### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-13-00126- CR

Jerr y Sherry, Appellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F B ASTROP CO UNTY, 21ST JUDICI AL DISTRICT NO. 14,8 87, H ONO RAB LE CHRI STO P HER DARROW DUGGAN, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N
A jury convicted appellant of driving while intox icated, third offe nse or more; he was sentenc ed to 50 y ear s in prison. See Tex. Penal Code §§ 49.04, .09(b) (enha ncing offe nse under 49.04, intox icated while opera ting motor vehicle in public place , to third-deg ree felony ). I n a single appellate issue, appellant argues that section 724.012 of the Texas Transpor tation Code, which provides for the involun t ar y t ak i n g of a blood specimen, is fac ially unconstitutional in light of Missouri v. McNee ly, 133 S. Ct. 1552, 1556 (2013) (holding that natura l metabolization of alcohol in bloodstream does not prese nt per se exigenc y justif y in g e xc e p ti o n to Four

th Amendment’s war

rant require ment for nonc onsensual blood testing in all drunk-driving case s). We aff irm.
BACK GR OUND Appellant was stopped by Depa rtm en t o f P ublic Safety Trooper Christopher W ray for failure to wea

r his seatbe lt. After detec ting the odor of an intox icating bever ag e, Trooper Wrayasked ap p el l an t to step out of the vehicle to perf orm a “horizontal g aze ny stag mus” test; during testing, Trooper Wray observe d six possible indicators of intox icat i o n . Appellant subsequently failed to c omplete the walk and turn field sobriety test, failed to r ecite the alphabe t, failed to c ount from one to forty , and declined to submit to a brea th test. Following appellant’ s ref usal of a breath test, Trooper Wray arr ested appellant and took him to Smit hville Reg ional Hospital for a blood draw

as authorized by Texas Transpor tation Code section 724.012. See Tex. Transp. Code § 724.012(b)( 3)(B ). 1

At trial, Trooper Wray testified that the blood evidenc e wa s statutorily obtained on the basis of his knowledg e that appellant had prior convictions for driving while intox icated, which he obtained from the Depa rtment of Public Safety databa se. For ensic chemist J ames Bur ris als o testified that he e x amined appe llant’s blood and found it to contain .152 g rams of alcohol per 100 milli liters of whole blood, which is near ly twice the leg al limit

. See Tex. Penal Code § 49.01(2)( B)

. Appellant was convicted by the j ury for the offe nse a s ch arge d and was sentenc ed pursuant to the

As rele vant to this case, the sta tute’s spec ific lang

uag e states: 1 (b) A peac e office r shall require the taking of a specimen of the person’ s breath o r b l o o d under any of the following circ umstances if the office r arr ests the person for an offe nse under Chapter 49, Pena l Code, involving the operation of a motor vehicle or a wa terc raf

t and the person r efuse s the offic er’ s reque st to submi t to the taking of a spec imen voluntarily :

. . . . (3) at t h e t i m e of the arr est, the office r possesses or rec eives reliable information from a c redible sour ce tha t the person:

. . . . (B ) on two or more occa sions, has been previously convic t ed o r p lace d on community supervision for an offe nse under Section 49.04, 49.05, 49.06, or 49.065, Penal Code. Tex. Transp. Code § 724.012(b) (3)( B)

. 2habitual-off ender provision of t he penal code to 50 y ear s’ i mprisonment in the Tex as Department of Crim i n al J u s t i ce . See Tex. Penal Code § 12.42(d). On appea l, appellant argues that Texas Transpor tation Code section 724.012, t h e s tatute under which Trooper W ray obtained appellant’s blood sample, is unconstituti onal in light of Missouri v. McNee ly , 133 S. Ct . 1552.
DISCUSSIO N Appellant asser

ts a fac ial challeng e to the constitutionalit y of section 724.012 of the Texas Transpor

tation Code, asser

ting that “no set of circumstance s ex i s t s u n d er which the s tatute will be valid.” See Santikos v. State , 836 S.W .2d 631, 633 (Tex. Crim. App. 1992). Appellant did not r aise this c halleng e in the trial court. Rely ing on Garcia v. State , 887 S.W .2d 846 (Tex. Crim. App. 1994), appellant argues that a defe ndant may raise a constitutional challeng e to the facial validity of a statute for the first time on appea l. See id. at 861 (stating that beca use statute was not fac ially unconstitutional, appellant was require d to raise objection in trial court to prese rve err or for appea l). Howe ver, the Texas Court of Criminal Appeals has since held that “a defe ndant may

not raise for the first time on appea l a fac i al ch al l enge to the constitutionalit y of a statute.” Karenev

v. State , 281 S.W .3d 428, 434 (Tex. Crim. App. 2009). As an intermediate court of appea ls, we are bound to follow the prec edent of the court of criminal appea ls. See Tex. Const. art. V, § 5(a) (cour t of cr iminal appeals is final a uthority for c riminal law in Texas). I n light of Karenev , we hold that beca use appellant did n o t challeng e the fac ial validity of sec tion 724.012 of the Texas Transpor tation Code at trial, he may not r aise the issue of its constitut ionality

for the f irst time on appeal. We over rule a ppellant’s sole issue.

3CONCLUSION Having overr

uled appellant’ s sole issue, we aff irm the trial cour t ’s j u d g ment of convic tion.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ J . Woodfin J ones, Chief Just ice Be fore Chief J ustice Jones, J ustices Goodwin and F ield Affir med Filed: Aug ust 16, 2013 Do Not Publish

4