## COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02

- 14

- 00077

- CR

NO. 02

- 14

- 00078

- CR

WALTER TENDAI CHIDYA USIKU APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM CRIMINAL DISTRI CT COURT NO. 4 OF TA RRANT COUNTY

TRIAL COURT NO S . 1 264242R, 1264243R

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### OPINION

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After the denial of his motions to suppress, Appellant Walter Tendai

Chidyausiku pled guilty to intoxication assault and intoxication manslaughter,

charged in separate indictments, reserving his right to appe al the denial of his

motions to suppress. He ple d “not true” to the deadly

- weapon a llegation in each

case

. A jury convicted him as instructed to do by the trial court , found the

deadly

- weapon allegation in each case true, and assessed his punishment at2 t hree years’ confinement for his conviction of intoxication assault and ten years’

confinement for his conviction of intoxication manslaughter. The trial court

sentenced him accordingly, with the sentences to run concurrently. 1

In two points, Appellant cha llenges the trial court ’ s denial of his motion s to

suppress the evidence obtained from the warrantless

, mandatory

, and

involuntary blood draw. Because the trial court reversibly erred by denying his

motion to suppress in each case, 2 we reverse the trial c ourt ’ s judgment s and

remand both cause s to the trial court for a new trial or other proceedings

consistent with this opinion

.

Brief Facts

Appellant was involved in a car wreck at a four

- way stop i ntersection in

Arlington, Texas. Appellant ’ s automobile app roached the intersection at a fast

speed and then failed to stop

, striking the vehicle operated by Tina R. As a result

of the collision

, Tina suffered severe bodily injuries causing her to be hospitalized

for six weeks. Additionally, the wreck resulted i n the death of Tina’s ten

- year

- old

son

.

The City of Arlington Fire Department and the DWI unit of the City of

Arlington Police Department responded to the wreck

. Officer Brian Martin spoke

1 See Tex. Code Crim. Proc. art. 42.0 8(a) (West Supp. 2014 ).

2 See State v. Villar r

eal

, N o . PD

- 0306

- 14, 2014 WL 6734178, at *20 (Tex.

Crim. App. Nov. 26, 2014) (holding that implied consent statutes, “ taken by

themselves, [do not] form a constitutionally valid alternative to the Fourth

Amendme nt warrant requirement ”).3 with Appellant when he arrived on the scene and noticed that Appel lant had been

crying and was a bit emotional. Appellant admitted to having had two alcoholic

drinks at a bar after work before the collision occurred. Appellant also told Officer

Martin that he had been trying to rinse his mouth with mouthwash just befor e the

collision to mask the smell of cigarette smoke, and may have even swallowed

some mouthwash

, because he was on his way to meet his son.

Officer Martin directed Appellant to perform field sobriety tests because

Appellant showed signs of impairment such as poor balance, bloodshot and

glassy eyes, and the smell of alcohol from his mouth. When asked about the

specific results of the test s

, Officer Martin testified that Appellant had scored six

of six points on the horizontal

- gaze

- nystagmus test and four o f eight on the walk

and

- turn test, failing both, but that he had passed the final test by scoring zero on

the one

- leg stand.

A s a result of t hose tests, Officer Martin placed Appellant under arrest for

driving while intoxicated. Appellant was then transpo rted to the Medical Center of

Arlington (MCA), where he was asked to give a blood sample. He refused, so

b lood

- draw technician Adam Tomlinson performed the blood draw without

Appellant ’ s consent while Officer Martin was present. Tomlinson worked for the

MCA “ as a side gig part time while [also] working on the ambulance [at Arlington

EMS]. ” As an Emergency Department Tech II at MCA, some of Tomlinson ’ s

primary duties included “ [ s ] tarting IVs, drawing blood, [inserting and removing]

Foley catheters[,]

. . . transporting patients[,] and assisting the nurses and doctors4 in other procedures. ” After the sample was collected, Officer Martin transported

the blood vials to the main police station and locked them in the evidence room

,

where they remained refrigera ted. Analyst Joyce Ho tested Appellant ’ s blood.

In both cases, Appellant filed a motion to suppress the blood evidence on

the ground that it was seized without a warrant and without consent, under the

auspices of transportation code section 724.012, autho rizing mandatory blood

draws, and triggering section 724.017, which lists those authorized to draw blood

under the implied consent statutes. 3 Appellant argued in his motions to suppress

that under section 724.017

, a qualified technician must draw the bloo d, that the

statute excludes emergency medical services personnel from the definition of

“ qualified technician, ” and that because Tomlinson holds an EMT paramedic

license, he is included in emergency medical services personnel. Appellant also

contended th at the mandatory blood draw was a search, and he moved to

suppress the blood evidence on the ground that the F ourth Amendment “ does

not permit nonconsensual blood draws in every instance, ” citing Missouri v.

McNeely in his brief supporting his motion in ea ch case

. 4 The trial court denied

the motions in both cases.

3 Tex. Transp

. Code Ann. § 724.012 (West 2011)

, § .017 (West Supp.

2014).

4 133 S. Ct. 1552, 1557 (2013).5 At trial, subject to Appellant ’ s objections to the blood evidence, he and the

State stipulated to the result of Ho ’ s analysis showing that he had a blood

- alcohol

concentration of 0.12

. Dr. Rober t Johnson, Chief Toxicologist for the Tarrant

County Medical Examiner ’ s Office, testified concerning Appellant ’ s 0.12 blood

a lcohol concentration.

Motion to Suppress

We review a trial court ’ s ruling on a motion to suppress evidence under a

bifurcated stan dard of review. 5 We give almost total deference to a trial court ’ s

rulings on questions of historical fact and application

- of

- law

- to

- fact questions that

turn on an evaluation of credibility and demeanor, but we review de novo

application

- of

- law

- to

- fact qu estions that do not turn on credibility and demeanor. 6

It is well established that

[t] he Fourth Amendment ( of the United States Constitution )

proscribes all unreasonable searches and seizures, and i t is a

cardinal principle that searches conducted outside the judicial

process, without prior approval by judge or magistrate, are per se

unreasonable under the Fourth Amendment

— subject only to a few

specifically established a nd well

- delineated exceptions. 7

The Texas Court of Criminal Appeals instructs us that

5 Amador v. State

, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007); Guzman

v. State

, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).

6 Amad or , 221 S.W.3d at 673; Estrada v. State

, 154 S.W.3d 604, 607 (Tex.

Crim. App. 2005); Johnson v. State , 68 S.W.3d 644, 652

– 53 (Tex. Crim. App.

2002).

7 Gonzales v. State

, 369 S.W.3d 851, 854 (Tex. Crim. App. 2012) (internal

quotation marks and citation omitt ed)

.6 a nonconsensual search of a DWI suspect ’s blood conducted

pursuant to the mandatory

- blood

- draw and implied

- consent

provisions in the Transportation Code, when undertaken in the

absence of a warrant or any applicable exception to the warrant

requirement, viol ates the Fourth Amendment. 8

The Supreme Court of the United States has held

,

Our cases have held that a warrantless search of the person is

reasonable only if it falls within a recognized exception. That

principle applies to the type of search at issue in this case, which

involved a compelled physical intrusion beneath McNeely ’s skin and

into his veins to obtain a sample of his blood for use as evidence in

a criminal investigation. Such an invasion of bodily integrity

implicates an individual ’s most perso nal and deep

- rooted

expectations of privacy. 9

To be constitutionally permissible, a warrantless search must fall within

one of the well

- accepted exceptions to the warrant requirement. 10 We have

found no exception to the warrant requirement that would just ify the search in the

case s now before this court. The only possible exigency suggested by the

record s is the natural dissipation of alcohol in Appellant ’ s body. But, as the

McNeely court held, the natural dissipation of alcohol in the bloodstream does

n ot constitute an exigency in every case sufficient to justify conducting a blood

test without a warrant. 11 Examining the totality of the circumstances here , we

8 Villarreal

, 2014 WL 6734178, at *21.

9 McNeel y

, 133 S. Ct. at 1558 (citations and internal quotation marks

omitted)

.

10 Id. at 1558

– 59 ; Villarreal

, 2014 WL 6734178, at *9.

11 McNeely

, 133 S. Ct. at 1568.7 see no basis to justify Appellant’s blood draw on the ground of exigency. 12 The

record s show tha t t he Arlington Police Department and the Arlington judiciary

, in

a commendable commitment to assuring F ourth A mendment protections, have

established a protocol and procedure to obtain search warrants efficiently and

without undue delay

. In 2011 alone, 28 8 search warrants were procured

. The

record s reflect that this procedure

, described by Officer Martin, S ergeant Steve

Ch ow

, also of the City o f Arlington Police Department, and Judge Stewart Milner

,

the chief municipal judge of the City of Arlington

, was efficient and available

twenty

- four hours a day, seven days a week, holidays included. The record s do

not reflect any other ex ception to justify the search. 13 We further point out that

this court has already rejected the State’s argument that the evidence should not

be excluded under article 38.23. 14 We therefore hold that the trial court erred by

denying Appellant ’ s motion to suppress the blood test results in each case

. 15

12 See id.

13 See Villarreal

, 2014 WL 6734178 at *10 (r ejecting implied consent,

exceptions to the warrant requirement

— the automobile exception, the special

needs exception, and the search

- incident

- to

- arrest

- exception

, as well as the

treatment of the blood draw as a seizure, not a search and employing a

balanc ing test as justifications for mandatory blood draw ).

14 See Burks v. State , No. 02

- 13

- 00560

- CR, 2015 WL 115964, at *3 (Tex.

App.

— Fort Worth Jan. 8, 2015, no pet. h.) (noting that “there is no exception to

our statutory exclusionary rule for an officer’s goo d faith reliance on a statute”).

15 See id. at *1, *3 (reversing trial court’s order denying motion to suppress

in DWI

- felony repetition blood

- draw case).8 Harm

Because the denial of Appellant ’s motion s to suppress and the admission

of the fruit s of the unlawful search of Appellant by means of a warrantless, non

consensual blood draw violated his Fourth Amendment constitutional rights, we

perform the harm analysis mandated by r ule 44.2(a) of the Rules of Appella te

Procedure :

If the appellat e record in a criminal case reveals constitutional error

that is subject to harmless error review, the court of appeals must

reverse a judgment of conviction or punishment unless the court

determines beyond a reasonable doubt that the error did not

contrib ute to the conviction or punishment. 16

In each case, i f the denial of the motion to suppress contributed in some

measure to the State ’ s leverage in the plea

- bargaining process and may have

contributed to Appellant ’ s decision to relinquish his constitutional rights of trial

and confrontation , we cannot conclude beyond a reasonable doubt that the error

did not contribute to the conviction or punishment. 17 As a result, the error cannot

be found harmless. We cannot say that the denial of Appellant ’ s motion to

s uppress the results of the blood test did not contribute to his decision to enter a

guilty plea in each case

. Consequently, we cannot say that the erroneous denial

16 Tex. R. App. P. 44.2(a)

.

17 See McKenna v. State , 780 S.W.2d 797, 799

– 800 (Tex. Crim. App.

1989); Castle berry v. State

, 100 S.W.3d 400, 404 (Tex. App.

— San Antonio 2002

, no pet. ) ; Woodberry v. State , 856 S.W.2d 453, 458

– 59 (Tex. App.

— Amarillo

1993, no pet.).9 of his motion to suppress did not contribute to his conviction in each case

. 18

Because the trial court reversibly erred by denying Appellant’s motion to

suppress in each case, we are compelled to sustain his first point in each case

.

We therefore do not reach his remaining point in each case , which challenges

the blood draw under section 724.01 7

. 19

Conclusion

Having held that the trial court reversibly erred by denying Appellant’s

motions to suppress, we reverse the trial court’s judgments and remand both

cause s to the trial court for a new trial or other proceedings consistent with this

opinion.

/s/ Lee Ann Dauphinot

LEE ANN DAUP HINOT

JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GABRIEL, JJ.

GABRIEL, J., filed a concurring opinion in which LIVINGSTON, C.J., joins.

PUBLISH

DELIVERED: February 19, 2015

18 See Burks , 2015 WL 115964, at *3 (impl icitly holding error harmful by

reversing trial court’s judgmen t and order denying motion to suppress in DWI

felony repetition blood draw case).

19 See Tex. R. App. P. 47.1.