Opinion
No. 05-14-00075-CR
03-21-2017
HENRY WILSON RICHARDS, JR., Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 282nd Judicial District Court Dallas County, Texas
Trial Court Cause No. F-1263948-S
MEMORANDUM OPINION
Before Justices Bridges, Fillmore, and Brown
Opinion by Justice Bridges
Henry Wilson Richards appeals his driving while intoxicated (DWI) conviction. After the trial court overruled his motion to suppress evidence, appellant pleaded guilty to DWI, and the trial court sentenced him to ten years' confinement, probated for five years, and a $2000 fine.
On original submission, this Court reversed the trial court's judgment and remanded for further proceedings, concluding appellant did not consent to the warrantless, nonconsensual blood draw in this case, the taking of his blood did not fall under an exception to the warrant requirement, the blood draw violated appellant's Fourth Amendment rights, and the trial court therefore abused its discretion in denying appellant's motion to suppress.
The Texas Court of Criminal Appeals vacated this Court's judgment and remanded this case to address whether appellant preserved his claim that the warrantless blood draw, taken pursuant to section 724.012(b)(3)(B) of the Texas Transportation Code, violated his Fourth Amendment rights. In its opinion, the court of criminal appeals noted the State's argument that appellant only preserved a challenge to the facial constitutionality of section 724.012 and failed to preserve an as-applied challenge to the constitutionality of the statute under the Fourth Amendment.
On December 30, 2012, Officer Shannon Smith observed appellant driving faster than the speed limit and almost colliding with another vehicle. Smith stopped appellant, who "opened up his door immediately." Smith observed appellants' eyes were red and his breath smelled of alcohol. After performing field sobriety tests, Smith arrested appellant for DWI. Appellant refused to give a blood sample. Smith took appellant to Lew Sterrett Justice Center where Smith discovered records indicating appellant had been convicted of DWI twice before. Although Smith could have "easily" obtained a warrant, she did not do so. After approximately two hours, blood was drawn from appellant without his consent pursuant to section 724.012 of the Texas Transportation Code.
Before trial, appellant filed a motion to suppress, alleging the warrantless, nonconsensual blood draw was a violation of his Fourth Amendment rights. Following a hearing, the trial court denied appellant's motion. The trial court entered findings of fact that, among other things, appellant refused to give a blood sample, blood evidence was nevertheless seized without a warrant, and the blood evidence was seized under Texas Transportation Code section 724.012. While this appeal was pending, the Court of Criminal Appeals issued its opinion in State v. Villarreal, 475 S.W.3d 784 (Tex. Crim. App. 2014), addressing involuntary blood draws taken under the authority of the Texas Transportation Code.
To preserve a complaint for appellate review, Texas Rule of Appellate Procedure 33.1 requires that: (1) the complaining party made a timely and specific request, objection, or motion; and (2) the trial court either ruled on the request, objection, or motion or refused to rule and the complaining party objected to that refusal. TEX. R. APP. P. 33.1(a); Geuder v. State, 115 S.W.3d 11, 13 (Tex. Crim. App. 2003). If a party fails to properly object to errors at trial, even constitutional errors can be forfeited. Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012). We should not address the merits of forfeited errors on appeal. Wilson v. State, 311 S.W.3d 452, 473-74 (Tex. Crim. App. 2010) (quoting Ford v. State, 305 S.W.3d 530, 532-33 (Tex. Crim. App. 2009)). However, in determining whether an appellant has preserved a facial and as-applied challenge to the constitutionality of a statute, "rather than focus on the presence of magic language, a court should examine the record to determine whether the trial court understood the basis of a defendant's request." State v. Rosseau, 396 S.W.3d 550, 555 (Tex. Crim. App. 2013) (concluding that, while motion to quash could have been "more clearly presented," it adequately presented both facial and "as applied" challenges to the constitutionality of statute).
In this case, appellant filed a motion to suppress that stated he declined to provide a specimen of breath or blood, but Smith had appellant's blood drawn pursuant to section 724.012 of the transportation code. The motion asserted no exigent or emergency situation existed, but Smith did not make any attempt to obtain a search warrant for appellant's blood. The motion argued the United States Supreme Court, in Missouri v. McNeely, ___ U.S. ___, 133 S.Ct. 1552 (2013), had "in essence ruled that §724.012 of the Texas Transportation Code is unconstitutional based on the Fourth Amendment of the U.S. Constitution." Thus, the motion argued, the blood evidence obtained in violation of the United States Constitution must be suppressed.
At the hearing on appellant's motion to suppress, appellant's counsel argued section 724.021 was unconstitutional under both the Texas Constitution and the United States Constitution. The trial court noted there were "other cases" from the court of criminal appeals that concluded section 724.012 was constitutional, although those cases "that said that in the past [were] not in relation to McNeely." The trial court denied appellant's motion to suppress, stating it "had to go with what the Texas Court of Criminal Appeals says today." Appellant's counsel argued that, under the Fourth Amendment, a bodily intrusion required a warrant with probable cause. The trial court stated appellant's "error is preserved from now and ever more" but further stated his finding "that the specimen was taken in accordance with 724.012," and it was bound by the decision of the court of criminal appeals upholding section 724.012. Following the denial of appellant's motion to suppress, appellant entered a negotiated plea of guilty.
We conclude appellant's specific objection and argument that section 724.012 was unconstitutional under the Fourth Amendment was sufficient to preserve this issue for our review. See Perez v. State, 464 S.W.3d 34, 42-43 (Tex. App.—Houston [1st Dist.] 2015, pet. ref'd) (general motion to suppress alleging blood draw not pursuant to search warrant or exigent circumstances sufficient to preserve complaint that warrantless taking of blood sample violated Fourth Amendment). The record is clear that the trial court understood appellant's argument that section 724.012 was unconstitutional under the Fourth Amendment and, as applied to him, the unconstitutionality of section 724.012 required that the blood evidence in this case be suppressed. See Rosseau, 396 S.W.3d at 555. We have previously concluded the warrantless, nonconsensual blood draw violated appellant's Fourth Amendment rights. Richards v. State, No. 05-14-00075-CR, 2015 WL 2400757, at *2 (Tex. App.—Dallas May 20, 2015)(mem. op., not designated for publication); see McNeely, 133 S.Ct. at 1561-63; Villarreal, 475 S.W.3d at 815. Further, because the error in this case resulted in his guilty plea, we conclude the error was harmful. See Perez, 464 S.W.3d at 48.
We reverse the trial court's judgment and remand for new trial consistent with this opinion.
/David L. Bridges/
DAVID L. BRIDGES
JUSTICE Do Not Publish
TEX. R. APP. P. 47.2(b) 140075F.U05
JUDGMENT
On Appeal from the 282nd Judicial District Court, Dallas County, Texas
Trial Court Cause No. F-1263948-S.
Opinion delivered by Justice Bridges. Justices Fillmore and Brown participating.
Based on the Court's opinion of this date, the judgment of the trial court is REVERSED and the cause REMANDED for further proceedings consistent with this opinion. Judgment entered March 21, 2017.