IN THE COURT

OF CRIMINAL APPEALS OF TEXAS

LAURA DENISE MOORE, § 

APPELLANT § 

 § 

V. § PD-1228-15

 § 

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 REQUESTED

PD-1228-15

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 10/21/2015 5:30:21 PM

Accepted 10/22/2015 1:14:51 PM

ABEL ACOSTA

CLERK
ii

IDENTITY OF THE PARTIES AND COUNSEL

The State of Texas, represented by the Hon. Sharen Wilson, Tarrant 

County Criminal District Attorney, prosecutes this appeal. Additionally, 

representing the State on appeal is the Hon. Tanya S. Dohoney, Assistant 

Criminal District Attorney and Hon. Debra Windsor, Assistant Criminal 

District Attorney and Post-Conviction Chief. At trial, the Hon. Caroline Kim, 

Assistant Criminal District Attorney, 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 Laura Denise Moore. Hon. Mimi 

Coffey and Hon. Joan Cochrane, 4700 Airport Freeway, Fort Worth, Texas, 

76102, and represented Appellee at trial. Hon. Richard A. Henderson, 100 

Throckmorton Street, Suite 540, Fort Worth, Texas 76102, represents 

Appellant on appeal. 

The Hon. Scott Wisch, judge of the 372nd Judicial District Court of 

Tarrant County, Texas, presided over Appellant’s case. The Second Court 

of Appeals transferred this cause to the docket of the Court of Appeals for 

the Eleventh District of Texas. On August 21, 2015, an unpublished 
iii

opinion reversing Appellant’s conviction issued. Moore v. State, No. 11-13-

00347-CR, 2015 WL 5192175 (Tex. App.—Eastland Aug. 21, 2015). The

panel deciding the case consisted of Chief Justice Wright, Justice Willson, 

and Justice Bailey. 
iv

SUBJECT INDEX

IDENTITY OF THE PARTIES AND COUNSEL............................................ i

SUBJECT INDEX ...................................................................................... iv

INDEX OF AUTHORITIES......................................................................... vi

STATEMENT REGARDING ORAL ARGUMENT........................................9

STATEMENT OF THE CASE ...................................................................10

STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE ...........10

STATEMENT OF FACTS .........................................................................10

QUESTIONS PRESENTED FOR REVIEW...............................................12

FIRST QUESTION FOR REVIEW ............................................................12

Does a warrantless, nonconsensual blood draw conducted 

pursuant to TEX. TRANSP. CODE § 724.012(b) violate the Fourth 

Amendment?

SECOND QUESTION FOR REVIEW .......................................................12

Are Fourth Amendment warrant-preference exceptions the sole 

measure of Fourth Amendment reasonableness in warrantless 

scenarios?

THIRD QUESTION FOR REVIEW............................................................12

Do exclusionary rule principles mandate suppression of blood 

evidence seized via a warrantless, nonconsensual, valid-at-thetime mandatory blood draw?

ARGUMENT AND AUTHORITIES............................................................13
v

CONCLUSION AND PRAYER..................................................................26

CERTIFICATE OF COMPLIANCE............................................................27

CERTIFICATE OF SERVICE....................................................................27

APPENDIX .................................................................................................A
vi

INDEX OF AUTHORITIES

CASES

Breithaupt v. Abram,

352 U.S. 432 (1957) ........................................................................22

Cole v. State,

454 S.W.3d 89

(Tex. App.—Texarkana 2014, pet. granted).....................................15

Davis v. United States,

___ U.S. ___, 131 S. Ct. 2419 (2011)........................................23–24

Garcia v. State,

829 S.W.2d 796 (Tex. Crim. App. 1992) ..........................................25

Holidy v. State,

No. 06-13-00261-CR, 2014 WL 1722171

(Tex. App.—Texarkana Apr. 30, 2014, pet. granted ........................14

Hulit v. State,

982 S.W.2d 431 (Tex. Crim. App. 1998) ....................................21–22

Illinois v. Krull,

480 U.S. 342 (1987) ........................................................................23

Maryland v. King,

569 U.S. ___, 133 S. Ct. 1958 (2013)..............................................21

McGee v. State,

105 S.W.3d 609 (Tex. Crim. App. 2003) ..........................................22
vii

McGruder v. State,

No. 10-13-00109-CR, ___ S.W.3d ___, 2014 WL 3973089

(Tex. App.—Waco 2014, pet. granted) ............................................14

Michigan Dept. of State Police v. Sitz,

496 U.S. 444 (1990) ........................................................................21

Miles v. State,

241 S.W.3d 28 (Tex. Crim. App. 2007)............................................16

Moore v. State,

No. 11-13-00347-CR, 2015 WL 5192175

(Tex. App.—Fort Worth Aug. 21, 2015)............................................11

Reeder v. State,

428 S.W.3d (Tex. App.—Texarkana 2014, pet. granted) ................14

Segundo v. State,

270 S.W.3d 79 (Tex. Crim. App. 2008), 

cert. denied, 558 U.S. 828 (2009)..............................................21–22

Skinner v. Railway Labor Executives’ Ass’n,

489 U.S. 602 (1989) ..................................................................18–21

Smith v. State,

No. 13-11-00694-CR, ___ S.W.3d ___, 2014 WL 5901759

(Tex. App.—Corpus Christi 2014, pet. granted)...............................14

State v. Daugherty,

931 S.W.2d 268 (Tex. Crim. App. 1996) ..........................................25

State v. Villarreal,

PD-0306-14, ___ S.W.3d ___, 2014 WL 6734178

(Tex. Crim. App. 2014) .............................................................passim

Tharp v. State,

935 S.W.2d 157 (Tex. Crim. App. 1996) ..........................................19
viii

Vernonia School Dist. 47J v. Acton,

515 U.S. 646 (1995) ........................................................................20

Weems v. State,

434 S.W.3d 655

(Tex. App.—San Antonio 2014, pet. granted) ...........................14–15

STATUTES

TEX. CODE CRIM. PROC. art. 14.04..............................................................18

TEX. CODE CRIM. PROC. art. 18.16..............................................................16

TEX. CODE CRIM. PROC. art. 38.23........................................................24, 26

TEX. PENAL CODE § 1.07(a)(30)..................................................................24

TEX. PENAL CODE § 49.04(a)................................................................11, 16

TEX. PENAL CODE § 49.09(b)(2) ...........................................................11, 16

TEX. TRANSP. CODE § 724.012(b)........................................................passim

TEX. TRANSP. CODE § 724.012(b)(3)...........................................................16

TEX. TRANSP. CODE § 524.012(b)(1) ..........................................................19

U.S. CONST. amend. IV ....................................................................passim

RULES

TEX. R. APP. P. 66.3 ..................................................................................15

TEX. R. APP. P. 9.4 ....................................................................................28
9

IN THE COURT

OF CRIMINAL APPEALS OF TEXAS

LAURA DENISE MOORE, § 

APPELLANT § 

§ 

V. § PD-1228-15

§ 

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

While the reasonableness of statutory mandatory blood draws merits 

argument, this Court has already heard oral argument on the instant issues 

in other cases currently before the Court. Therefore, the State does not 

request oral argument in this case. 
10

STATEMENT OF THE CASE

A jury convicted Appellant of felony driving while intoxicated. TEX.

PENAL CODE §§ 49.04(a), 49.09(b)(2).

1

 (CR1:6, 142,149-50; RR4:29; 

RR6:18-19). Subsequently, the trial court sentenced Appellant to ten

years’ incarceration, probated for five years; the judge also assessed a 

$1500 fine. (CR1:149-50; RR7:137-41). 

STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE

The Eastland Court of Appeals reversed the trial court in an

unpublished opinion authored by Chief Justice Willson. Moore v. State, No. 

11-13-00347-CR, 2015 WL 5192175 (Tex. App.—Fort Worth Aug. 21,

2015). Rehearing was not sought. The State files this petition, due on 

October 21, 2015, following one extension.

STATEMENT OF FACTS

In this felony driving while intoxicated prosecution, officers seized

Appellant’s blood pursuant to the mandatory blood draw provision 

contained in Texas’ implied-consent law. TEX. TRANSP. CODE §724.012(b). 

 1

 Statutory references cited throughout refer to the current version unless noted. 
11

At the trial court level, the judge denied Appellant’s motion to suppress the 

blood evidence. (CR1:138-40; RR3:13-14). On appeal, Appellant’s first 

point of error relied on the McNeely decision. Missouri v. McNeely, 569 

U.S. ___, 133 S. Ct. 1552 (2013). Appellant also raised two additional jury 

instruction contentions; they remain unaddressed due to the appellate 

disposition of the McNeely claim. Moore, 2014 WL 5192175, at *1. 

The Eastland Court of Appeals reversed on the blood draw issue; the 

appellate court rejected the State’s various arguments regarding the 

propriety of the trial judge’s suppression ruling. Id. at *1-5. The trial court

had denied suppression, entering express findings that:

1) probable cause supported the DWI arrest; 

2) the officer possessed reliable information revealing 

Appellant’s two prior DWIs;

3) Appellant refused to provide a breath specimen;

4) Texas’ implied consent framework existed for decades and

had been enacted due to public policy concerns; 

5) the instant officer relied on the blood draw statute instead of

seeking a warrant; and 

6) under these circumstances, the compelled sample was 

constitutionally reasonable. 

(RR2:24-26,36,43; RR3:8-14). In addition to the ruling on the merits of the 

McNeely point, the interim appellate court rejected the State’s argument 

regarding the inapplicability of the exclusionary rule in this case. Moore, 

2014 WL 5192175, at *4-5. 
12

QUESTIONS PRESENTED FOR REVIEW

FIRST QUESTION FOR REVIEW

Does a warrantless, nonconsensual blood draw

conducted pursuant to TEX. TRANSP. CODE § 724.012(b)

violate the Fourth Amendment?

SECOND QUESTION FOR REVIEW

Are Fourth Amendment warrant-preference exceptions 

the sole measure of Fourth Amendment reasonableness 

in warrantless scenarios?

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? 
13

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 remains in flux since the Court granted 

rehearing last February. State v. Villarreal, PD-0306-14, ___ S.W.3d ___, 

2014 WL 6734178 (Tex. Crim. App. 2014) (reh’g granted, re-submitted 

Mar. 18, 2015). Additionally, the appellate milieu includes six other 

submitted McNeely-inspired cases. 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, PD0601-14); 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

14, 2015, PD-0622-14); Cole v. State, 454 S.W.3d 89 (Tex. App.—

Texarkana 2014, pet. granted Apr. 22, 2015) (submitted on arguments Sep. 

16, 2015, PD-0077-15).

The State’s instant petition focuses on two aspects of any McNeelyrelated 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 

exclusionary rule. Villarreal, 2014 WL 6734178. Nevertheless, the

exclusionary rule 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). In other words, this Court has already granted 

review on both issues presented herein. 

Review should be granted in this case because it involves important 

questions of law that are have not yet been finally addressed by this Court, 

matters in conflict in the interim appellate courts, and a misapplication of a 

Supreme Court decision that has been interpreted as undermining the 

validity of the Texas implied-consent statute. TEX. R. APP. P. 66.3(a)-(d),(f). 
15

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, Weems, Reeder, Smith, McGruder, Holidy, and Cole. 

Here, the officer reasonably relied on an existing, ubiquitous narrowlyfocused, reasonable statute to obtain a compelled blood draw. The seizure 

occurred because the officer possessed probable cause that Appellant’s 

impaired conduct constituted felony DWI. TEX. PENAL CODE §§ 49.04(a), 

49.09(b)(2); TEX. TRANSP. CODE § 724.012(b)(3). 

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 TEX. CODE 

CRIM. PROC. art. 18.16). McNeely recognized that every case involving the 
16

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 this 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. TEX. TRANSP. CODE 

§ 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 
17

because the State’s interest is greater in a more serious case. Cf. TEX.

CODE CRIM. PROC. 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. TEX. TRANSP. CODE § 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-incustody arrestee. These refinements in the implied-consent statute’s 

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 
18

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 TEX. TRANSP. CODE

§ 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. 
19

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-intrusivealternative-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 
20

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. 

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. CONST. 

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). 
21

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 
22

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

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 2013 pronouncement.

Federally, the good-faith exception to the Fourth Amendment’s 

exclusionary rule applies when law enforcement, at the time of the search, 

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. 342, 349–57 (1987) (statutes); Davis v. United 

States, ___ U.S. ___, 131 S. Ct. 2419, 2428–34 (2011) (caselaw). 

Nor does the Texas exclusionary rule apply. First, the officer’s 

conduct at the time did not trigger exclusions under subsection (a). 
23

Second, the statutory good faith exception set out in article 38.23(b) is 

inapplicable in this instance and has been previously misinterpreted. TEX.

CODE CRIM. APP. § 38.23(b). Overall, invocation of exclusionary rule 

principles should hinge on the intent of the statute as a whole, including its 

history. 

As for subsection (a)’s language, a violation at the time of the seizure 

is the exclusion trigger. When Appellant’s blood was drawn, no one 

credibly questioned the validity of the officer’s statutory authority. At the 

time of the seizure, the officer followed then-existing law. See TEX. CODE 

CRIM. PROC. art. 38.23(a); see also TEX. PENAL CODE § 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. 

Additionally, the State avers that Texas jurisprudence mistakenly 

limits exclusionary rule application; legislators never intended that article 

38.23(b)’s warrant provision be the sole exclusionary exception. Instead, 

Texans were to be afforded the same exclusionary protection coextensive 
24

with federal law. See State v. Daugherty, 931 S.W.2d 268, 275 & n.1 (Tex. 

Crim. App. 1996) (McCormick, P.J., concurring and dissenting, joined by 

White and Keller, JJ.) (citations omitted); Garcia v. State, 829 S.W.2d 796,

803 n.1 (Tex. Crim. App. 1992) (Miller, J., concurring, joined by Campbell, 

J.). Finally, rejecting exclusion where an officer acted with obeisance to 

existing rules provides incentive for officers to follow the law, fulfilling the 

overlying purpose of the exclusionary rule. 

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 that had been briefly considered in 
25

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. TEX. CODE CRIM. PROC. 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. 
26

CONCLUSION AND PRAYER

Review should be granted and the decision of the Court of Appeals 

should be reversed. The cause should be remanded to the Court of 

Appeals to address Appellant’s remaining jury-charge-related issues. 

Ultimately, Appellant’s felony DWI with a child passenger 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
27

CERTIFICATE OF COMPLIANCE

This document complies with the typeface requirements of TEX. R.

APP. 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 TEX. R. APP. P. 9.4 (i)

because it contains less than 3900 words, excluding any parts exempted 

by TEX. R. APP. 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 brief has been e-served to opposing 

counsel, the Hon. Richard Henderson, 1999 Throckmorton Street, Suite 

540, Fort worth, Texas 76102 at richard@rahenderson.com, on the 21st day 

of October, 2014.

/s/ Tanya S. Dohoney 

TANYA S. DOHONEY

U:\BRIEFS\PDRs & Merit Briefs\101215 moore mcneely pdr.docx
A

APPENDIX

Moore v. State, 

No. 11-13-00347-CR, 2015 WL 5192175

(Tex. App.—Eastland Aug. 21, 2015)
Moore v. State, Not Reported in S.W.3d (2015)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

2015 WL 5192175

Only the Westlaw citation is currently available.

SEE TX R RAP RULE 47.2 FOR

DESIGNATION AND SIGNING OF OPINIONS.

DO NOT PUBLISH. SEE TEX. R. APP. P. 47.2(B).

Court of Appeals of Texas,

Eastland.

Laura Denise Moore, Appellant

v.

The State of Texas, Appellee

No. 11–13–00347–CR |

Opinion filed August 21, 2015

On Appeal from the 372nd District Court, Tarrant

County, Texas, Trial Court Cause No. 1311911D

Attorneys and Law Firms

Charles M. Mallin, Tanya S. Dohoney, for State of Texas.

Richard A. Henderson, for Laura Denise Moore.

Panel consists of: Wright, C.J., Willson, J., and Bailey, J.

MEMORANDUM OPINION

MIKE WILLSON, JUSTICE

*1 The judgment of the trial court in this case reflects

that the jury found Appellant, Laura Denise Moore, guilty

of “driving while intoxicated and felony repetition,” a thirddegree felony. 1

 Appellant elected to have the trial court

assess punishment, and it assessed Appellant's punishment at

confinement for ten years and a $1,500 fine. 2 The trial court

suspended the confinement portion of the sentence and placed

Appellant on community supervision for a term of five years.

We reverse and remand.

1 TEX. PENAL CODE ANN. §§ 49.04, 49.09(b) (West

Supp.2014).

2

See PENAL § 12.34 (West 2011).

I. The Charged Offense

The grand jury returned an indictment alleging that Appellant

operated a motor vehicle in a public place while intoxicated

and that Appellant had twice before been convicted of the

offense of driving while intoxicated. A person commits the

offense of driving while intoxicated, felony repetition, “if the

person is intoxicated while operating a motor vehicle in a

public place” and it is shown that “the person has previously

been convicted ... two times of any other offense relating to

the operating of a motor vehicle while intoxicated.” Penal §§

49.04(a), 49.09(b)(2).

II. Issues Presented

Appellant argues, in her first issue, that the trial court erred

when it denied her motion to suppress evidence from the

blood draw because her blood was drawn illegally. 3 In her

second and third issues, she argues that the trial court erred

when it denied her requests for a jury instruction under

Article 38.23 of the Texas Code of Criminal Procedure 4 on

the validity of the traffic stop and the blood draw. In her

final issue, Appellant argues that the trial court erred when

it denied her motion for mistrial after the State's witness

improperly testified about an alleged extraneous offense.

3 Appellant's case is a transfer case from the Second

Court of Appeals in Fort Worth, and under Rule 41.3

of the Texas Rules of Appellate Procedure, we apply its

precedent unless we determine that our sister court would

decline to do so.

4

See TEX.CODE CRIM. PROC. ANN. art. 38.23(a)

(West 2005).

III. Evidence at Trial

Officer Mark Miller of the Bedford Police Department was

on patrol at approximately 4:50 a.m. when he saw Appellant

come “very close to failing to yield” to other cars. Officer

Miller then saw Appellant abruptly make an illegal left turn

from the center lane. He turned on his emergency lights and

stopped Appellant. Before he could speak to Appellant, she

drove her vehicle out of the parking lot and onto the street.

Officer Miller pursued her with both his emergency lights and

siren activated, and Appellant abruptly pulled into the parking

lot of a shopping center.

Appellant was seated in the driver's seat of her vehicle.

Officer Miller approached Appellant. When he reached the
Moore v. State, Not Reported in S.W.3d (2015)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

window area where Appellant was seated, he smelled a

“moderate odor of alcoholic beverage” and also noticed

that Appellant's eyes were “extremely watery.” He asked

Appellant where she was coming from and where she was

going; Appellant answered “home” to each question. Officer

Miller described Appellant's speech as “very slurred.” Based

on his observations, Officer Miller decided to conduct a

standardized field sobriety test. The test is composed of three

parts. Appellant failed two of the three parts, and based

on those results and Officer Miller's observations before he

administered the sobriety test, he arrested her for driving

while intoxicated. Officer Miller transported Appellant to the

jail.

*2 Officer Miller also learned from questioning Appellant

and from a check of criminal history records, that she had

been convicted of driving while intoxicated on two previous

occasions. Officer Miller read Appellant the statutory

warnings on the DIC–24 form 5 and asked if she would

provide him with a breath sample; she refused. Officer Miller

testified that, because Appellant had two prior convictions

for driving while intoxicated, he was required 6 to obtain a

sample of Appellant's blood or breath. Officer Miller secured

a blood draw kit, transported Appellant to a local hospital, and

had a registered nurse draw a specimen of Appellant's blood.

Officer Miller noted that he could have obtained a warrant

but that he did not do so because he had arrested Appellant

for driving while intoxicated after she already had two prior

convictions for that same offense.

5 A DIC–24 warning is a Department of Public Safety

Form that provides the warnings outlined in Section

724.015 of the Texas Transportation Code. See TEX.

TRANSP. CODE ANN. § 724.015 (West 2011).

6

See TRANSP. § 724.012(b).

IV. Analysis

We will only address Appellant's first issue. As we explain

below, the resolution of that issue obviates the need for us to

address her remaining issues.

A. Standard of Review

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 if 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.

B. Motion to Suppress

Appellant argued in her pretrial motion to suppress that the

blood draw and the test results were inadmissible because

the blood specimen had been illegally drawn. The trial court

initially denied her motion. At trial, Appellant re-urged her

objection, and the trial court carried the motion through trial

and then denied it again. Appellant asserts that the taking of

her blood was in violation of her constitutional rights because

the blood draw was conducted without a warrant, consent, or

any other recognized exception to the warrant requirement.

The State asserts that the blood draw was constitutional

because it was reasonable and that, regardless, the exceptions

of implied consent and search incident to arrest dispensed

with the warrant requirement. Further, the State asserts

that, even if the search was not reasonable and no warrant

exception applies, the exclusionary rule does not operate to

exclude the evidence. Absent a warrant, a search is presumed

unreasonable, and the State carries the burden to prove that an

exception to the warrant requirement applies. See Gutierrez

v. State, 221 S.W.3d 680, 685 (Tex.Crim.App.2007). The

State stipulated that Appellant's blood was drawn without

a warrant. Therefore, the State had the burden to prove an

exception to the warrant requirement.

C. Implied Consent

The State first argues that Officer Miller had implied consent

to draw Appellant's blood in accordance with Section 724.012

of the Texas Transportation Code. See TRANSP. § 724.012.

Section 724.012 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 if one of three circumstances is

met. Id. § 724.012(b). The relevant circumstance is that,

“at the time of the arrest, the officer possesses or receives
Moore v. State, Not Reported in S.W.3d (2015)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3

reliable information from a credible source that the person”

has been convicted of driving while intoxicated on two prior

occasions. Id. § 724.012(b)(3)(B). Section 724.011 provides

that, if such a person is arrested for driving while intoxicated,

the person is deemed to have consented to the submission of

a specimen of breath or blood for analysis to determine the

alcohol concentration in the person's body. Id. § 724.011.

*3 Implied consent under the Texas Transportation Code

is not a recognized exception to the warrant requirement,

and the State cannot rely on it alone to justify a warrantless

blood draw. See Burks v. State, 454 S.W.3d 705, 708–09

(Tex.App.— Fort Worth 2015, pet. filed); Forsyth v. State,

438 S.W.3d 216, 223 (Tex.App.—Eastland 2014, pet. ref'd);

Douds v. State, 434 S.W.3d 842, 861 (Tex.App.— Houston

[14th Dist.] 2014, pet. granted); Weems v. State, 434 S.W.3d

655, 664 (Tex.App.—San Antonio 2014, pet. granted). We

note the reasoning and holdings in these cases, and we decline

to adopt the State's argument that it had implied consent to

draw Appellant's blood without a warrant. We cannot uphold

the trial court's ruling on such grounds.

D. Fourth Amendment Reasonableness

The State next asserts that the mandatory blood draw was

a reasonable search under the Fourth Amendment and that

a warrant was not required. Under a Fourth Amendment

balancing test, we balance the intrusion on the person's Fourth

Amendment interests against the promotion of a legitimate

interest of the government. See Schenekl v. State, 30 S.W.3d

412, 413 (Tex.Crim.App.2000). The Supreme Court has

described a blood draw as “a compelled physical intrusion

beneath [the accused's] skin and into his veins to obtain

a sample of his blood for use as evidence in a criminal

investigation.” Missouri v. McNeely, 133 S.Ct. 1552, 1558

(2013). The Supreme Court continued, “Such an invasion of

bodily integrity implicates an individual's ‘most personal and

deep-rooted expectations of privacy.’ ” Id. (quoting Winston

v. Lee, 470 U.S. 753, 760 (1985)). 7 We have considered this

issue before, and we have declined “to hold that mandatory

blood draws under the Texas Transportation Code are per se

reasonable.” Forsyth, 438 S.W.3d at 224.

7 We note that the Court of Criminal Appeals recently

addressed, under the Fourth Amendment to the United

States Constitution, the constitutionality of warrantless,

nonconsensual blood draws under Section 724.012 of

the Texas Transportation Code. See State v. Villarreal,

No. PD–0306–14, 2014 WL 6734178 (Tex.Crim.App.

Nov. 26, 2014). We also note that the Court of Criminal

Appeals granted rehearing in State v. Villarreal on

February 25, 2015.

Officer Miller testified that he relied on the implied consent

provision of the Texas Transportation Code as justification

for the warrantless blood draw. He also agreed he could have

obtained a warrant, but he chose to rely on the statute because

Appellant's arrest for driving while intoxicated followed

two prior convictions for the same offense. In that context,

and considering that mandatory blood draws are not per se

reasonable, we cannot uphold the trial court's decision that the

warrantless blood draw was reasonable. Forsyth, 438 S.W.3d

at 224.

E. Search Incident to Arrest

The State's third argument is that the mandatory blood draw

constitutes a lawful search “incident to arrest.” The searchincident-to-arrest exception to the warrant requirement

applies only if the search is “substantially contemporaneous”

with the arrest and is also confined to the area within the

immediate control of the suspect. State v. Granville, 423

S.W.3d 399, 410 (Tex.Crim.App.2014) (quoting Vale v.

Louisiana, 399 U.S. 30, 33 (1970)). The purpose of the search

is to protect the officer, prevent an escape, or protect the

loss or destruction of evidence. Id. at 410. Therefore, when a

search is not sufficiently close in time or place to the arrest,

then the search-incident-to-arrest exception is not normally

justified. Id. Furthermore, the exception is usually applied to

an “active attempt by a defendant or his associates to conceal

or destroy evidence upon arrest.” Riley v. California, 134

S.Ct. 2473, 2486 (2014).

*4 Appellant's blood was drawn at a hospital after Appellant

had been arrested and transported to the jail and then to the

hospital. Under these facts, we cannot say that officer safety

or prevention of escape was implicated. As to the argument

that the blood draw was necessary to protect the destruction of

evidence, we cannot say that the natural dissipation of alcohol

in the blood constitutes an “active attempt ... to conceal

or destroy evidence.” Id. Based upon the rationale of the

searchincident-to-arrest exception to the warrant requirement

and upon the fact that the search was not close in time or place

to the arrest, we hold that such an exception is not applicable

in this case to support the warrantless blood draw.

F. Exclusionary Rule

The State's final argument is that, even if the blood draw

was unlawful, the Texas exclusionary rule does not apply
Moore v. State, Not Reported in S.W.3d (2015)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4

because Officer Miller followed an existing statute that

had not been held unconstitutional when he arranged for

the warrantless blood draw. We disagree with the State's

contention. Article 38.23 of the Texas Code of Criminal

Procedure, the Texas exclusionary rule, states, “No evidence

obtained by an officer ... in violation of any provisions of the

Constitution or laws of [either Texas or the United States],

shall be admitted in evidence against the accused on the trial

of any criminal case.” CRIM. PROC. art. 38.23(a).

The statute also provides an exception to the exclusionary

rule, but “only when an officer relies in good faith upon a

warrant issued by a neutral magistrate based on probable

cause.” Weems, 434 S.W.3d at 666–67 (citing CRIM. PROC.

art. 38.23(b)). There is no exception to the Texas exclusionary

rule for good faith reliance on a statute. Burks, 454 S.W.3d at

709; Forysth, 438 S.W.3d at 224; Douds, 434 S.W.3d at 861;

Weems, 434 S.W.3d at 666–67. Officer Miller did not obtain

a warrant, and no exception to the exclusionary rule applies.

And nothing in Section 724.012 of the Transportation Code

instructs an officer to take a suspect's blood without a warrant

or provides a valid exception to the warrant requirement of

the Fourth Amendment. See TRANSP. § 724.012; see also

Forsyth, 438 S.W.3d at 224–25. Thus, the evidence should

have been excluded. We sustain Appellant's first issue.

G. Rule 44.2(a) Harm Analysis

Because the warrantless mandatory blood draw violated

Appellant's rights under the Fourth Amendment, we must

reverse the judgment unless we determine beyond a

reasonable doubt that the error did not contribute to the

conviction or punishment. TEX.R.APP. P. 44.2(a); Weems,

434 S.W.3d at 667. The jury was instructed as follows:

“Intoxicated” means:

(A) not having the normal use of one's mental or physical

faculties by reason of the introduction of alcohol into the

body; OR

(B) having an alcohol concentration of 0.08 or more.

Officer Miller testified that he stopped Appellant because she

came very close to failing to yield to other cars and then

made an illegal left turn from the center lane. Officer Miller

stopped Appellant, but before he could speak to her, she drove

away. Officer Miller stopped her again when she pulled into a

parking lot at a shopping center. He spoke to her and noticed a

moderate odor of alcohol. Officer Miller said Appellant's eyes

were watery and her speech was very slurred. He conducted

a field sobriety test in three parts. Appellant failed two parts,

and Officer Miller arrested her.

At the jail, Appellant refused to take a breath test.

Subsequently, her blood was taken by a nurse, who handed

the blood samples to Officer Miller. Officer Miller placed

them in evidence envelopes and put them in a refrigerated

locker in a secure location at the jail. The samples were then

taken to the Integrated Forensic Laboratories where forensic

scientist Aubrey Norberg worked. Norberg tested the blood

samples from Appellant and testified that Appellant's blood

alcohol concentration (BAC) was 0.16 grams of ethyl alcohol

per 100 milliliters of whole blood. The State emphasized this

evidence during trial. After a review of the record, we cannot

say beyond a reasonable doubt that the blood sample evidence

did not contribute to Appellant's conviction. See Tex.R.App.

P. 44.2(a); Weems, 434 S.W.3d at 667; see also Forsyth, 438

S.W.3d at 225.

V. Conclusion

*5 We hold that the trial court erred when it denied

Appellant's motion to suppress the evidence from the blood

draw. In light of that holding, we need not address Appellant's

other issues.

VI. This Court's Ruling

We reverse the judgment of the trial court and remand this

cause to the trial court for further proceedings consistent with

this opinion.

All Citations

Not Reported in S.W.3d, 2015 WL 5192175

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.