Reversed and Remanded Memorandum Opinion filed February 10, 2015.

In The

Fourteenth Court of Appeals

NO. 14-13-00642-CR

THOMAS ANDREWS EVANS II, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Court at Law No. 2

Fort Bend County, Texas

Trial Court Cause No. 12-CCR-159784

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

Appellant Thomas Andrews Evans II was charged with driving while 

intoxicated. After the trial court denied his motion to suppress, Evans pleaded no 

contest to the charge. Evans appeals his conviction and alleges that the trial court 

erred in denying his motion to suppress the evidence obtained from a warrantless 

nonconsensual blood draw because his blood was drawn in violation of the Fourth 

Amendment. We reverse and remand. 
2

BACKGROUND

On March 26, 2011, Department of Public Safety Trooper Eric Robinson 

was dispatched to Highway 99 northbound at Cinco Ranch in Fort Bend County, 

Texas. Trooper Robinson arrived at the scene of the accident at approximately 2:30 

a.m. Evans, two Fort Bend County deputies, and the wrecker drivers were already 

present at the scene. Trooper Robinson spoke with Deputy Aquino, who informed 

him that Evans had been driving a Toyota Tundra and struck a Chevrolet Traverse 

with two people inside. The collision caused the Chevrolet Traverse to strike the 

median in the road and flip over several times. The two occupants of the Chevrolet 

Traverse were transported to Memorial Hermann Hospital in Katy to be treated for 

bodily injuries and were not present at the scene when Trooper Robinson arrived. 

The damage to the vehicles was extensive and neither vehicle was capable of being 

driven from the scene of the accident. Another DPS trooper arrived later to assist in 

monitoring traffic. 

When Trooper Robinson arrived, Evans was sitting in the back of a patrol 

car. Trooper Robinson began asking Evans questions to investigate the cause of the 

accident. In response to Trooper Robinson’s questioning, Evans stated that he had 

been coming from a friend’s bar and admitted to drinking two to three beers. 

Trooper Robinson observed that Evans smelled of alcohol, had slurred speech, and 

had red and glassy eyes. Trooper Robinson administered one field sobriety test and 

determined that Evans was under the influence of alcohol. Evans refused to 

participate in the other field sobriety tests. Trooper Robinson arrested Evans and 

transported him to Memorial Hermann Hospital. 

At the hospital, Trooper Robinson played Evans an audio recording of the 
3

statutory DWI warning contained in the DIC−24 form1and requested that he 

provide a voluntary specimen to test for intoxication. Pursuant to the mandatory 

blood draw provision, Trooper Robinson was required to obtain a specimen of 

Evans’s blood. See Tex. Transp. Code § 724.012(b)(1)(C). Evans refused consent 

to the blood draw and a nurse drew Evans’s blood at 4:40 a.m. Trooper Robinson 

did not obtain a warrant for the blood draw. 

Evans was charged with operating a motor vehicle in a public place while 

intoxicated. See Tex. Penal Code § 49.04(a). Evans filed a motion to suppress the 

evidence obtained from the blood draw. After conducting a hearing, the trial court 

entered an order denying the motion on June 26, 2013. 

Trooper Robinson was the only witness to testify at the suppression hearing. 

Trooper Robinson testified that he did not attempt to obtain a search warrant and 

had never previously gotten a search warrant for a blood draw. Although he 

testified that he did not know whether a magistrate was on call at the time,

2

he 

estimated that it would have only taken one hour to get a warrant. Trooper 

Robinson admitted that “had [he] made the decision to prepare a probable cause 

affidavit and fax it to a judge who was on call, that [he] had sufficient time to do 

that in this investigation.” When asked why he did not attempt to get a warrant, 

Trooper Robinson testified that he was relying on the mandatory blood draw 

provision, which authorizes a nonconsensual blood draw when there is an accident 

and someone other than the arrestee is taken to the hospital for injuries. See Tex. 

Transp. Code § 724.012(b)(1)(C). On April 30, 2014, the trial court issued findings 

 

1

The DIC−24 form is a standard form commonly used by the DPS to request breath or 

blood specimens from suspected intoxicated drivers. See Martin v. Dep’t of Pub. Safety, 964 

S.W.2d 772, 773 (Tex. App.—Austin 1998, no pet.). The form sets forth the required warnings 

from Section 724.015 of the Texas Transportation Code. See Tex. Transp. Code § 724.015. 

2

In his findings of fact, the trial judge stated that “[t]he Court’s personal recollection is 

that Fort Bend County does not have a 24-hour magistrate on call to sign blood search warrants.” 
4

of fact and conclusions of law, reaffirming its denial of the motion to suppress. 

STANDARD OF REVIEW

We review a trial court’s denial of a motion to suppress under a bifurcated 

standard. Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2013). We 

review the trial court’s factual findings for an abuse of discretion. Id. At the 

suppression hearing, the trial court is the sole finder of fact and is free to believe or 

disbelieve any or all of the testimony presented. Wiede v. State, 214 S.W.3d 17, 

24−25 (Tex. Crim. App. 2007). We give almost total deference to the trial court’s 

determination of historical facts, particularly when the trial court’s factual findings 

are based on an evaluation of credibility and demeanor. Crain v. State, 315 S.W.3d 

43, 48 (Tex. Crim. App. 2010). 

Additionally, we review de novo the trial court’s application of the law of 

search and seizure to the trial court’s express or implied determination of historical 

facts. Shepherd v. State, 273 S.W.3d 681, 684 (Tex. Crim. App. 2008). We review 

de novo the trial court’s application of the law to those facts. Ford v. State, 158 

S.W.3d 488, 493 (Tex. Crim. App. 2005). We must view the evidence in the light 

most favorable to the trial court’s ruling. State v. Castleberry, 332 S.W.3d 460, 465 

(Tex. Crim. App. 2011). The trial court’s ruling will be sustained if it is reasonably 

supported by the record and correct on any theory of law applicable to the case. 

Laney v. State, 117 S.W.3d 854, 857 (Tex. Crim. App. 2003). 

ANALYSIS OF APPELLANT’S ISSUE

In eight issues on appeal, Evans contends that the trial court erred in denying 

his motion to suppress. We limit our discussion to whether the warrantless 

nonconsensual blood draw violated Evans’s rights under the Fourth Amendment 
5

because we find this issue dispositive.3Evans alleges that the blood draw violated 

the Fourth Amendment because it does not meet any exception to the Fourth 

Amendment warrant requirement. We agree. 

I. The Fourth Amendment 

The Fourth Amendment to the United States Constitution provides: 

The right of the people to be secure in their persons, houses, papers, 

and effects, against unreasonable searches and seizures, shall not be 

violated, and no Warrants shall issue, but upon probable cause, 

supported by Oath or affirmation, and particularly describing the place 

to be searched, and the persons or things to be seized.

U.S. Const. amend. IV. “Although the text of the Fourth Amendment does not 

specify when a search warrant must be obtained, [the Supreme Court of the United 

States] has inferred that a warrant must generally be secured.” Kentucky v. King, 

131 S. Ct. 1849, 1856 (2011). “In the absence of a warrant, a search is reasonable 

only if it falls within a specific exception to the warrant requirement.” Riley v. 

California, 134 S. Ct. 2473, 2482 (2014). “The exceptions to the rule that a search 

must rest upon a search warrant have been jealously and carefully drawn . . . .” 

Jones v. United States, 357 U.S. 493, 499 (1958). These exceptions include 

voluntary consent to search, search under exigent circumstances, and search 

incident to arrest. McGee v. State, 105 S.W.3d 609, 615 (Tex. Crim. App. 2003).

 

3 Although Evans also contends that the mandatory blood draw provision is

unconstitutional, we need not decide this issue because it is not absolutely necessary to deciding 

this case. See Douds v. State, 434 S.W.3d 842, 860 (Tex. App.—Houston [14th Dist.] 2014, pet. 

granted) (en banc, op. on reh’g.) (declining to decide the constitutionality of the mandatory blood 

draw provision because the statute did not play a role in the court’s Fourth Amendment 

analysis); see also Leal v. State, --- S.W.3d ---, No. 14-13-00208-CR, 2014 WL 5898299, at *4

n.3 (Tex. App.—Houston [14th Dist.] Nov. 13, 2014, no pet.) (quoting State ex rel. Lykos v. 

Fine, 330 S.W.3d 904, 909 (Tex. Crim. App. 2011)) (“The constitutionality of a statute is not to 

be determined in any case unless such a determination is absolutely necessary to decide the case

in which the issue is raised.”). 
6

When a defendant alleges that a search or seizure violates the Fourth 

Amendment, he must produce some evidence that rebuts the presumption of proper 

police conduct. Amador v. State, 275 S.W.3d 872, 878 (Tex. Crim. App. 2009). To 

satisfy this burden, the defendant must establish that the search or seizure occurred 

without a warrant. Id. Here, it is undisputed that the State obtained Evans’s blood 

without securing a warrant. Thus, the burden shifts to the State to prove that the 

warrantless seizure was reasonable. Id. A warrantless search or seizure is 

reasonable only if it falls within a specific exception to the Fourth Amendment 

warrant requirement. Riley, 134 S. Ct. at 2482.

II. Warrantless Blood Draw 

Evans contends that the trial court erred in denying his motion to suppress 

because the State cannot show that an exception to the Fourth Amendment warrant 

requirement applies. In response, the State argues that the warrantless seizure was 

reasonable because (1) Evans impliedly consented to the blood draw, and in the 

alternative, (2) exigent circumstances justified the warrantless seizure.

4

A. Implied Consent 

The State asserts that the blood draw was reasonable because Evans

impliedly consented to having his blood drawn. More specifically, the State asks 

“that this Court consider the issue of whether the implied consent contained in the 

Texas Transportation Code authorizes a warrantless blood draw deriving from that 

implied consent.” The State relies on Section 724.011(a) of the Texas 

 

4

The State also argues that the evidence should not be suppressed because the good faith 

exception to the federal exclusionary rule applies. Because this argument contradicts our 

decision in Douds, the State asks “this Court not to apply that holding here, or to reexamine that 

holding in light of the posture in which it places law enforcement and the lack of effect it would 

have in deterring police misconduct.” We decline to revisit our holding in Douds and hold that 

the good faith exception to the federal exclusionary rule does not apply. See Douds, 434 S.W.3d 

at 861−62. 
7

Transportation Code, which states, in relevant part:

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 . . . the person is deemed to have consented . . . to submit 

to the taking of one or more specimens of the person’s breath or blood 

for analysis to determine the alcohol concentration or the presence in 

the person’s body of a controlled substance, drug, dangerous drug, or 

other substance. 

The State asserts that this provision establishes that the seizure was reasonable 

because it provides that Evans impliedly consented to having his blood drawn. 

Here, however, Evans expressly refused consent to having his blood drawn. The 

implied consent statute does not authorize a blood draw, without his consent, 

unless the mandatory blood draw provisions of Section 724.012(b) are implicated. 

See Cole v. State, --- S.W.3d ---, No. 06-13-00179-CR, 2014 WL 7183859, at *4 

(Tex. App.—Texarkana Dec. 18, 2014, no pet.); see also Tex. Transp. Code § 

724.013 (“Except as provided by Section 724.012(b), a specimen may not be taken 

if a person refuses to submit to the taking of a specimen designated by a peace 

officer.”).

The mandatory blood draw provision provides that, in the absence of 

consent, an officer is required to obtain a sample of breath or blood when an 

individual other than the arrestee has suffered bodily injury and has been 

transported to a hospital or other medical facility for medical treatment. See Tex. 

Transp. Code 724.012(b)(1)(C). The State, in essence, is arguing that the 

mandatory blood draw provision should constitute a per se exception to the Fourth 

Amendment warrant requirement. 

The Court of Criminal Appeals recently rejected this argument in State v. 

Villarreal. See --- S.W.3d ---, No. PD-0306-14, 2014 WL 6734178, at *11 (Tex. 

Crim. App. Nov. 26, 2014). Similarly, the State in Villarreal argued that the 
8

implied consent and mandatory blood draw provisions should be upheld as 

categorically reasonable under the consent exception to the warrant requirement.

Id. at *10. The Court of Criminal Appeals held that the mandatory blood draw 

provisions, by themselves, do not form a per se exception to the Fourth 

Amendment warrant requirement. See id. at *14. Under Villarreal, an officer is 

required to obtain a search warrant to draw a defendant’s blood, unless he can 

show that an exception to the warrant requirement applies. Id. at *8. Villarreal 

establishes that consent provided by the implied consent and mandatory blood 

draw provisions cannot be the exception when that consent is expressly refused. Id. 

at *11 (“It would be wholly inconsistent with these principles [of the Fourth 

Amendment] to uphold the warrantless search of a suspect’s blood on the basis of 

consent when a suspect has, as in the present case, expressly and unequivocally 

refused to submit to the search.”). Implied consent that has been revoked by a 

defendant cannot serve as a substitute for the free and voluntary consent required 

by the Fourth Amendment. Id. Instead, reasonableness must be judged under a 

totality of the circumstances approach. Id. at *8 (“Given this totality-of-thecircumstances approach, for the most part, ‘per se rules are inappropriate in the 

Fourth Amendment context.’”). 

In light of the Court of Criminal Appeals’ holding in Villarreal, we reject 

the State’s argument that the implied consent and mandatory blood draw 

provisions constitute an exception to the warrant requirement. Because Evans 

refused consent to the blood draw, the State cannot prove that the consent 

exception to the warrant requirement applies.5

 

5

The State also argues that the warrantless seizure did not violate the Fourth Amendment 

because Trooper Robinson’s misinterpretation of the mandatory blood draw provision was a 

reasonable mistake of law. The State relies on Heien v. North Carolina, in which an officer 

pulled a vehicle over because one brake light was out and he believed the statute at issue 
9

B. Exigent Circumstances

Evans further asserts that the blood draw violated the Fourth Amendment 

because there were no exigent circumstances to justify the warrantless seizure. We 

agree. 

Courts recognize that a warrantless search and seizure can be reasonable 

“[w]here there are exigent circumstances in which police action literally must be 

‘now or never’ to preserve the evidence of the crime.” Douds, 434 S.W.3d at 850

(quoting Roaden v. Kentucky, 413 U.S. 496, 505 (1973)). Exigent circumstances 

generally fall within one or more of three categories: (1) providing aid or 

assistance to persons whom law enforcement reasonably believes are in need of 

assistance; (2) protecting police officers from persons whom they reasonably 

believe to be present, armed, and dangerous; and (3) preventing the destruction of 

evidence or contraband. Gutierrez v. State, 221 S.W.3d 680, 685 (Tex. Crim. App. 

2007).

Under Missouri v. McNeely, to determine whether an officer faced an 

emergency or whether exigent circumstances existed to justify a warrantless 

seizure in a DWI investigation, we must consider the totality of the circumstances 

and analyze the facts on a case-by-case basis. --- U.S. ---, 133 S. Ct. 1552, 

1558−59 (2013). McNeely requires an officer to identify factors that suggest he

faced an emergency or unusual delay in obtaining a warrant. See id. at 1567. The 

court further explained that “[i]n those drunk-driving investigations where police 

 

required two working brake lights. 135 S. Ct. 530, 534 (2014). During the search, the officer 

found cocaine in the vehicle. Id. The trial court later held that the statute only required one 

working brake light. Id. The Supreme Court held that the search was reasonable because 

reasonable suspicion required for a traffic stop can rest on a reasonable mistake of law. Id. at 

536. We reject the State’s argument because Trooper Robinson did not misinterpret the 

mandatory blood draw provision. Instead, Trooper Robinson drew Evans’s blood in accordance 

with the exact language of the mandatory blood draw provision. Because Trooper Robinson did 

not misinterpret the statute, there can be no mistake of law defense. 
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officers can reasonably obtain a warrant before a blood sample can be drawn 

without significantly undermining the efficacy of the search, the Fourth 

Amendment mandates that they do so.” Id. at 1561 (emphasis added). 

We apply an objective standard of reasonableness to determine whether a 

warrantless search was justified, and we take into account the facts and 

circumstances known to the police at the time of the warrantless search. Colburn v. 

State, 966 S.W.2d 511, 519 (Tex. Crim. App. 1998); see also Douds, 434 S.W.3d 

at 854 (“The relevant inquiry is whether, given the facts and circumstances known 

to police at the time, it would be objectively reasonable for an officer to conclude 

that taking the time necessary to obtain a warrant before drawing a blood sample 

would significantly undermine the efficacy of a blood alcohol test.”). 

The State contends that exigent circumstances existed because obtaining a 

warrant would have significantly delayed the blood draw process. In support of its 

contention, the State provides the following factors: (1) the nature of the accident; 

(2) the time it took to draw Evans’s blood without a warrant; and (3) the trial 

judge’s personal knowledge that there is not a magistrate is on call twenty-four 

hours in Fort Bend County. 

In Douds, this court held that evidence of an accident investigation, by itself, 

does not demonstrate exigent circumstances. Id. In that case, two vehicles were 

involved in an accident and one passenger was transported to the hospital. Id. at 

845. The driver was suspected of being under the influence of alcohol and his 

blood was drawn approximately two hours after the officer arrived at the scene. Id. 

at 845−46. The court held that the State did not prove exigent circumstances 

existed to justify the warrantless blood draw because an accident investigation 

combined with the rapid dissipation of blood alcohol, without more, did not 

demonstrate that the officer faced any emergency or undue delay in obtaining a 
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warrant. Id. at 854−55. We hold that the facts of Douds are analogous to the 

present case and conclude that the State cannot show obtaining a warrant was 

impractical. 

The record does not reflect any facts to support the State’s argument that 

obtaining a warrant would have significantly delayed the blood draw process. See 

id. at 855 (holding that the state could not show it was impractical for the police to 

obtain a warrant in the two-hour time span between when the officer arrived to the 

scene and when the defendant’s blood was drawn). To the contrary, Trooper 

Robinson testified at the suppression hearing that he believed there was sufficient 

time to obtain a warrant if he attempted to do so. The only reason that Trooper 

Robinson did not attempt to obtain a warrant is because he was relying on the 

mandatory blood draw provision of Section 724.012. See Tex. Transp. Code § 

724.012(b)(1)(C).

When Trooper Robinson arrived at the scene, the two occupants of the other 

vehicle had already been transported to the hospital. There were also two Fort 

Bend County deputies and one DPS trooper at the scene assisting in the 

investigation who could have helped secure a warrant. Furthermore, the State 

cannot show that further delay in obtaining a warrant past 4:40 a.m. would have 

significantly undermined the efficacy of the blood alcohol test. See Douds, 434 

S.W.3d at 855 (“Nor is there evidence that any ‘further delay in order to secure a 

warrant’ beyond 4:45 a.m. ‘would have threatened the destruction of evidence’ that 

‘is lost gradually and relatively predictably.’”). 

Although Trooper Robinson was unfamiliar with the procedures required to 

obtain a warrant, this in itself, is not an exigent circumstance. See State v. 

Anderson, 445 S.W.3d 895, 903 (Tex. App.—Beaumont 2014, no pet.) (“Some 

examples of exigency include hot pursuit, entering a building to put out a fire,

entering a home to aid an occupant, or, in some contexts, preventing destruction of 
12

evidence.”). The State also argues that the trial judge’s personal recollection that 

Fort Bend County does not generally have a magistrate on-call is evidence that 

Trooper Robinson would have faced an unusual delay in obtaining a warrant. Our

inquiry, however, must focus on the facts and circumstances known to Trooper 

Robinson at the time of the accident. Douds, 434 S.W.3d at 854. Trooper Robinson 

testified that he did not know whether there was a magistrate on-call at the time of 

the accident. The trial judge’s personal knowledge cannot establish whether a 

magistrate was available on the night of the accident. 

The State further argues that the nature of the accident created an exigent 

circumstance because the two vehicles could not be driven and two people were 

transported to the hospital. We decline to examine the nature of the accident 

because the severity of the accident is not the focus of our inquiry. See id. at 853 

(stating that “making courts responsible for grading the severity of accidents would 

lead inevitably to inconsistent outcomes”). Instead, the focus is on whether 

Trooper Robinson objectively believed obtaining a warrant would delay the blood 

draw process. See id. at 854. The above facts, taken together, do not demonstrate 

that Trooper Robinson faced any emergency or unusual delay. See McNeely, 133 S.

Ct. at 1567. Although all findings of historical fact supported by the record must be 

implied in favor of the trial court’s ruling that the blood draw should not be 

suppressed, whether those facts meet the legal standard of exigent circumstances is 

a legal question that we review de novo. Douds, 434 S.W.3d at 855. Because the

accident investigation, by itself, is not an exigent circumstance and the record 

reflects that Trooper Robinson believed he had time to secure a warrant, we hold 

that the State cannot show exigent circumstances existed to justify the warrantless 

seizure. 
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CONCLUSION

We reverse and remand for further proceedings consistent with this opinion. 

 /s/ Ken Wise 

 Justice

Panel consists of Justices McCally, Brown, and Wise.

Do Not Publish — TEX. R. APP. P. 47.2(b).