This does not give officers the ability to forcibly obtain blood samples from anyone arrested for DWI.” Beeman v. State, 86 S.W.3d 613, 616 (Tex. Crim. App. 2002). But the context of that sentence is important:

The dissent implies that we have given carte blanche to officers to draw blood in every single DWI case. But we have given police officers nothing more than the Constitution already gives them—the ability to apply for a search warrant and, if the magistrate finds probable cause to issue that warrant, the ability to effectuate it. This does not give officers the ability to forcibly obtain blood samples from anyone arrested for DWI. Instead, it gives officers the ability to present an affidavit to a magistrate in every DWI case, just like every other criminal offense. Whether any search ultimately occurs rests, as always, in the hands of the neutral and detached magistrate.

The text of this decision is from the appellate court's website, copied on the date of posting. I do not warrant the accuracy of the text, as it may have been amended since this posting, or an error may have occurred in formatting.

Ballard v, State; No. 11-13-00224-CR

Warrantless, Chapter 724 blood draw: "implied consent is not a recognized exception to the warrant requirement and that the State cannot rely on implied consent alone to justify a warrantless blood draw"
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Opinion filed July 31, 2014

In The Eleventh Court of Appeals

__________

No. 11-13-00224-CR

__________

THE STATE OF TEXAS, Appellant

V.

GARY MARK BALLARD, Appellee

On Appeal from the 441st District Court

Midland County, Texas

Trial Court Cause No. CR 41355

M E M O R A N D U M O P I N I O N

The grand jury indicted Gary Mark Ballard for the felony offense of driving while intoxicated. See TEX. PENAL CODE ANN. §§ 49.04, 49.09(b)(2) (West Supp. 2013). Appellee moved to suppress the results of his blood draw and argued that the officer illegally seized his blood. The trial court granted his motion to suppress. The State appeals the trial court’s ruling. We affirm.

In a single issue, the State contends that implied consent is a valid exception to the warrant requirement and, thus, because Appellee gave implied consent to a blood draw under Chapter 724 of the Texas Transportation Code, the trial court erred when it granted Appellee’s motion to suppress. Section 724.012 of the Texas Transportation Code provides that an officer “shall require the taking of a specimen of the person’s breath or blood . . . if the officer arrests the person for [DWI] and the person refuses the officer’s request to submit to the taking of a specimen voluntarily” and one of three circumstances are met. TEX. TRANSP. CODE ANN. § 724.012(b) (West 2011). The circumstance that is at issue in this case is that, “at the time of the arrest, the officer possesses or receives reliable information from a credible source that the person” has been twice convicted of DWI. See id. § 724.012(b)(3)(B). Section 724.011 provides that, if a person is arrested for DWI, the person is deemed to have consented to the submission of a specimen of breath or blood for analysis in order to determine the alcohol concentration in the person’s body. Id. § 724.011.

We review a trial court’s ruling on a motion to suppress under a bifurcated standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). We give great deference to the trial court’s findings of historical facts as long as the record supports the findings. Guzman v. State, 955 S.W.2d 85, 87 (Tex. Crim. App. 1997). Because the trial court is the exclusive factfinder, the appellate court reviews evidence adduced at the suppression hearing in the light most favorable to the trial court’s ruling. Carmouche, 10 S.W.3d at 327. We also give deference to the trial court’s rulings on mixed questions of law and fact when those rulings turn on an evaluation of credibility and demeanor. Guzman, 955 S.W.2d at 87. Where such rulings do not turn on an evaluation of credibility and demeanor, we review the trial court’s actions de novo. Id.

In this case, the parties agreed to the underlying facts and further agreed that there was no additional exigency arising out of the underlying facts. The dispute between the parties was whether the United States Supreme Court’s ruling in Missouri v. McNeely, 133 S.Ct. 1552 (2013), affected the constitutionality of mandatory blood draws under Chapter 724 of the Texas Transportation Code.

The agreed findings of fact show that Appellee was driving in Midland when his pickup hydroplaned and left the roadway. Appellee’s pickup came to a stop after it hit a barbed wire fence. No one was injured in the accident. Officers came to the scene and noticed a strong odor of alcohol on Appellee’s breath. One of the officers administered several field sobriety tests. Based on Appellee’s performance, the officer concluded that Appellee should be placed under arrest for DWI. The officer determined that Appellee had been previously convicted of a “DWI second” and asked Appellee if he would consent to a blood draw. Appellee refused, and the officer transported him to the Midland County Detention Center where a medical technician drew his blood. The results of the blood draw showed that Appellee had a blood alcohol level of 0.246.

In addition to the agreed findings of fact, the trial court also found that the officer did not attempt to secure a warrant or make an effort to determine if a magistrate was available. The trial court further found that the blood draw was done without the presence of exigent circumstances and that the State did not present any circumstances that suggested the officer faced an emergency in which she could not practically obtain a warrant. The trial court stated in its supplemental conclusions of law that mandatory blood draws taken pursuant to Chapter 724 of the Texas Transportation Code are affected by the United States Supreme Court’s ruling in McNeely and that McNeely requires an officer to articulate exigent circumstances beyond the natural dissipation of alcohol in order to negate the warrant requirement. The trial court further stated that, although McNeely did not abrogate the applicable section of the Texas Transportation Code, the opinion also did not address whether blood taken pursuant to the statute was constitutional. The trial court concluded that warrantless blood specimens taken pursuant to Section 724.011 are in violation of the Fourth Amendment and are therefore unconstitutional and are properly excludable from evidence. The trial court concluded that the blood draw was an unreasonable search in violation of the Fourth Amendment and granted Appellee’s motion to suppress the evidence.

On appeal, the State argues that an accused’s implied consent, under the Texas mandatory blood draw statute, is a valid exception to the “warrant preference.” The State contends that an accused does not have the right to refuse to provide a specimen when an officer has probable cause to believe that the accused has committed a DWI and has already been twice convicted of DWI. Thus, the State asserts that implied consent is irrevocable in such situations.

Appellee argues that voluntary consent is a recognized exception to the warrant requirement, but that implied consent has not been recognized as a valid exception. Therefore, because Appellee refused to submit to a blood draw and because the State presented no exigent circumstances beyond the normal dissipation of alcohol, the State failed to show that the search was valid under the exigent circumstances or consent exceptions to the warrant requirement.

We agree with Appellee that implied consent is not a recognized exception to the warrant requirement and that the State cannot rely on implied consent alone to justify a warrantless blood draw under the Texas Transportation Code. In Forsyth v. State, No. 11-12-00198-CR (Tex. App.—Eastland July 31, 2014, no pet. h.), an opinion we are also handing down today, we held that implied consent is not a recognized exception to the warrant requirement, and we discussed in great detail our reasoning behind our holding. See also Weems v. State, No. 04-13-00366-CR, 2014 WL 2532299 (Tex. App.—San Antonio May 14, 2014, pet. filed)(holding that the implied consent and mandatory blood draw statutory scheme found in the Transportation Code is not an exception to the Fourth Amendment’s warrant requirement; warrantless blood draw must be based on a well-recognized exception to the Fourth Amendment); Holidy v. State, No. 06-13-00261-CR, 2014 WL 1722171 (Tex. App.—Texarkana Apr. 30, 2014, pet. filed) (mem. op., not designated for publication) (holding that officer violated defendant’s Fourth Amendment rights when he took defendant’s blood pursuant to Section 724.012(b)(3)(B) without a warrant or exigent circumstances); Reeder v. State, 428 S.W.3d 924 (Tex. App.—Texarkana 2014, pet. filed) (op. on reh’g) (holding warrantless blood draw pursuant to repeat offender provision of implied consent statute violated the Fourth Amendment in absence of warrant or exigent circumstances); Sutherland v. State, No. 07-12-00289-CR, 2014 WL 1370118 (Tex. App.—Amarillo Apr. 7, 2014, pet. filed) (holding warrantless blood draw pursuant to repeat offender provision of implied consent statute violated Fourth Amendment’s warrant requirement in the absence of warrant or exigent circumstances or the suspect’s consent); State v. Villarreal, No. 13-13-00253-CR, 2014 WL 1257150 (Tex. App.—Corpus Christi Jan. 23, 2014, pet. granted) (holding repeat offender provision of the mandatory blood draw law did not constitute an exception to the Fourth Amendment’s warrant requirement).

Therefore, based on our reasoning and holding in Forsyth that implied consent is not a valid exception to the warrant requirement and because the State failed to show that there were exigent circumstances beyond the normal dissipation of alcohol, that Appellee voluntarily consented to the blood draw, or that any other valid exception to the warrant requirement applied in this case, we hold that the trial court did not err when it granted Appellee’s motion to suppress. We overrule the State’s sole issue on appeal.

We affirm the judgment of the trial court.

MIKE WILLSON
JUSTICE
July 31, 2014
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.

The text of this decision is from the appellate court's website, copied on the date of posting. I do not warrant the accuracy of the text, as it may have been amended since this posting, or an error may have occurred in formatting.

Aviles v. State; No.04-11-0877-CR

Texas Mandatory Blood Draw Statute is Not an Exception to the Fourth Amendment, rules the San Antonio Court of Appeals (again).

____________________________________________________________________________

Opinion:

Fourth Court of Appeals

San Antonio, Texas

OPINION

No. 04-11-00877-CR

______________________________________________________________

Antonio AVILES,

Appellant

v.

The STATE of Texas,

Appellee

_______________________________________________________________

From the 226th Judicial District Court, Bexar County, Texas

Trial Court No. 2011CR7244

Honorable Sid L. Harle, Judge Presiding

Opinion by: Marialyn Barnard, Justice

Sitting: Catherine Stone, Chief Justice

Karen Angelini, Justice

Marialyn Barnard, Justice

Delivered and Filed: August 6, 2014

REVERSED AND REMANDED

On original submission, this court held the trial court did not err in denying appellant Antonio Aviles’s motion to suppress the blood specimen drawn pursuant to section 724.012(b)(3)(B) of the Texas Transportation Code. Aviles v. State, 385 S.W.3d 110, 116 (Tex. App.—San Antonio 2012), vacated, 134 S.Ct. 902 (2014). Relying upon Beeman v. State, 86 S.W.3d 613, 616 (Tex. Crim. App. 2002), we held section 724.012(b)(3)(B) permits a police officer to take a blood specimen from DWI suspect without a warrant if the officer has credible information that the suspect has been previously convicted on at least two prior occasions of DWI. Id.

Aviles sought review in the Texas Court of Criminal Appeals, but that court refused his petition. Thereafter, Aviles filed a petition for writ of certiorari in the United States Supreme Court. The Supreme Court granted the petition, vacated our judgment, and remanded the matter to us for further consideration in light of the Court’s opinion in Missouri v. McNeely, 133 S.Ct. 1552 (2013). Aviles v. Texas, 134 S.Ct. 902, 902 (2014). After reviewing the denial of the motion to suppress in light of McNeely, we reverse the trial court’s judgment and remand the matter to the trial court for a new trial.

BACKGROUND

Aviles was arrested for DWI. Prior to trial, Aviles filed a motion to suppress the blood specimen taken without a warrant. At the hearing on the motion, the State presented one witness, the arresting officer, Joe Rios.

At the hearing, Officer Rios testified that on the night of the arrest, he saw a pickup truck veer across several lane markers. As he neared the truck, it again crossed the lane markers, veering into his lane. Because of the driver’s erratic handling of the truck, Officer Rios suspected the driver was intoxicated. Accordingly, the officer stopped the vehicle.

After he pulled the vehicle over and made contact with the driver, later identified as Aviles, Officer Rios noticed Aviles had bloodshot eyes, slurred speech, and was unsteady on his feet when he exited the truck. The officer asked Aviles to perform three standardized field sobriety tests — the horizontal gaze nystagmus (“HGN”), the walk-and-turn, and the one-leg-stand. Aviles complied and Officer Rios testified Aviles exhibited signs of intoxication on each test. Based on his erratic driving, appearance, and performance on the three field sobriety tests, Officer Rios arrested Aviles for DWI.

After the arrest, the officer used his mobile laptop to determine if Aviles had prior offenses. He discovered Aviles had two prior DWI convictions. Officer Rios asked Aviles if he would voluntarily give a breath or blood sample. When Aviles declined, Officer Rios, relying on section 724.012 of the Texas Transportation Code, took Aviles to a nurse assigned to the City of San Antonio magistrate’s office and required him to give a blood sample. Section 724.012(b)(3)(B) states: “[a] peace officer shall require the taking of a specimen of the person’s breath or blood under any of the following circumstances . . . [for example, if] at the time of the arrest, the officer possesses or receives reliable information from a credible source that the person[,] on two or more occasions, has been previously convicted of or placed on community supervision for an offense under Section 49.04 [DWI] . . . Penal Code.” TEX. TRANSP. CODE ANN. § 724.012(b)(3)(B) (West 2011). The blood specimen showed Aviles was legally intoxicated.

After hearing the evidence, the trial court denied Aviles’s motion to suppress. Thereafter, Aviles pled nolo contendere to the charge of DWI and was sentenced to two years’ confinement. Aviles appealed, contending the trial court erred in denying his motion to suppress.

As noted above, in the original appeal to this court, we affirmed the trial court’s judgment, holding the mandatory blood draw, taken without a warrant, was proper under section 724.012(b)(3)(B) of the Transportation Code. Aviles, 385 S.W.3d at 116. The Texas Court of Criminal Appeals refused Aviles’s petition, but the Supreme Court granted the petition and vacated our judgment, remanding the matter back to us for reconsideration in light of the Court’s decision in McNeely. Aviles, 134 S.Ct. at 902.

ANALYSIS

We permitted the parties to file amended briefs on remand. In his amended brief, Aviles contends that based on the Court’s decision in McNeely, the trial court erred in denying his motion to suppress because per se exceptions to the Fourth Amendment’s warrant requirement are impermissible. The State counters, arguing McNeely does not require a reversal in this case because it was a very narrow decision that merely held the natural dissipation of alcohol does not create a per se exigency in all DWI cases. Based on our prior decision in Weems v. State, No. 04-13-00366-CR, 2014 WL 2532299 (Tex. App.—San Antonio May 14, 2014, pet. filed), we agree with Aviles.

Standard of Review

Appellate courts review trial court rulings on motions to suppress under a bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007). With regard to a determination of historical facts, we afford great deference to a trial court’s determination. Id. This is because trial judges are uniquely situated to observe the demeanor and appearance of any witnesses. Wiede v. State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007). As the sole fact finder at a suppression hearing, a trial court may believe or disbelieve any portion of a witness’s testimony and make reasonable inferences from the evidence presented. Amador v. State, 275 S.W.3d 872, 878 (Tex. Crim. App. 2009). However, whether a specific search or seizure is reasonable or supported by probable cause is a question of law subject to de novo review. Dixon v. State, 206 S.W.3d 613, 616 (Tex. Crim. App. 2006).

Application

After the Supreme Court vacated our prior decision and remanded the matter back to this court, this court decided Weems. In Weems, we specifically considered the effect the Supreme Court’s decision to remand Aviles in light of McNeely had on our holding in Aviles that a warrantless blood draw of a DWI suspect, which was conducted pursuant to the provisions of section 724.012(b)(3)(B), did not violate the defendant’s rights under the Fourth Amendment. 2014 WL 2532299, at *7. After reviewing numerous Texas cases considering McNeely’s effect on section 724.012(b)(3)(B) — the mandatory blood draw statute — and the similar implied consent statute found in section 724.011 of the Transportation Code (footnote 1: Section 724.011(a) states that 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 while intoxicated, the person is deemed to have impliedly consented to the taking of a breath or blood specimen. TEX. TRANSP. CODE ANN. § 724.011(a) (West 2011).), we held that neither the mandatory blood draw statute nor the implied consent statute were exceptions to the Fourth Amendment’s warrant requirement.  Id. at *8.(footnote 2 :This court did not hold in Weems, and does not now hold, that sections 724.011(a) and 724.012(b)(3)(B) are unconstitutional. Rather, we merely held that under McNeely, these provisions did not create per se exceptions to the Fourth Amendment’s warrant requirement. The statutes may, in fact, be used for other purposes.)  We considered the State’s suggestion that we should balance the public and private interests implicated in serious DWI cases and hold the mandatory blood draw statute is a reasonable substitution for the warrant requirement. Id. We declined the State’s suggestion, holding that McNeely “clearly proscribed what it labeled categorical or per se rules for warrantless blood testing, emphasizing over and over again that the reasonableness of a search must be judged based on the totality of the circumstances presented in each case.” Id. (citing McNeely, 133 S.Ct. at 1560–63).

Looking at the mandatory blood draw statute and the implied consent statute, we held in Weems these statutes clearly create categorical or per se rules the McNeely court held were not permissible exceptions to the Fourth Amendment’s warrant requirement. Weems, 2014 WL 2532299, at *8; see TEX. TRANSP. CODE ANN. §§ 724.011(a), 724.012(b)(3)(B). We concluded that because the statutes “do not take into account the totality of the circumstances present in each case, but only consider certain facts,” an approach rejected in McNeely, the statutes were not substitutes for a warrant or legal exceptions to the Fourth Amendment warrant requirement. Id.

In this case, as in Weems, the State urges us to adopt a balancing test — balancing the public interests (public safety on roads and DWI enforcement) and the defendant’s “minimal” privacy interests — in DWI cases wherein the defendant has been convicted of two or more prior DWIs. This is the same approach we specifically rejected in Weems. See 2014 WL 2532299, at *8. 

The State also suggests that statutes such as the implied consent and mandatory blood draw statutes are permissible exceptions to the warrant requirement because they are searches pursuant to reasonable statutes or regulations. We hold this flies in the face of McNeely’s repeated mandate that courts must consider the totality of the circumstances of each case. 133 S.Ct. 1560–63. Thus, we reject the State’s suggested balancing and regulatory approach.

It is undisputed that Officer Rios did not obtain a warrant prior to requiring Aviles to submit to a blood draw. Once Aviles established the absence of a warrant, it was incumbent upon the State to prove the warrantless blood draw was reasonable under the totality of the circumstances. See Amador, 221 S.W.3d at 666, 672–73. The State may satisfy this burden by proving the existence of an exception to the warrant requirement. See Gutierrez v. State, 221 S.W.3d 680, 685 (Tex. Crim. App. 2007). Here the only exception to the warrant requirement proposed by the State was section 724.012(b)(3)(B), the mandatory blood draw statute. Because this is not a permissible exception to the warrant requirement, and the State has not argued or established a proper exception to the Fourth Amendment’s warrant requirement, we hold the blood draw violated Aviles’s rights under the Fourth Amendment, i.e., the blood draw was an unconstitutional search and seizure.

CONCLUSION

Based on the foregoing, we hold the warrantless blood draw violated Aviles’s rights under the Fourth Amendment. Therefore, the trial court erred in denying his motion to suppress. We sustain Aviles’s complaint and reverse the trial court’s judgment and remand this matter for a new trial in accordance with this court’s opinion.

Marialyn Barnard, Justice
Publish

The text of this decision is from the appellate court's website, copied on the date of posting. I do not warrant the accuracy of the text, as it may have been amended since this posting, or an error may have occurred in formatting.

Kay v. State, 01-13-00595-CR, from First Court of Appeals in Houston, Post-McNeely Warrantless Blood Draw

Warrantless Blood Draw Upheld in Houston First Court of Appeals.  The First Court of Appeals upheld the denial of a motion to suppress blood under McNeely.  In its decision, the Court noted that the defendant had not challenged the constitutionality of the statute itself.  This follows the First Court's decision in Perez, No. 01-12-01001-CR (rehearing pending) and is contrary to the Fourteenth Court's decision in Douds,  14-12-00642-CR (PDR requested).

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See more on this at my criminal procedure blog.
_________________________________________________________________________


Opinion issued July 24, 2014

In The Court of Appeals

For The First District of Texas

————————————

NO. 01-13-00595-CR

———————————

MILTON WAYNE KAY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 260th District Court

Orange County, Texas

Trial Court Case No. D-120519-R

MEMORANDUM OPINION

Appellant Milton Wayne Kay was charged by indictment for felony driving while intoxicated (“DWI”). See TEX. PENAL CODE ANN. § 49.04 (West Supp. 2013). The indictment further alleged an enhancement for two prior driving while intoxicated convictions, in 1989 and 2000. Kay moved to quash the indictment,

 arguing that his prior DWI convictions could not be used to enhance his DWI charge to a felony because they were over ten years old, and the trial court denied his motion. Kay also moved to suppress the warrantless blood draw and video recording, both of which were taken on the night of his arrest, and the trial court denied his motion.

A jury found Kay guilty and sentenced him to 19 years’ confinement in prison. In two issues, Kay (1) challenges the constitutionality of section 724.012 of the Texas Transportation Code, which requires a law enforcement officer to take a blood sample from a suspect arrested for driving while intoxicated when the suspect has refused to submit to the blood draw voluntarily and the officer has reliable information from a credible source that the suspect has two prior convictions for driving while intoxicated, and (2) argues that he was denied effective assistance of counsel. We affirm.

Background

On June 3, 2012, Officer P. McDonald1 of the Orange Police Department stopped Kay for not wearing his seatbelt and for having an expired vehicle registration sticker. While conducting the traffic stop, Officer McDonald smelled alcohol and observed Kay slurring his speech. Officer McDonald conducted field 

sobriety tests, and indicated that Kay was intoxicated, and then placed Kay under arrest and transported him to the Orange County Jail.

At the jail, Kay refused to submit to a blood draw voluntarily. However, when Officer McDonald had earlier placed Kay in custody, dispatch had provided Kay’s criminal history report to Officer McDonald. The report showed that Kay had two prior DWI convictions. Relying on section 724.012(b) of the Transportation Code, Officer McDonald directed a nurse at the jail to perform a warrantless blood draw on Kay. The results indicated that Kay had a blood alcohol concentration of .24 grams of ethanol per 100 milliliters of blood, which was three times the legal limit.

Kay moved to suppress the blood alcohol test’s results because the blood was taken without his consent and without a warrant. At the hearing on Kay’s motion to suppress, Officer McDonald testified that he ordered the blood draw because he had a good faith belief that Kay had two previous DWI convictions. The basis for his belief was Kay’s criminal history report, given to him by dispatch, which indicated Kay had two prior DWI convictions. The trial court denied the motion, explaining: “[B]ased upon the fact that the statute in the state of Texas does allow for the non-warrant blood draw if . . . the defendant has two prior convictions for DWI, which has been admitted and stipulated here, the Court is going to deny the Motion to Suppress as to the blood draw without a warrant.” It later denied Kay’s motion for new trial, which raised the same issue, along with two issues regarding jury instructions.

After Kay filed his notice of appeal, his trial counsel moved to withdraw. The appeal was abated and the trial court held a hearing at which it granted the request to withdraw and appointed new appellate counsel. During the same hearing, the trial court also heard testimony from Kay and his trial counsel regarding Kay’s contention that trial counsel rendered ineffective assistance by failing to convey a plea offer to Kay.

Transportation Code Section 724.012

Citing Missouri v. McNeely, 133 S. Ct. 1552 (2013), Kay contends that section 724.012 of the Texas Transportation Code is unconstitutional because it “impermissibly narrows [Kay’s] Constitutionally guaranteed right to be free from unreasonable searches of his person and seizure of his bodily fluids without a warrant and without any showing of exigent circumstances.”

A. Applicable Law

The taking of a blood specimen is a search and seizure under the Fourth Amendment. Schmerber v. California, 384 U.S. 757, 767, 86 S. Ct. 1826, 1834 (1966). A warrantless search or seizure is per se unreasonable, unless it falls under a recognized exception to the warrant requirement. Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 514 (1967); Walter v. State, 28 S.W.3d 538, 541 (Tex. Crim. App. 2000). One such exception is a search conducted pursuant to consent. See Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 2043–44 (1973). Likewise, implied consent law “implies a suspect’s consent to a search in certain instances. This is important when there is no search warrant, since it is another method of conducting a constitutionally valid search.” Beeman v. State, 86 S.W.3d 613, 615 (Tex. Crim. App. 2002).

Section 724.012(b)(3)(B) of the Texas Transportation Code provides implied consent to draw blood without a warrant in limited circumstance. It states: “[a] peace officer shall require the taking of a specimen of the person’s breath or blood . . . if the officer arrests the person for an offense under Chapter 49, Penal Code, involving the operation of a motor vehicle . . . and the person refuses the officer’s request to submit to the taking of a specimen voluntarily” if, “at the time of the arrest, the officer possesses or receives reliable information from a credible source that the person . . . on two or more occasions, has been previously convicted of . . . an offense under Section 49.04, 49.05, 49.06, or 49.065, Penal Code.” TEX. TRANSP. CODE ANN. § 724.012(b)(3)(B). Driving while intoxicated is an offense under section 49.04 of the Penal Code. See TEX. PENAL CODE ANN. § 49.04. When a person is arrested under the circumstances described in section 724.012(b), that person’s refusal to submit to the taking of the specimen does not suspend the officer’s statutory duty to take it. Id. § 724.013 (West 2011).

B. Analysis

Relying on McNeely, Kay contends that section 724.012 violates the Fourth Amendment. But Kay did not challenge the constitutionality of section 724.012 in the trial court. Rather, Kay’s argument in his motion to suppress and at the hearing on that motion was that (1) the blood draw was warrantless and taken over his refusal to voluntarily provide a blood sample and (2) Kay’s two prior convictions were too remote in time to serve as the two prior convictions required by section 724.012(b). At no point did Kay attack the constitutionality of section 724.012(b).

At the hearing on Kay’s motion to suppress, Kay’s counsel focused on the fact that Kay “did not agree for his blood to be taken,” and that the State had the burden to show there were circumstances present that allowed the State to take a warrantless blood draw.2 Counsel argued that

there may be exceptions where you don’t have to get a warrant under [McNeely]; but the State does have the burden of proof to carry that issue . . . [to show] what circumstances they don’t have to get a warrant, and we have agreed on the record no warrant was issued in this case . . . Kay did not agree for his blood to be taken . . . .

Counsel also argued that Kay’s two prior DWI convictions could not satisfy the statute because they were each more than ten years old. Counsel did not argue that section 724.012, the implied-consent statute, is unconstitutional under McNeely or otherwise.

Kay’s written motion to suppress likewise did not challenge the constitutionality of blood draws taken under the authority of section 724.012(b). Although Kay complained in his motion to suppress that the warrantless taking of his blood violated the United States and Texas Constitutions, he did so only generally:

[E]vidence in this case has been illegally obtained . . . in violation of the United States Constitution, the Texas Constitution, and Texas Statutory Laws . . . [T]he blood specimen was extracted from [Kay] without his permission and without a search warrant. Generally, tak[ing] of a blood sample is a search and seizure within the meaning of the Fourth Amendment to the United States Constitution . . . Article I, section 9 of the Texas Constitution requires that a search warrant be issued . . . In addition, Article 38.23 of the Texas Code of Criminal Procedure forbids any evidence obtained in violation of the law to be admitted against an accused . . . .
(Emphasis added). (Citations omitted).

Considered in context, we conclude that Kay’s complaint to the trial court was not sufficient to inform the trial court that Kay challenged the constitutionality of section 724.012(b). See Resendez v. State, 306 S.W.3d 308, 314 (Tex. Crim. App. 2009) (holding that “[o]nly when there are clear contextual clues indicating that the party was, in fact, making a particular argument will that argument be preserved”). The record demonstrates that Kay’s motion to suppress, as it was developed at the hearing, was based solely on the fact that the blood was drawn over his objection and without a warrant. Kay’s counsel seemingly ignored section 724.012 at the hearing; thus, even considering context, nothing in the record suggests that Kay alerted the trial court that he sought to challenge the constitutionality of the implied-consent statute authorizing Kay’s blood draw. See Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995) (holding that an “objection stating one legal theory may not be used to support a different legal theory on appeal,” even when asserting a constitutional challenge). Accordingly, we hold that Kay’s challenge to the constitutionality of section 724.012(b) was not preserved for our review. See TEX. R. APP. P. 33.1; see also Lyssy v. State, 429 S.W.3d 37, 41 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (holding that appellant waived his constitutional challenge to section 724.012(b) where “[t]he context of the motion to suppress, as it developed at the hearing, demonstrates that [appellant’s] challenge was based solely on a failure to observe the statute’s terms, not an attack on the constitutionality of what it authorizes.”).

We overrule Kay’s first issue.

Ineffective Assistance of Counsel

In his second issue, Kay contends that his trial counsel rendered ineffective assistance by failing to inform Kay of a plea offer. Kay contends this warrants reversal and reinstatement of the State’s plea offer.

A. Standard of Review and Applicable Law

Both the federal and state constitutions guarantee an accused the right to have the assistance of counsel. See U.S. CONST. amend. VI; TEX. CONST. art. I, § 10; TEX. CODE CRIM. PROC. ANN. art. 1.051 (West Supp. 2013). The right to counsel includes the right to reasonably effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063 (1984); Ex parte Gonzales, 945 S.W.2d 830, 835 (Tex. Crim. App. 1997). Both state and federal claims of ineffective assistance of counsel are evaluated under the two prong analysis of Strickland. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).

The first prong requires the appellant to demonstrate that counsel’s performance was deficient, meaning that counsel made errors so serious that he was not functioning as the “counsel” guaranteed by the Sixth Amendment. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. The second prong requires the appellant to show that counsel’s deficient performance prejudiced the defense. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. To establish prejudice, the appellant must prove there is a reasonable probability that but for counsel’s deficient performance, the result of the proceeding would have been different. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998). Unless an appellant can prove both prongs, an appellate court must not find counsel’s representation to be ineffective. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064.

There is a strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance. Thompson, 9 S.W.3d at 813; Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). On direct appeal, a reviewing court will rarely be able to fairly evaluate the merits of an ineffective-assistance claim because the record on direct appeal is usually undeveloped and inadequately reflective of the reasons for defense counsel’s actions at trial. Mata v. State, 226 S.W.3d 425, 430 (Tex. Crim. App. 2007). The lack of a clear record usually will prevent the appellant from meeting the first prong of Strickland, as the reasonableness of counsel’s choices and actions during trial can be proven deficient only through facts that do not normally appear in the appellate record. Id. In order for an appellate court to find on direct appeal that counsel was ineffective, counsel’s deficiency must be affirmatively demonstrated in the trial record. Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). When the record is silent as to counsel’s reasons for his conduct, finding counsel ineffective would call for speculation by the appellate court. Stults v. State, 23 S.W.3d 198, 208 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d). An appellate court will not speculate about the reasons underlying defense counsel’s decisions to find counsel ineffective. Id.; Jackson, 877 S.W.2d at 771.

B. Analysis

Kay filed a motion for new trial, but it did not raise an ineffective assistance claim. On appeal, he contends that the State offered a plea bargain of seven years in prison and that his trial counsel failed to communicate that offer to Kay. Kay further contends that his trial counsel failed to intelligently assess and communicate the offer because counsel misunderstood the law. Specifically, Kay argues that his trial counsel erroneously believed that the State was prohibited from using Kay’s two prior DWI convictions as predicates for a felony DWI charge because they were more than ten years old.

We abated this appeal and ordered the trial court to hold a hearing on Kay’s trial counsel’s motion to withdraw. On the same day that the trial court held a hearing on and granted the motion to withdraw, it heard testimony from Kay to the effect that no plea offer was communicated to him but that he had since been informed that there may have been a plea offer at some point.There is a supplemental reporter’s record of a “hearing to present additional evidence,” which the trial court held after Kay was appointed new appellate counsel.)

The trial court did not have authority to hold an evidentiary hearing regarding Kay’s ineffective assistance claim because our order of abatement did not provide for such a hearing. See TEX. R. APP. P. 25.2(g) (“Once the record has been filed in the appellate court, all further proceedings in the trial court—except as provided otherwise by law or by these rules—will be suspended until the trial court receives the appellate-court mandate.”). Even when an appeal is abated, “[a] trial court is not authorized to conduct an evidentiary hearing to develop a record of new testimony and other evidence that was not presented at trial, or developed on motion for new trial.” Lewis v. State, 711 S.W.2d 41, 43–44 (Tex. Crim. App. 1986) (emphasis in original) (holding that trial court “exceeded her authority under the mandate of abatement” by holding evidentiary hearing to develop evidence on ineffective assistance claim because appellant failed to present such evidence at trial or in motion for new trial). Accordingly, we do not consider the testimony from the evidentiary hearing that was held while the case was abated. Disregarding the evidence adduced at that hearing, the record does not affirmatively show that any plea offer actually was extended by the State or that Kay’s trial counsel failed to convey an offer to him. See Lopez, 343 S.W.3d at 142 (stating that the record must affirmatively demonstrate the alleged ineffectiveness to find ineffective counsel). Thus, we cannot conclude that Kay has established that his trial counsel’s representation fell below an objective standard of

reasonableness. See Jenkins v. State, No. 01-03-00185-CR, 2004 WL 1233996, at *7 (Tex. App.—Houston [1st Dist.] June 3, 2004, no pet.) (mem. op., not designated for publication) (holding appellant failed to show his counsel’s performance was deficient because there was no record that appellant’s counsel failed to inform him of plea offer or that State ever proposed plea bargain). Accordingly, we hold that Kay failed to meet the first prong of Strickland.

We overrule Kay’s second issue.

Conclusion

We affirm the trial court’s judgment.

Rebeca Huddle
Justice
Panel consists of Chief Justice Radack and Justices Massengale and Huddle.
Do Not Publish. TEX. R. APP. P. 47.2(b).

The text of this decision is from the appellate court's website, copied on the date of posting. I do not warrant the accuracy of the text, as it may have been amended since this posting, or an error may have occurred in formatting.