## #15-

__ __________

Court of Criminal Appeals of Texas



## THE STATE OF TEXAS

,

Petitioner

v.


## MITCHELL McCLENDON

,

Respondent

State’s Petition from the 13th District Court of Appeals (Cause # 13

- 13 -00357- CR), on State’s Appeal from the 28th District Court of

Nueces County (Cause #12- CR -1886- A)



## STATE’S PETITION FOR DISCRETIONARY REVIEW

A. Cliff Gordon Tex. Bar #00793838 Asst. Dist. Atty., 105th Dist. Nueces County Courthouse 901 Leopard St., Rm. 206 Corpus Christi, TX 78401 361.888.0410 phone 361.888.0399 fax cliff.gordon@nuecesco.com

Attorney for Petitioner PD-0999-15 COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS Transmitted 8/3/2015 10:45:41 AM Accepted 8/6/2015 11:39:01 AM

ABEL ACOSTA CLERKi 

### IDENTITY OF JUDGE, PARTIES , AND COUNSEL

Trial Court Judge : Honorable Nanette Hasette , Presiding Judge of the 28th

District Court of Nueces County

Petitioner : The State of Texas, District Attorn ey for the 105th Judicial

District, represented by

Appellate counsel:

A. Cliff Gordon, Asst. Dist. Atty. 901 Leopard St., Rm. 206 Corpus Christi, TX 78401

Trial and appellate counsel:

Mark Skurka, District Attorney Crystal Mathis , Asst. Dist. Atty. 901 Leopard St., Rm. 206 Corpus Christi, TX 78401

Respondent : Mitchell McClendon , represented by

Trial and Appellate Counsel:

Alex J. Scharff Campion & Campion 222 E. Main Plaza San Antonio, TX 78205

Fred Jimenez Law Offices of Fred Jimenez 509 Lawrence St. Ste. 301 Corpus Christi, TX 78401ii 

### TABLE OF CONTENTS

IDENTITY OF JUDGE, PARTIES, AND COUNSEL

................................ ......... i

INDEX OF AUTHORITIES

................................ ................................ .................. iii

STATEMENT REGARDING ORAL ARGUMENT

................................ .......... iv

STATEMENT OF THE CASE

................................ ................................ .............. iv

STATEMENT OF PROCEDURAL HISTORY

................................ ................... iv QUESTION PRESENTED FOR REVIEW

................................ ........................... v
1. Whether the implied consent and mandatory blood draw provisions of the Texas Transportation Code are a

cons titutionally valid alternative to the warrant requirement

........... v
ARGUMENT

................................ ................................ ................................ ............ 1

PRAYER

................................ ................................ ................................ .................... 1

CERTIFICATE OF COMPLIANCE

................................ ................................ ...... 2

CERTIFICATE OF SERVICE

................................ ................................ ................. 3

APPENDIX

................................ ................................ ................................ ............... 4

1. Opinion of the 13th Court of Appeals

................................ ..................... 4iii 

### INDEX OF AUTHORITIES

Cases
State v. Villarreal, No. PD

- 0306

- 14, 2014 WL 6734178 (Tex. Crim. App. Nov. 26, 2014), reh’g granted (Feb. 25, 2015)

................................ ............ 1

Rules Tex. R. App. P. 66.3

................................ ................................ ................................ . 1iv 

### STATEMENT REGARDING ORAL ARGUMENT

The State does not believe that oral argument would be helpful to

determ ine this appeal because the issue has already been argued in State v.

Villarreal , No. PD

- 0306

- 14, 2014 WL 6734178 (Tex. Crim. App. Nov. 26,

2014), reh’g granted (Feb. 25, 2015)

.

STATEMENT OF THE CASE
A grand jury indicted Mitchell McClendon for Felony Driving While

Intoxicated. CR 3. The trial court granted his motion to suppress evidence

relating to the warrantless draw of his blood pursuant to T EX



### . T RANSP



### .

C ODE 

### § 724.012(b) . CR 63. T he State timely appealed. CR 65

. The 13th

Court of Appeals affirmed, holding that § 724.012 is not a constitutionally

recognized alternative to the warrant requirement. Opinion at 5.

STATEMENT OF PROCEDURAL HISTORY Date court of appeals’ Opinion handed down July 2 , 2015

Date State filed Motion for Rehearing n/a

Date Motion for Rehearing overruled n/av 

### QUESTION PRESENTED FOR REVIEW

1. Whether the implied consent and mandatory blood draw provisions

of the Texas Transportation Code are a constitutionally valid

alternative to the warrant requirement. CR 63; RR 33

- 34, 37

- 39.1 

### ARGUMENT
Although this issue was initially decided against the State in State v.

Villarreal , No. PD

- 0306

- 14, 2014 WL 6734178 (Tex. Crim. App. Nov. 26,

2014), reh’g granted (Feb. 25, 2015)
, the Court has yet to issue a final

decision. Thus, the State respectfully requests that cases like the present

on e, with similar or identical issues, be held under consideration until

Villarreal does become final and binding.

T he State continues to argue that the implied consent and mandatory

blood draw provisions of the Texas Transportation Code are a

constitutiona lly valid alternative to the warrant requirement, and that the

decision of the Thirteenth Court of Appeals to the contrary decides an

important question of federal law that has not been, but should be, settled

by the Court of Criminal Appeals. See Tex. R. App. P. 66.3 (b)

.

PRAYER
For these reasons, the State requests that the Court grant this petition

for discretionary review, reverse the court of appeals’ judgment, and grant

the State all other proper relief

.2 

### Respectfully Submi tted,

/s/ A. Cliff Gordon A. Cliff Gordon Tex. Bar #00793838 Asst. Dist. Atty., 105th Dist. Nueces County Courthouse 901 Leopard St., Rm. 206 Corpus Christi, TX 78401 361.888.0410 phone 361.888.0399 fax cliff.gordon@nuecesco.com

CERTIFICATE OF COMPLIANCE
According to the word count of the computer program used to prepare this docu ment, it contains 7 70 words.3 

### CERTIFICATE OF SERVICE

On August 3 , 2015, a true copy of the foregoing was served via eServe on the following:

Alex J. Scharff Campion & Campion 222 E. Main Plaza San Antonio, TX 78205

Fred Jimenez Law Offices of Fred Jimenez 509 Lawrence St. Ste. 301 Corpus Christi, TX 78401 Appellate Counsel for Appellee

/s/ A. Cliff Gordon

_______________ A. Cliff Gordon4 

### APPENDIX

1. Opinion of the 13th Court of Appeals

### N UMBER 13

- 13

- 00357

- CR



## COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

– EDINBURG

THE STATE OF TEXAS, Appellant,

v.

MITCHELL McCLENDON, Appellee.

On appeal from the 28th District Court

of Nueces County, Texas.



## MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Garza and Longoria

Memorandum Opinion by Chief Justice Valdez

By one issue, t he State appeals the trial court’s granting of appellee Mitchell

McClendon ’ s motion to suppress . We affirm.

I. B ACKGROUND2

Officer Brett Boyer arrested McClendon for suspicion of driving while intoxicated.

A fter McClendon refused to provide a blood sample, without first obtaining a warrant,

Officer Boyer ordered a phlebotomist to acquire a sample of McClendon’s blood pursuant

to section 724.012 (b) (3) of the Texas Transportation Code. See T EX

. T RANSP

. C ODE A NN

. § 724.012 (West, Westlaw through Ch. 46 2015 R.S.) (setting out when a police officer is

require d to obtain a blood sample from a person suspected of driving under the influence ).

At the motion to suppress hearing, McClendon’s trial counsel argued that Boyer failed to

obtain a warrant prior to the blood draw as required under Missouri v. McNeely

. See

Missouri v. McNeely

, __ U.S. __, 133 S.Ct. 1552 (2013). The State responded that the

blood draw statute supported Officer Boyer’s ordering of the blood draw and that Officer

Boyer relied on the statute in good faith. The State conceded that there wer e no exigent

circumstances in this case, and it did not argue that any other exception to the warrant

requirement applied. 1

The trial court granted McClendon’s motion to suppress and entered findings of

fact and conclusions of law

. This appeal followed.

I I. S TANDARD OF R EVIEW AND A PPLICABLE L AW
We review a trial court’s decision on a motion to suppress for an abuse of

discretion. Crain v. State , 315 S.W.3d 43, 48 (Tex. Crim. App. 2010). Under our abuse

of discretion analysis, we use a bifurcated standard

. State v. Ross , 32 S.W.3d 853, 856

1 Spec ifically, the prosecutor said

, And in this case, the case against [McClendon], the State isn’t arguing that it wasn’t a standard DWI, or that there were any exigent circumstances. We heard from the officers that there were none. We are only arguing that the purpose of, or the reason behind the blood draw was the statute that required him to get the blood sample. And for that reason, we ask that the defendant’ s motion to suppress is denied.3

(Tex. Crim. App. 2000) (en banc) (citing Guzman v. State , 955 S.W.2d 85, 88 (Tex. Crim.

App. 1997) (en banc)); see also Urbina v. State , No. 13

– 08

– 00562

– CR, 2010 WL

3279390 , at *1 (Tex. App.

— Corpus Christi Aug. 19, 2010 , pet. ref’ d) (mem. op., not
designated for publication). We give almost total deference to the trial court’s findings of

historical fact that are supported by the record and to its resolution of mixed questions of

law and fact that turn on an evaluation of credibility and demeanor. Amador v. State , 221

S.W.3d 666, 673 (Tex. Crim. App. 2007) (citing Guzm an , 995 S.W.2d at 89). We “review

de novo ‘mixed questions of law and fact’ that do not depend upon credibility and

demeanor.” Id. (quoting Montanez v. State , 195 S.W.3d 101, 107 (Tex. Crim. App. 2006));

Guzman , 995 S.W.2d at 89.

“When a trial court makes explicit fact findings, the appellate court determines

whether the evidence (viewed in the light most favorable to the trial court’s ruling) supports

these fact findings.” State v. Kelly , 204 S.W.3d 808, 818 (Tex. Crim. App. 2006 ). We will

uphold the trial court’s ruling under any applicable theory of law supported by the facts of

the case whether we infer the fact findings or whether we consider express findings.

Alford v. State , 400 S.W.3d 924, 929 (Tex. Crim. App. 2013). “Si milarly, regardless of

whether the trial court has made express conclusions of law, we uphold the trial court’s

ruling under any theory supported by the facts because an appellate court reviews

conclusions of law de novo.” Id. Under our de novo review, w e are not required to defer

to a trial court’s particular theory. Id. This “rule holds true even if the trial court gave the

wrong reason for its ruling.” Armendariz v. State , 123 S.W.3d 401, 403 (Tex. Crim. App.

2003).4

“ To suppress evidence on an alleg ed Fourth Amendment violation, the defendant

bears the initial burden of producing evidence that rebuts the presumption of proper police

conduct.” Ford v. State , 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). “A defendant

satisfies this burden by establishi ng that a search or seizure occurred without a warrant.”

Id

. Once a defendant establishes there was no warrant, the burden shifts to the State to

prove the warrantless search was reasonable under the totality of the circumstances.

Amador , 221 S.W.3d at 672

– 73. The State satisfies this burden if it proves an exception

to the warrant requirement. See Gutierrez , 221 S.W.3d at 685.

III

. D ISCUSSION

T he State appears to argue that section 724.012 (b) is a valid except ion to the

warrant requirement. 2 McClendon first responds that the State’s brief is multifarious and

then argues that the trial court properly concluded that Officer Boyer was required to

obtain a warrant and there were no exigent circumstances shown to allow the blood draw.

This Court ha s already determ ined that the Legislature did not mean to c ircumvent

the Fourth Amendment’s requirement that the police officer acquire a warrant prior to

acquiring a blood sample after the suspect refuses to provide a specimen regarding

sub section (b)(3) of the mandatory blood draw statute. See State v. Villarreal , No. 13

–

2 In its brief, the State claims that the “trial court abused its discretion by granting [McClendon’s] motion to suppress blood test based solely on [McClendon’s] argument that the mandatory draw statute is unconstitutional.” We disagree that the trial court concluded that the mandatory draw statute is unconstitutional or that the constitutionality of the statute was at issue at the hearing. Instead, at the hearing, all parties agreed that the only issue before the trial court was whether Officer Boyer was required to obtain a warrant prior to the blood draw. The pros ecutor stated, “ And, Your Honor, prior to the beginning of this we discussed that the only issue that would be discussed today would be the warrantless blood draw.” And, McClendon’s trial counsel said, “I don’t want to take on the entire state of Texas to say the statute is unconstitutional in general, just say as applied in this case, because it does violate the warrant requirement of the [Fourth] Amendment and the United States Constitution, Texas Constitution, and Code of Criminal Procedure.” Therefore , to the extent that the State argues on appeal that the statute is constitutional, we need not address that issue as it is not dispositive of the appeal. See T EX

. R. A PP

. P

. 47.1.5

13

– 00253

– CR, __ S.W.3d

__ ,

__ , 2014 WL 1257150, at *11 (Tex. App.

— Corpus C hristi

Jan. 23, 2014 ) aff’d , No. PD

– 0306

– 14, 2014 WL 6734178 (Tex. Crim. App. Nov. 26, 2014)

reh’g granted , (Feb . 25, 2015) . In addition, t he court of criminal appeals affirmed our

decision , stating that “ the provisions in the Transportation Code do not, taken by

themselves, form a constitutionally valid alternative to the Fourt h Amendment warrant

requirement” and “a noncon sensual 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

requireme nt, violates the Fourth Amendment.” Villarreal

, __ S.W.3d

__ ,

__ , 2014 WL

6734178 , at * * 20

– 21

. 3

The State conceded to the trial court that there were no exigent circumstances and

did not argue that any other exceptions to the warrant req uirement applied i n this case. 4

The trial court concluded that Officer Boyer was required to obtain a warrant for the blood

draw absent exigent circumstances. Accordingly, because section 724.012 of the

transportation code does not by itself form a constitutionally recogn ized alternative to the

warrant requirement

, we conclude that the trial court did not abuse its discretion by

granting McClendon’s motion to suppress. See id. We overrule the State’s sole issue. 5

3 After affirming our decision, the Court of Criminal Appeals granted the State’s motion for rehearing. However, it has not vacated its decision affirming our ruling or withdrawn its opinion

.

4 Although the State argued to the trial court that Officer Boye r relied on the statute in good faith, it does not make this argument on appeal.

5 The State also argues that other exceptions to the warrant requirement apply s uch as the automobile exception and voluntary consent and waiver . The State asserts that we mu st consider other things in our analysis such as “the underlying expectation of privacy as a factor” and “the nature of the privacy interest in blood” that “will be sufficient to sustain the constitutionality of [mandatory blood draw statutes], especially the Texas statute, which is narrowly drawn to include only the most egregious offenders and situations.” However, although the State argued to the trial court that the McNeely decision is very narrow, the State did not make any of the above

- mentioned argu ments to the trial court . Accordingly, we may not reverse the trial court on any of these grounds. See State v. Rhinehart , 333 S.W.3d 154, 162 (Tex.6 I V

. C ONCLUSION
We affirm the trial court’s judgment.

/s/ Rogelio Valdez ROGELIO VALDEZ Chief Justice

Do not publish. T EX

. R. A PP

. P. 47.2(b)

.
Delivered and filed the 2nd day of Ju ly , 2015

.

Crim. App. 2011) (stating that the “ordinary rules of procedural default” apply to the “losing party” in trial court); Hailey v. State , 87 S.W.3d 118, 121

– 22 (Tex. Crim. App. 2002) (“It is well

- settled that . . . it violates ordinary notions of procedural default for a Court of Appeals to reverse a trial court’s decision on a legal theory not presented to the trial court by the complaining party.”) (quotations omitted); State v. Mercado

, 972 S.W.2d 75, 78 (Tex. Crim. App. 1998) (en banc) (“[I]n cases in which the State is the party appealing, the basic principle of appellate jurisprudence that points not argue d at trial are deemed to be waived applies equally to the State and the defense.”); s ee also Martinez v. State , 91 S.W.3d 331, 336 (Tex. Crim. App. 2002) (“And so it is that appellate courts may uphold a trial court’s ruling on any legal theory or basis ap plicable to the case, but usually may not reverse a trial court’s ruling on any theory or basis that might have been applicable to the case, but was not raised.”).