Case Information
*1 PD-0723-15
COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 7/15/2015 1:09:37 PM Accepted 7/17/2015 1:20:30 PM ABEL ACOSTA IN THE COURT CLERK OF CRIMINAL APPEALS OF TEXAS TROY SCOTT BURCIE, §
APPELLANT §
§
V. § PD-0723-15
§
THE STATE OF TEXAS, §
APPELLEE §
§ § § STATE'S PETITION FOR DISCRETIONARY REVIEW § § §
SHAREN WILSON Criminal District Attorney Tarrant County, Texas DEBRA WINDSOR, Assistant Criminal District Attorney Chief, Post-Conviction TANYA S. DOHONEY Assistant Criminal District Attorney Tim Curry Criminal Justice Center 401 W. Belknap
Fort Worth, Texas 76196-0201 (817) 884-1687 FAX (817) 884-1672 State Bar No. 02760900 ccaappellatealerts@tarrantcountytx.gov LISA C. MCMINN, State Prosecuting Attorney ORAL ARGUMENT IS NOT REQUESTED *2 IDENTITY OF THE PARTIES AND COUNSEL
The State of Texas is represented by the Hon. Sharen Wilson, Tarrant County Criminal District Attorney. Additionally, representing the
State on appeal is the Hon. Tanya S. Dohoney, Assistant Criminal District
Attorney and Hon. Debra Windsor, Post-Conviction Chief. At the trial level,
Hon. Erin Cofer and Hon. Tanya S. Dohoney represented the prosecution.
The State’s attorneys’ address is Office of the Criminal District Attorney of
Tarrant County, Tim Curry Criminal Justice Center, 401 W. Belknap, Fort
Worth, Texas 76196-0201.
Appellant, Defendant below, is Troy Scott Burcie. Hon. Abe Factor, Factor & Campbell, 5719 Airport Freeway, Fort Worth, Texas, 76117
represented Appellant at trial and now on appeal. Hon. Tim Robinson,
2010 N. Park Blvd., #112, Grapevine, Texas 76051 also represents
Appellant on appeal.
The Hon. Mollee Westfall, judge of the 371 st Judicial District Court in Tarrant County, Texas, presided over Appellant’s case.
ii
SUBJECT INDEX
PAGE IDENTITY OF THE PARTIES AND COUNSEL ........................................... ii
SUBJECT INDEX ...................................................................................... iii
INDEX OF AUTHORITIES .......................................................................... v
STATEMENT REGARDING ORAL ARGUMENT ........................................ 1
STATEMENT OF THE CASE ..................................................................... 2
STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE ............. 2
STATEMENT OF FACTS ........................................................................... 3
QUESTIONS PRESENTED FOR REVIEW ................................................. 4
FIRST QUESTION FOR REVIEW .............................................................. 4
Does a warrantless, nonconsensual blood draw conducted pursuant to T T RANSP C ODE § 724.012(b) violate the Fourth Amendment? (1CR at 21, 81–82; 2RR at 5, 61) SECOND QUESTION FOR REVIEW ......................................................... 4
Are Fourth Amendment warrant-preference exceptions the sole measure of Fourth Amendment reasonableness in warrantless scenarios? (1CR at 21, 81–82; 2RR at 5, 61) THIRD QUESTION FOR REVIEW .............................................................. 4
Do exclusionary rule principles mandate suppression of blood evidence seized via a warrantless, nonconsensual, valid-at-the- time mandatory blood draw? (1CR at 21, 81–82; 2RR at 5, 61) iii
ARGUMENTS AND AUTHORITIES ............................................................ 5
I. Valid, compelled statutory blood draw ............................................... 6
A. Codification of Fourth Amendment principles ............................ 7 B. Special-needs framework adds to the reasonableness calculation ................................................................................ 9 C. Erroneous consideration of the “Less Intrusive Means” test ......................................................................................... 10 II. Implied-consent draws are reasonable ............................................ 11
III. Exclusionary rule inapplicable and not invoked ................................ 13
CONCLUSION AND PRAYER .................................................................. 16
CERTIFICATE OF COMPLIANCE ............................................................ 17
CERTIFICATE OF SERVICE .................................................................... 17
APPENDIX ................................................................................................ A
iv
INDEX OF AUTHORITIES
Cases
Breithaupt v. Abram ,
352 U.S. 432 (1957) ................................................................................. 13
Burcie v. State ,
No. 08-13-00212-CR, 2015 WL 2342876
(Tex. App.—Fort Worth Mar. 14, 2015) ................................................... 3, 5
Cole v. State ,
454 S.W.3d 89 (Tex. App.—Texarkana 2014, pet. granted) .................. 5n, 6
Davis v. United States ,
564 U.S. ___, 131 S. Ct. 2419 (2011) ....................................................... 14
Douds v. State ,
434 S.W.3d 842
(Tex. App.—Houston [14th Dist.] June 5, 2014, pet. granted) ............... 5n, 6
Heien v. North Carolina ,
___ U.S. ___, 135 S. Ct. 530 (2014) ................................................... 15, 16
Holidy v. State ,
No. 06-13-00261-CR, 2014 WL 1722171
(Tex. App.—Texarkana Apr. 30, 2014, pet. granted)
(mem. op., not designated for publication) ................................................ 5n
Hulit v. State ,
982 S.W.2d 431 (Tex. Crim. App. 1998) ............................................. 11, 12
Illinois v. Krull,
480 U.S. 340 (1987) ................................................................................. 14
Maryland v. King ,
569 U.S. ___, 133 S. Ct. 1958 (2013) ....................................................... 12
v
McGee v. State ,
105 S.W.3d 609 (Tex. Crim. App. 2003) ................................................... 12
McGruder v. State ,
No. 10-13-00109-CR, ___ S.W.3d ___, 2014 WL 3973089
(Tex. App.—Waco 2014, pet. granted) ..................................................... 5n
Michigan Dept. of State Police v. Sitz ,
496 U.S. 444 (1990) ................................................................................. 12
Michigan v. DeFillippo ,
443 U.S. 31 (1979) ................................................................................... 15
Miles v. State ,
241 S.W.3d 28 (Tex. Crim. App. 2007) ....................................................... 7
Missouri v. McNeely ,
569 U.S. ___, 133 S. Ct. 1552 (2013) ................................................ passim
Reeder v. State ,
428 S.W.3d 930 (Tex. App.—Texarkana 2014, pet. granted) .................... 5n
Segundo v. State ,
270 S.W.3d 79 (Tex. Crim. App. 2008),
cert. denied , 558 U.S. 828 (2009) ............................................................. 12
Skinner v. Railway Labor Executives' Ass'n ,
489 U.S. 602 (1989) ....................................................................... 9, 10, 11
Smith v. State ,
No. 13-11-00694-CR, ___ S.W.3d ___, 2014 WL 5901759
(Tex. App.—Corpus Christi 2014, pet. granted) ........................................ 5n
Sotelo v. State,
913 S.W.2d 507, 510 (Tex. Crim. App. 1995) ......................................... 13n
State v. Villarreal ,
PD-0306-14, ___ S.W.3d ___,
2014 WL 6734178 (Tex. Crim. App. 2014) ......................................... passim
vi
Tharp v. State ,
935 S.W.2d 157 (Tex. Crim. App. 1996) ............................................... 9, 10
Vernonia School Dist. 47J v. Acton ,
515 U.S. 646 (1995) ................................................................................. 10
Weems v. State ,
434 S.W.3d 655 (Tex. App.—San Antonio 2014, pet. granted) ............ 5n. 6
Welsh v. Wisconsin ,
466 U.S. 740 (1984) ................................................................................... 8
Statutes, Rules, Constitutions
T EX . C ODE C RIM . P ROC . art. 14.04 ................................................................ 8
T EX . C ODE C RIM . P ROC . art. 18.16 ................................................................ 7
T EX . C ODE C RIM . P ROC . art. 38.23 ........................................................ 14, 16
T EX . P ENAL C ODE § 1.07 ............................................................................ 14
T EX . P ENAL C ODE § 49.04 ........................................................................ 2, 7
T EX . P ENAL C ODE § 49.09 ........................................................................ 2, 7
T EX . T RANS . C ODE § 524.012 ....................................................................... 9
T EX . T RANS . C ODE § 724.012 .............................................................. passim
T R. A PP P. 66.3 .................................................................................... 6
U.S. C ONST . amend. IV ......................................................................... 8, 11
vii
IN THE COURT OF CRIMINAL APPEALS OF TEXAS TROY SCOTT BURCIE, §
APPELLANT §
§
V. § PD-0723-15
§
THE STATE OF TEXAS, §
APPELLEE §
STATE’S PETITION FOR DISCRETIONARY REVIEW TO THE HONORABLE JUDGES OF
THE COURT OF CRIMINAL APPEALS:
Comes now the State of Texas, by and through her Tarrant County Criminal District Attorney, and respectfully urges this Court to grant
discretionary review of this cause in accordance with the rules of appellate
procedure.
STATEMENT REGARDING ORAL ARGUMENT Although the reasonableness of statutory mandatory blood draws merits argument, this Court has already granted petitions on similar issues
and heard arguments from other parties regarding the issues discussed
herein. Hence, the State does not request argument in this case.
STATEMENT OF THE CASE Appellant pled guilty to felony driving while intoxicated [DWI]. T EX . P ENAL C ODE §§ 49.04, 49.09. [1] (CR1:87–91, 93–94). At the time of the
offense, officers seized Appellant’s blood pursuant to the mandatory blood
draw contained in Texas’ implied consent law. T T RANSP C ODE
§724.012(b)(3). Before the El Paso Court of Appeals, Appellant relied on
the Supreme Court’s McNeely decision. Missouri v. McNeely , 569 U.S.
___, 133 S. Ct. 1552 (2013). The germane facts are undisputed, that is,
that the State relied on Texas’ mandatory blood-draw statute to support the
instant warrantless seizure. (2RR).
Appellant’s claim stems from an adverse pretrial ruling. (1CR at 93– 95). Following the May 2013 suppression hearing, the trial judge rejected
the defense argument attacking the validity of blood seized pursuant to the
Texas implied-consent statute. (1CR at 21, 81–82; 2RR at 5, 61).
Appellant later pled guilty pursuant to an agreement with the prosecution;
this appeal ensued. (1CR at 93–95).
STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE The El Paso Court of Appeals reversed the trial court’s suppression ruling in an unpublished opinion authored by Chief Justice Ann Crawford
*10 McClure; Justices Rodriguez and Hughes rounded out the panel. Burcie v.
State , No. 08-13-00212-CR, 2015 WL 2342876 (Tex. App.—Fort Worth
Mar. 14, 2015). No one sought rehearing. The State timely files this
petition, following one extension.
STATEMENT OF FACTS Appellant’s felony DWI arose when an officer saw him driving without his headlamps illumined. (2RR at 7–8). After the stop, the Fort Worth
officer discovered facts leading him to believe that Appellant drove while
intoxicated (slurred speech, bloodshot eyes, aroma of alcohol). (2RR at 8–
13). In the subsequent DWI investigation, the arresting officer sought a
mandatory specimen under the Texas implied-consent law because: 1) he
harbored probable cause to believe that Appellant committed DWI; 2) he
had received reliable information regarding Appellant’s two prior DWI
convictions; and 3) Appellant refused to provide a specimen. (2RR at 12–
13, 15–17, 19, 28–31). Therefore, an officer transported Appellant to the
county hospital for a compelled blood draw. T T RANSP C ODE
§ 724.012(b)(3). (2RR at 18–22, 25–26, 32–38; 3RR at SX2, SX3).
Additional evidence revealed that Fort Worth police officers have experience obtaining blood draw warrants and procedures in place to
facilitate such warrants. (2RR at 26–27, 33, 50–52). However, the
arresting officer did not seek a warrant because he relied on the existing
mandatory provisions of the Texas implied-consent statute. (2RR at 19,
27, 29, 36).
QUESTIONS PRESENTED FOR REVIEW FIRST QUESTION FOR REVIEW Does a warrantless, nonconsensual blood draw conducted pursuant to T T RANSP C ODE § 724.012(b) violate the Fourth Amendment?
(1CR at 21, 81–82; 2RR at 5, 61) SECOND QUESTION FOR REVIEW Are Fourth Amendment warrant-preference exceptions the sole measure of Fourth Amendment reasonableness in warrantless scenarios?
(1CR at 21, 81–82; 2RR at 5, 61) THIRD QUESTION FOR REVIEW Do exclusionary rule principles mandate suppression of blood evidence seized via a warrantless, nonconsensual, valid-at-the-time mandatory blood draw?
(1CR at 21, 81–82; 2RR at 5, 61) *12 ARGUMENT AND AUTHORITIES This Court is in the midst of grappling with the issues presented herein. Whilst a November 2014 decision addressed the merits of the
Fourth Amendment issue in one of the several McNeely -related cases then
pending, what appeared decided is now in flux since the Court granted –
2014 WL 6734178 (Tex. Crim. App. 2014) (reh’g granted, re-submitted
Mar. 18, 2015). [2] The El Paso court’s May decision heavily relied on
this Court’s original Villarreal opinion. Burcie , 2015 WL 2342876, at *1–4.
The State’s instant petition focuses on two aspects of any McNeely- related consequences: the validity of a statutorily-compelled draw and the
invalidity of the exclusionary rule’s application . Villarreal only resolved the
merits of the mandatory-draw issue, not addressing the applicability of the
*13 exclusionary rule. Villarreal , 2014 WL 6734178. Nevertheless, that issue
is already before this Court. See Cole , 454 S.W.3d at 89 (fourth ground
granted); see also Weems , 434 S.W.3d at 666 (applying exclusionary rule);
Douds , 434 S.W.3d at 861–62 (same). In other words, this Court has
already granted review on both issues presented herein.
This Court should grant review because this case focuses on: important legal questions that have not yet been finally addressed; matters
in conflict in the interim appellate courts; the misinterpretation of a Supreme
Court decision; and the misapplication of that Supreme Court case to
Texas implied-consent statute. T R. A PP P. 66.3(a)(b)(c)(d)(f).
I. Valid, compelled statutory blood draw
The State’s appellate stance is in lockstep with that of prosecutors from other counties across the State who have already had cases granted
for review on a McNeely -related issue. Hence, the State respectfully asks
this Court to dispose of the instant case in a manner consistent with the
petitions in Villarreal , Douds , Weems , Reeder , Smith , McGruder , Holidy ,
and Cole . Here, the officer reasonably relied on an existing, ubiquitous
narrowly-focused, reasonable statute to obtain a compelled blood draw.
The seizure occurred when the officer—at the time of the offense—
possessed probable cause that Appellant’s impaired and intoxicated
conduct constituted felony DWI. T EX . P ENAL C ODE §§ 49.04, 49.09; T EX .
T RANSP . C ODE § 724.012(b)(2).
In addition, the State differs with Villarreal’s original-submission decision and further asserts that several important arguments should be
considered on the merits.
A. Codification of Fourth Amendment principles Villarreal failed to consider that the implied-consent statute codified Fourth Amendment principles. For instance, this Court has previously
recognized a statutory codification of the exigency exception. See Miles v.
State , 241 S.W.3d 28, 39–40 n.54 (Tex. Crim. App. 2007) ( citing T EX . C ODE
C RIM . P ROC . art. 18.16). McNeely recognized that every case involving the
dissipation of alcohol included some exigency. McNeely , 133 S. Ct. at
1561, 1568. This ever-present exigency must be considered when
assaying the reasonableness of statutory draws.
Combine the static alcohol-evaporation-exigency consideration with the Legislature’s clear codification of the gravity-of-the-offense exigency.
The implied-consent statute extinguished a defendant’s right to refuse
where an officer possesses probable cause to believe that certain
enumerated, egregious circumstances exist. T T RANSP C ODE
§ 724.012(b). Defendants only lose their refusal right under carefully
circumscribed scenarios involving felonious intoxication-related offenses
and/or resultant injuries necessitating hospitalization. Id. The statute only
applies to the most serious categories of DWI offenders.
This statutory limitation amounts to a codification of an additional recognized exigency unrelated to blood-alcohol dissipation. Welsh v.
Wisconsin held that the Fourth Amendment authorizes common-sense
consideration of the underlying offense’s gravity when weighing the
existence of an exigency. Welsh v. Wisconsin , 466 U.S. 740, 751–52
(1984) (exigency calculations include consideration of a crime’s severity).
Consideration of a crime’s gravity is the essence of reasonableness
because the State’s interest is greater in a more serious case. Cf . T EX .
C ODE C RIM . P ROC . art. 14.04 (authorizing warrantless arrests for felonies
where an officer did not observe the offense).
Of course, it almost goes without saying that Texas’ implied-consent legislation codified Fourth Amendment probable cause requirements. U.S.
CONST. amend. IV. Predicate elements of the implied consent statute
codify this well-known quantum-of-evidence as a requirement for a
compelled search. T T RANSP C ODE § 724.012(b). The probable cause
requirement—in tandem with the codified gravity-of-the-crime and
dissipation-of-alcohol exigencies—creates a neutral, non-arbitrary
framework authorizing a narrowly-defined seizure from an already-in-
custody arrestee. These refinements in the implied-consent statutes
structure embrace the essence of Fourth Amendment reasonableness.
B. Special-needs framework adds to the reasonableness calculation
The now-withdrawn Villarreal decision rejected application of the Supreme Court’s special needs doctrine to the mandatory blood draw
framework. Villarreal , 2014 WL 6734178, at *14–15; see Skinner v.
Railway Labor Executives’ Ass’n , 489 U.S. 602, 619 (1989). However, the
Court did not consider that blood drawn pursuant to Chapter 724’s mandate
also implicates administrative license revocation [ALR] procedures, a
separate regulatory process that focuses on protecting the traveling public
by removing offenders from the road. See T T RANSP C ODE
§ 524.012(b)(1) (mandating license suspension based upon BAC).
“The primary purpose of the administrative license suspension statute is not to deter the licensee or to seek retribution, but to protect the public
from the carnage on the public roads of Texas caused by drunk drivers.”
Tharp v. State , 935 S.W.2d 157, 159 (Tex. Crim. App. 1996). Such
regulation focuses on the government’s strong interest in removing
intoxicated drivers from the road, just as railroad regulation in Skinner
sought to increase railway safety by detecting intoxicated employees.
Compare Skinner , 489 U.S. at 620–21 with Tharp , 935 S.W.2d at 159.
Special needs’ principles recognize the statute’s provision of a neutral, detached vehicle for protecting citizens from impaired drivers and
defendants from unfettered discretion. The special-needs exception
constitutes another factor to consider in a non-dualistic analysis that
renders Texas’ compelled-draw framework reasonable.
C. Erroneous consideration of the “Less Intrusive Means” test
The original Villarreal decision considered the ready availability of warrants when rejecting the validity of Texas’ mandatory draw statute.
Villarreal , 2014 WL 6734178, at *18 (finding no compelling need to uphold
warrantless, nonconsensual blood searches where warrants are “often
readily available”). However, factors such as electronic warrants and the
availability of a magistrate shift the focus away from an officer’s conduct
and, instead, weigh considerations of alternative means. But see McNeely ,
133 S. Ct. at 1560–64 (Part IIB’s alternative means analysis applied when
determining whether per se exigency existed).
The Supreme Court resoundingly rejected applying less-intrusive- alternative-practices arguments to Fourth Amendment cases not resolved
under the exigency exception. Vernonia School Dist. 47J v. Acton , 515
U.S. 646, 663–64 n.3 (1995) (upholding warrantless, random urine
screening of athletes after considering diminished privacy,
unobtrusiveness, and severity of need, spurning arguments relying on less
intrusive alternatives); Skinner , 489 U.S. at 629 n.9 (upholding random,
suspicionless drug screening of railway employees under special needs
exception and discarding less-drastic-and-equally-effective-means
arguments). One footnote in Skinner flatly debunks the propriety of
considering less-drastic alternatives in scenarios that include warrantless
and even suspicionless seizures for toxicological testing, similar to
Appellant’s facts. Id.
The State maintains that less-restrictive-alternatives logically apply when a seizure’s validity rests solely on the temporal factors presenting an
exigency; less-drastic, post-hoc what-ifs do not apply, however, to
reasonableness calculations factoring in other warrantless exceptions.
Hence, Villarreal’s analysis mistakenly applied this eschewed construct.
II. Implied-consent draws are reasonable
Reasonableness has always been the linchpin of the Fourth Amendment, venerated in the provision’s plain language. U.S. C ONST .
amend IV; Hulit v. State , 982 S.W.2d 431, 435–36, 438 (Tex. Crim. App.
1998). Discernment of what is “reasonable” requires courts to consider the
balance between an individual’s privacy and legitimate governmental
interests, especially when public safety is of utmost concern. See
Maryland v. King , 569 U.S. ___, 133 S. Ct. 1958, 1979 (2013); Michigan
Dept. of State Police v. Sitz , 496 U.S. 444, 455 (1990); Segundo v. State ,
270 S.W.3d 79 (Tex. Crim. App. 2008), cert. denied , 558 U.S. 828 (2009).
Villarreal viewed the choice between applying a Fourth Amendment
exception and consideration of a reasonableness balancing approach as
mutually exclusive analytical constructs. The State respectfully believes
that this black-white consideration of these two concepts is mistaken,
especially in light of the fact that this Court has relied upon the balancing
approach to assay reasonableness on similar issues. See Segundo , 270
S.W.3d at 96–99; McGee v. State , 105 S.W.3d 609 (Tex. Crim. App. 2003);
Hulit , 982 S.W.2d at 434 n.1, 436.
Again, the statute is reasonable. Years ago, the Supreme Court recognized that a framework requiring a driver’s consent was anything but
nonsensical. The Breithaupt court pointed to then recently adopted
implied-consent provisions and wrote:
It might be a fair assumption that a driver on the highways in obedience to a policy of the State, would consent to have a blood test made as part of a sensible and civilized system protecting himself as well as other citizens not only from the hazards of the road due to drunken driving, but also from some use of dubious lay testimony.
Breithaupt v. Abram , 352 U.S. 432, 435 n.2 (1957). The State contends
that compelled draws under implied-consent provisions are inherently
reasonable when weighing the needs of all involved. Indeed, Fourth
Amendment reasonableness underpins the statute. The well-known
exceptions—as argued in the myriad cases already before this Court—
considered individually and in concert with each other, alongside a
balancing of the competing interests, all support the continued viability of
Texas’ implied-consent framework.
III. Exclusionary rule inapplicable and not invoked [3]
Statutory mandatory blood-draws are reasonable. But see Villarreal ,
2014 WL 6734178 (opinion on original submission; under re-submission).
When the ink dries on Villarreal and future McNeely -related decisions and if
those cases are adverse to the State on the merits, the rules requiring
evidence exclusion should not apply to mandatory blood-draw scenarios
that occurred prior to the Supreme Court’s April 2012 pronouncement.
Federally, the good-faith exception to the Fourth Amendment’s exclusionary rule applies when law enforcement, at the time of the search,
*21 acted with objectively reasonable reliance on (1) a statute, later declared
unconstitutional, or (2) binding judicial precedent, subsequently overruled.
Illinois v. Krull , 480 U.S. 340, 349–57 (1987) (statutes); Davis v. United
States , 564 U.S. ___, 131 S. Ct. 2419, 2428–34 (2011) (caselaw).
Under state law, the Texas exclusionary rule is not invoked because—at the time of the offense—no violation occurred. The State
recognizes that article 38.23(b)—Texas’ limited good faith exception—
requires a warrant. T EX . C ODE C RIM . A PP . § 38.23(b). Notwithstanding,
invocation of exclusionary rule principles relies on article 38.23(a). That
subsection’s plain language requires a violation for exclusion to be
triggered. When Appellant’s blood was drawn, no one credibly questioned
the validity of the officer’s statutory authority. In other words, at the time of
the seizure, the officer followed then-existing law. See T EX C ODE C RIM .
P ROC . art. 38.23(a); see also T P ENAL C ODE § 1.07(a)(30) (defining “law”
as meaning the state and federal constitution and statutes, in addition to
the written opinions of a court of record); see also Davis , 131 S. Ct. at
2427–28 (“obtained” applies to unlawfulness at the time of the seizure;
exclusion not triggered in an absence of police culpability). Simply put, the
instant circumstances do not invoke exclusion.
The Supreme Court mentioned, in dictum , the application of the exclusionary rule versus Fourth Amendment violations in a non-blood-draw
scenario decided recently. In Heien , the Court weighed the validity of an
investigatory stop where the officer misunderstood the traffic code provision
he relied on to support the stop. See Heien v. North Carolina , ___ U.S.
___, 135 S. Ct. 530, 538–39 (2014). The Supreme Court considered the
reasonableness of the officer’s mistake that lead to the stop and arrest
when considering remedies. In so doing, the Court pointed out the myriad
decisions finding exclusionary-rule invocation inappropriate where the
officer’s conduct—valid at the time—was later declared unconstitutional.
Id . With only one justice dissenting, the Supreme Court’s decision
pondered the exclusionary rule’s limits which had been briefly considered in
Michigan v. DeFillippo. Heien , 135 S. Ct at 538–39; see generally
Michigan v. DeFillippo , 443 U.S. 31, 3–9 (1979) (suggesting that exclusion
might have been appropriate had the provision been “grossly and flagrantly
unconstitutional”).
Although the Heien discussion is merely dicta , it reiterates the importance of focusing on the fact that the instant officer’s conduct fully
complied with mandatory, settled law at the time of Appellant’s arrest.
Heien , 135 S. Ct. at 538–39. McNeely and subsequent caselaw
questioning implied-consent blood draws came later. Since, no violation
occurred at the time of the Appellant’s 2011 blood draw, Texas’
exclusionary provision does not apply. T C ODE C RIM P ROC . art.
38.23(a). And since any legal error by the officer was reasonable, Fourth
Amendment cases do not mandate the remedy of exclusion. See Heien ,
135 S. Ct. at 539.
CONCLUSION AND PRAYER Review should be granted and the decision of the Court of Appeals should be reversed; Appellant’s felony DWI conviction should be upheld.
Respectfully submitted, SHAREN WILSON Criminal District Attorney Tarrant County, Texas DEBRA WINDSOR, Assistant Criminal District Attorney Chief, Post-Conviction /s/ Tanya S. Dohoney TANYA S. DOHONEY Assistant Criminal District Attorney Tim Curry Criminal Justice Center 401 W. Belknap
Fort Worth, Texas 76196-0201 (817) 884-1687
FAX (817) 884-1672 State Bar No. 02760900 ccaappellatealerts@tarrantcountytx.gov *24 CERTIFICATE OF COMPLIANCE This document complies with the typeface requirements of T EX . R. A PP . P. 9.4(e) because it has been prepared in a conventional typeface no
smaller than 14-point for text and 12-point for footnotes. This document
also complies with the word-count limitations of T EX . R. A PP . P. 9.4 (i)
because it contains less than 3500 words, excluding any parts exempted
by T R. A PP P. 9.4(i)(1), as computed by Microsoft Word, the computer
software used to prepare the document.
/s/ Tanya S. Dohoney TANYA S. DOHONEY CERTIFICATE OF SERVICE A true copy of the State's petition for discretionary review has been e- served to opposing counsel, the Hon. Abe Factor, lawfactor@yahoo.com,
5719 Airport Freeway, Fort Worth, Texas, 7611, on this, the 15 th day of July
2015.
/s/ Tanya S. Dohoney TANYA S. DOHONEY H:\DOHONEY.D11\PDRS\063015 burcie mcneely pdr and tables.docx
APPENDIX
Troy Scott Burcie v. State ,
2015 WL 2342876 (Tex. App.—El Paso 2015) A
Burcie v. State, Not Reported in S.W.3d (2015)
indicted for felony DWI, having had two prior 2015 WL 2342876 convictions. The indictment arose out of Appellant’s Only the Westlaw citation is currently available. arrest on July 2, 2012. Officer Reyes of the Fort Worth
SEE TX R RAP RULE 47.2 FOR DESIGNATION AND SIGNING OF OPINIONS. Police Department initiated a traffic stop when he observed Appellant driving without headlights at 10:10 p.m. in the evening. [1] Based on Appellant’s slurred speech, bloodshot eyes, and the odor of alcohol, Officer Reyes (DO NOT PUBLISH) performed a field sobriety test. Appellant gave six of six Court of Appeals of Texas, positive clues for intoxication on the horizontal gaze El Paso. nystagmus test; eight of eight clues on the walk and turn test; and three of seven clues on standing on one leg test. Troy Scott Burcie, Appellant, Appellant claimed at the time to have had “one beer with v. dinner.” The State of Texas, Appellee.
No. 08–13–00212–CR | May 14, 2015 This case was transferred from our sister court in Fort Worth pursuant to the Texas Supreme Court’s docket equalization efforts. See Tex. Gov’t Code Ann. § 73.001 (West 2013). We follow the precedents of the Appeal from 371st District Court of Tarrant County, Fort Worth Court to the extent they might conflict with Texas (TC # 1287926D) our own. See Tex.R.App. P. 41.3.
Attorneys and Law Firms
Charles M. Mallin, Tanya S. Dohoney, for The State of The officer placed Appellant under arrest at 10:50 p.m. A Texas. pat down search turned up a prescription pill bottle belonging to Appellant, but which contained a
Abe Factor, Tim Robinson, for Troy Scott Burcie. non-matching medication identified as OxyContin. The officer transported Appellant to the City jail where a
Before McClure, C.J., Rodriguez, and Hughes, JJ. blood sample was requested, but refused by Appellant. A
criminal history check turned up two prior DWIs. Based on the two prior DWIs, and Section 742 of the Transportation Code, the officer took Appellant to a local OPINION hospital where a blood sample was taken without his consent at 12:19 a.m. Officer Reyes’ testimony makes ANN CRAWFORD McCLURE, Chief Justice clear that the Transportation Code was the single basis for obtaining the blood draw:
*1 This DWI case presents an issue which has percolated
through the courts of appeals, and which now has been Q. Okay. And is it your understanding that—or tell
resolved by the Texas Court of Criminal Appeals: can the me why you were going to get a blood specimen
State, consistent with the Fourth Amendment to the U.S. from him.
Constitution, take an involuntary blood sample based only A. Well, at that point he was—he already had two
upon the Texas implied consent statute? prior convictions. He was arrested for DWI. So at TEX.TRANSP.CODE ANN. § 724.012(b)(West 2011). that time we—it’s a mandatory specimen. Even
Following the Texas Court of Criminal Appeals recent though he—he did not want to provide one, we have answer to that question in State v. Villarreal, No. to, by law at the time, get one from him, and that’s
PD–0306–14, 2014 WL 6734178 (Tex.Crim.App. Nov. what we were doing. 26, 2014, pet.granted), we reverse the conviction below.
Q. Okay. And so you were following what you believed to be the law in requiring you to get a blood specimen?
FACTUAL SUMMARY A. Yes, ma’am.
The underlying facts are uncontested. Appellant was
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Burcie v. State, Not Reported in S.W.3d (2015)
Fort Worth has a procedure in place to obtain a warrant time to seek out a magistrate and secure a warrant. Id.
during the late night hours, but Officer Reyes did not Noting these “special facts” the court agreed the
utilize it because of Section 724 of the Transportation involuntary blood draw was appropriate. Id.
Code
The court revisited the involuntary blood draw issue in Appellant filed a motion to suppress the blood sample Missouri v. McNeely where the State of Missouri
claiming that a warrantless blood draw violated the Fourth contended that the singular fact that alcohol dissipates
Amendment, particularly in light of the U.S. Supreme from the body was sufficient by itself to create an exigent
Court’s recent decision in Missouri v. McNeely, 569 U.S. circumstance justifying a warrantless seizure of a
––––, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013). The State defendant’s blood. 133 S.Ct. at 1560. A plurality of the
responded by arguing that the actual holding of McNeely court disagreed. It rejected a per se rule, instead
was narrow and not at issue in this case. It further asserted reaffirming that whether the exigent circumstances
that a number of exceptions to the Fourth Amendment, exception is met must be judged on the totality of
including an implied consent exception under the circumstances on a case by case basis. Id. at 1561. The
Transportation Code, the “special needs” exception, the court also explicitly stated that a warrantless blood draw
“search incident to arrest” exception, the automobile must fall under one of the recognized exceptions to the
exception, and a cumulative “non-dualistic” exception to Fourth Amendment. Id. at 1558.
the Fourth Amendment justified the officer’s actions. The
trial court denied the motion to suppress without findings The Texas courts of appeals grappled with whether
of fact or conclusions of law. Missouri v. McNeely invalidated non-consensual blood
draws taken under the Texas Transportation Code. The *2 Appellant then entered a guilty plea, reserving the Code mandates blood draws when an officer arrests a
ruling on the suppression motion for appeal. He was person for DWI and the person is either involved in an
sentenced to two years in prison and assessed a fine. In a accident involving serious injury or death, or that person
single issue, Appellant contends the trial court abused its has two or more prior convictions for DWI.
discretion in upholding the involuntary blood draw in TEX.TRANSP.CODE ANN. § 724.012(b). [2] The courts of
light of McNeely. The State responds, as it did below, appeals have uniformly rejected the State’s various
contending McNeely is inapplicable, and justifying the arguments attempting to distinguish McNeely or apply
involuntary blood draw on several exceptions to the other exceptions to work around it. See Aviles v. State,
Fourth Amendment: implied consent, search incident to 443 S.W.3d 291 (Tex.App.–San Antonio, 2014, pet.
arrest, and the “cumulative, non-dualistic approach to filed); Sutherland v. State, 436 S.W.3d 28
exceptions and reasonableness.” (Tex.App.–Amarillo 2014, pet. filed); Douds v. State, [434]
S.W.3d 842 (Tex.App.–Houston [14th Dist.] 2014, pet. granted); Weems v. State, 434 S.W.3d 655 (Tex.App.–San Antonio 2014, pet. granted); Holidy v. State, No. ANALYSIS 06–13–00261–CR, (Tex.App.–Texarkana Apr. 30, 2014, pet. granted)(mem. [2014] WL [1722171] Schmerber v. The United States Supreme Court in [3] op., not designated for publication).
California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 Fourth Amendment (1966) held that an involuntary blood draw could pass a search and seizure under the Fourth Amendment. Id. at acknowledged that taking blood from a person constituted Id. at 770–71. First, the court acknowledged after a person stops drinking because the body eliminates that the percentage of alcohol in the blood begins to drop Amendment based on three facts established by the record in that case. under the exigent circumstances exception to the Fourth 767. But the involuntary blood draw was reasonable scrutiny. The court first [2] Germane to this case. Section–724.012(b) provides: of the following circumstances if the officer arrests (b) A peace officer shall require the taking of a specimen of the person’s breath or blood under any to the taking of a specimen voluntarily: and the person refuses the officer’s request to submit the person for an offense under Chapter 49, Penal Code, involving the operation of a motor vehicle ... receives reliable information from a credible source (3) at the time of the arrest, the officer possesses or that the person:
it from the system (thus causing the destruction evidence).
Id. Second, there was already a delay in taking the
accused to the hospital because the officer had to investigate the scene of the accident where the accused Id. was found. Finally, the Court states that there was no We note that the trial court here heard the motion to suppress on May 31, 2013 which was little more than a
© 2015 Thomson Reuters. No claim to original U.S. Government Works. [2]
Burcie v. State, Not Reported in S.W.3d (2015)
general Fourth Amendment month after McNeely was handed down, and the trial balancing test. court did not have the benefit of any of the recent cases construing McNeely and the Transportation Code. Id. at *20.
*3 Any remaining doubt about these issues was resolved State (Tex.Crim.App. Nov. 26, 2014, pet.granted). No. PD–0306–14, 2014 WL 6734178 v. Villarreal, by the Texas Court of Criminal Appeals decision in tests. red, watery eyes, and the strong smell of alcohol. Id. at *1. The driver refused to take the standard field sobriety Id. questioning the driver, found him to have slurred speech, an officer initiated a traffic stop and in Villarreal, at *2. The officer viewed the Transportation Code as mandating the blood draw, and while he “could have” obtained a warrant, he believed that the statute made a warrant unnecessary. situation. Id. We view these facts as the driver to a hospital for a blood draw, despite the driver’s non-consent. several prior DWI convictions, the arresting officer took Id. When a background check showed the driver had indistinguishable from Appellant’s In motion to suppress and here the trial court denied it. conclusions of law, we view the evidence in the light trial court is not asked to make findings of fact and State, almost total deference to the trial court’s determination of the historical facts that the record supports. Guzman v. 955 S.W.2d 85, 89 (Tex.Crim.App.1997). When the Under the applicable standard of review, we do afford the trial court granted the Villarreal this case is that in and The only distinguishing feature between Villarreal its ruling as long as those findings are supported by the the trial court made implicit findings of fact that support deference to a trial courts’ rulings on the application of (Tex.Crim.App.2000). We also afford the same amount of Carmouche v. State, 10 S.W.3d 323, 328 record. most favorable to the trial court’s ruling and assume that the law to the facts—so called mixed questions of law and fact—if resolution of those questions turns on an evaluation of credibility and demeanor. Guzman, [955] S.W.2d at 89. But we review de novo “mixed questions of
The trial court in Villarreal held the blood draw improper. law and fact” not falling within this category. Id. In Id. at *3. The court of appeals affirmed and the Texas Villarreal, for instance, the Court of Criminal Appeals Court of Criminal Appeals squarely confronted the State’s noted that it reviewed the trial court’s ruling de novo implied consent argument under the Transportation Code. because the underlying facts were not disputed. 2014 WL Id. at *6. It also addressed the State’s (B) on two or more 6734178 at *10. occasions, has been previously convicted of or placed on
community supervision for an offense under Section 49.04 [misdemeanor DWI].... alternative arguments that needs exceptions to the Fourth Amendment applied. the automobile, search incident to arrest, and special Id. general Fourth Amendment balancing test could justify *14–15. Lastly the court addressed the State’s claim that a at each of the State’s proffered basis for the blood draw, at *16. The Court rejected Id. concluding: the involuntary blood draw. exceptions raised by the State. Each of the exceptions to In this case, there are also no disputed facts, at least none that would implicate any of the Fourth Amendment [4] Villarreal. Appeals in were expressly rejected by the Texas Court of Criminal the Fourth Amendment that the State urges in this case Only the exigent circumstances Villarreal, exception was not at issue in 2014 WL 6734178 *9. But none of the facts in this record supports the kind of exigent circumstances that the U.S. Supreme Court found sufficient in Schrimer. Appellant was
We hold that the provisions in the detained in a traffic stop and not an accident as in Transportation Code do not, taken Schrimer. He was transported to a hospital less than two by themselves, form a hours later for the blood draw. There was no indication constitutionally valid alternative to that a magistrate judge was not available to issue a the Fourth Amendment warrant warrant had Officer Reyes pursued one. requirement. We thus reject the State’s assertion that a warrantless, nonconsensual conducted pursuant State’s suggestion that such a warrant above, and we further reject the established exceptions provisions can fall under one of the search may be upheld under a requirement described blood to to those draw the Villarreal. of Criminal Appeals in Forth Amendment balancing test” rejected by the Court To the extent it is reasonableness” appears to us to be the same “general non-dualistic One exception urged here, presentation of that argument here cites no cases meant to be something different, the State’s one page establishing it as distinct exception under the Fourth Amendment. All of the other exceptions advanced by approach to the “cumulative, exceptions and © 2015 Thomson Reuters. No claim to original U.S. Government Works. [3]
Burcie v. State, Not Reported in S.W.3d (2015)
us because in this transferred case, we are bound to follow the State are identically worded to those expressly the precedents of the transferring court of appeals. See rejected in Villarreal. TEX.R.APP.P. 41.3. We accordingly sustain Appellant’s single issue and we *4 We also note that following Villarreal, the Fort Worth reverse the trial court’s order denying Appellant’s motion Court of Appeals decided Burks v. State, 454 S.W.3d 705 to suppress and the trial court’s judgment of conviction, (Tex.App.–Fort Worth 2015, pet. filed) which overturned and remand the case to the trial court for further a trial court’s denial of a motion to suppress. The proceedings consistent with this opinion. defendant in that case, as here, was pulled over for a
traffic violation, found to have overt signs of intoxication,
and was taken for an involuntary blood draw because he
had two or more prior convictions for DWI. Id. at 707. All Citations The officer believed the implied consent provisions of the
Transportation Code permitted the blood draw. Id. Based Not Reported in S.W.3d, 2015 WL 2342876 on Villarreal, the Fort Worth Court reversed the trial
court order denying the motion to suppress and the
conviction. Id. at 708. Burks is particularly instructive to End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. [4]
[1] Statutory references cited throughout refer to the current version unless noted.
[2] Additionally, the appellate milieu includes six other submitted McNeely -inspired cases, with yet another case granted and waiting in the wings for submission. Douds v. State , 434 S.W.3d 842 (Tex. App.—Houston [14th Dist.] June 5, 2014, pet. granted) (submitted on arguments Mar. 13, 2015, PD-0857-14); Weems v. State , 434 S.W.3d 655 (Tex. App.—San Antonio 2014, pet. granted) (submitted on arguments Nov. 19, 2014, PD-0635-14); Reeder v. State , 428 S.W.3d 930 (Tex. App.—Texarkana 2014, pet. granted) (submitted on arguments Jan. 14, 2015, PD-0601-14); Smith v. State , No. 13-11-00694-CR, ___ S.W.3d ___, 2014 WL 5901759 (Tex. App.—Corpus Christi 2014, pet. granted) (submitted Apr. 29, 2015, PD-1615-CR); McGruder v. State , No. 10-13- 00109-CR, ___ S.W.3d ___, 2014 WL 3973089 (Tex. App.—Waco 2014, pet. granted) (submitted Apr. 15, 2015, PD-1263-14); Holidy v. State , No. 06-13-00261-CR, 2014 WL 1722171 (Tex. App.—Texarkana Apr. 30, 2014, pet. granted) (mem. op., not designated for publication) (submitted on arguments Jan. 14, 2015, PD-0622-14); see also Cole v. State , 454 S.W.3d 89 (Tex. App.—Texarkana 2014, pet. granted Apr. 22, 2015) (briefing in progress, PD-0077-15).
[3] Although unnecessary for preservation purposes, the State notes that it voiced this exclusionary rule argument below. See Sotelo v. State, 913 S.W.2d 507, 510 (Tex. Crim. App. 1995). The El Paso Court refrained from considering this issue, however. Burcie , 2015 WL 2342876, at *1-4.