### 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. 03-14-00189- CR

F red Schneider, Appellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F WI LLIAM SO N COUNTY , 26TH JUDICI AL DISTRICT NO. 12- 2076 -K 26, H ONO RAB LE B ILLY RAY STUB B LEF IELD, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N
Following the denial of his motion to s u p p re ss evidenc e, a jury found appellant
Fr ed Schneider g uilty of third-deg ree felony driving while intox icated (DWI ). See Tex. Penal Code § 49.04 (listing elements of DW I ); id. § 49.09(b)( 2 ) (p ro v i d ing that DWI is third-deg ree felony if defe ndant had two prior convictions for enumer ated offe nses). The jury then assessed punishment
at four y ear s’ imprisonment and a $3,000 f ine and r ecommende d that the prison time be probate d. The trial court sentenc ed Schneider to four y ear s in prison, probate d for seven y ear s, and a fine. I n three points of err or, Schneider contends that the trial court err ed in deny ing his motion to suppress
t h e results of S chneide r’s blood specimen obtained without a warra nt, that the t rial court err ed b y deny ing his reque st for a jury instruction under Texas Code of Criminal Procedur e article 38.23, and that his conviction violates the p ro t ec tion ag ainst ex post fac to laws g uara nteed by article I , section 16 of the Texas Constit ution. We will ref orm the trial court’s judgme nt to corr ect a cler ical

err or and a ffirm the judg ment as modified.BACK GR OUND 1
On Dec ember 16, 2012, Schneider drank beer with a couple of friends at a restaur ant. As Schneider was driving home, he struck a vehicle parke d on the side of the street near his house. Schneider then continued driving home and enter ed his house, wher e he lived with his g irlfriend, Melissa Fe rre ll.

Detec tive J ason Wa l d o n of the Wil liamson County Sheriff’ s Offic e arr ived at the

scene of the collision at 10:05 p.m. afte r rec eiving a repor t of a hit and run. Detec tive Waldon spoke wi t h wi t nesses, took photogr aphs of the damag ed vehicle, and g ather ed piece s of g lass from t h e roadw ay . Deputy J ere my Hammett, also of the sheriff ’s office , joined Detec tiv e Waldon at the

scene at 10:10.
One of the witnesses told Detec tive Waldon wher e the hit-and-r un suspect’s vehicle had g one afte r the collision, and this led Detec tive Waldon to Schneider ’s house. Detec tive Waldon

arr ived at Schneider ’s house at around 10:14 and noticed that Schneider ’s vehicle had damag e that

was consistent with the damag e he had observe d on the parke d vehicle. Detec tive Waldon knocked

on the door of Schneider ’s house, and Fe rre ll ope ned the door. F err ell told De tective Waldon that Schneider was in the bathroom and had a g un. Detec tive Waldon backed out of the doorwa

y , and
Fe rre ll went back inside the house.

B e c a u s e o f th e p o s sibili ty that Schneider was arme d, Detec tive Waldon had the poli c e radio channe ls c losed so they could be use d in case of eme rg ency . Deputy Hammett responde d to

a call from Waldon, arr iving at Schneider ’s house in “[a] matter of a few seconds.” The two office rs

The fa cts rec ited here in are taken f rom the testimony

and exhibits prese nted at trial. 1 2then enter ed the house and instructed Schneider to come out of the back bedroom. Schneider came

out immediately and without a g un. Whil e Deputy Hammett provided cover , Detec t i v e W al d on place d Schneider in handcuf fs. Deputy Hammett t hen performed a protective sweep of the hous e
to chec k for t h re at s . Detec tive Waldon also suspected that family violence may have occur red beca use of a “conve rsation that was occur ring betwee n Mr. Schneider and Ms. Fe rre ll” and the fac t that Schneider had a cut acr oss the bridg e of his nose. Fe rre ll later told Detec tive Waldon that Schneider g ot the cut when he fell over some box es b ec ause, “due to his level of intox ication, he couldn’t kee p his balance .”

Detec tive Waldon moved outside with Schne ider and had a conver sation with him, which Detec tive Waldon rec orded. During this conver sation, Detec tive Waldon noticed signs that led hi m to believe that Schneider was intox icated, inc luding slurred speech, glassy ey es, unst eady
stance , letharg y , and the odor of alcohol. When Detec tive Waldon ex plained to Schneider that he had been called by “[t] he people whose truck was hit,” Schneider stated, “I hit that truck.” Detec tive Waldon then rea d Schneider his Miranda war nings and asked him how much he had t o d ri n k

. Schneider responde d that he had “[a] few beer s.” Anot her office r transporte d Schneider to the Wil liamson County jail, leaving Schneider ’s house at 10:58 p.m. Detec tive Waldon followed them and ar rived a t the jail at 11:19.
Once at the jail, Detec tive Waldon asked Schneider if he woul d b e wi l l i n g to take field sobriety tests, and Schneider ref used. At 11:45 p.m., Detec tive Waldon filled out a DI C-24 form, which war

ned Schneider that his driver’ s license would be suspended if he ref used to provide

a brea th or blood specimen. Schneider signe d the form and indicated that he was ref using to provide

3a s p e c im e n . D e te c ti v e Wa ld o n th e n a c c e s s e d Sc h n e id e r ’ s c r im in a l h is to r y a n d le a r n e d th a t Sc h n e id e r had prior DWI convictions. Be lieving that he was require d by statute to perf orm a “manda tory blood draw ,” Detec tive Waldon direc ted a phlebotomist at the jail to collect a sample of Schneider ’s blood
at 12:43 a.m. on Dec ember 17. See Tex. Transp. Code § 724.012(b) (“A peac e office r shall require the taking of a s p ec i m en o f the person’ s brea th or blood” if person is arr ested on suspicion of
DWI , suspect ref

uses to submit vo luntarily to taking of specimen, and other conditions are met). Schneider ’s blood was late r ana ly zed and re veale d an alc ohol blood concentr ation of .215. Schneider was char g ed with DWI and filed a motion to supp re s s the results of his blood analy sis. At a hear ing on his motion to suppress, Detec tive Waldon testified that he had Schneider ’s blood draw n without a war rant and without Schneider ’s consent beca use “[t] hat was the law a t t h at t i me.” He further ex plained, “For a felony DWI , we would just do a mandatory blood draw if the person ref

used.” Detec tive Waldon ag ree d that “the only leg al authority that [he] relied

on to draw [S chneide r’s] blood that night was the fac t that [he] thought there was a statute that said [he] could do it” and that he was not “re ly ing on any other leg al authority other than just that statute.”

Detec tive Waldon also testified that there was a prosec utor on duty “24/seve n” that he could have called but tha t he did not call a prosec utor beca use “[i] t w as mandatory blood dr aw. I t didn’t require any assistance from t h e DA ’s Offic e for that.” When asked how the DA’s office would have responde d if he had called and “aske d for them to contac t a judge and g et a war rant signe d that night,” Detec tive Waldon responded, “ I don’t believe that they would have done i t for

me beca use it wo u l d h av e been unnece ssary since it was a mandatory draw .” Detec tive Waldon testified that it would probably have ta ken a minimum of two hours to obtain a wa rra nt.

4Deputy Hammett testified that beca use of the alleg ation that Schneider had a g un, this

was not a ty

pical DWI case , stating that “this case was aty pical in the extreme” and “wa s about the
most extreme” DWI i n v es t i gat i o n he had experience d. He also testified that no mag istrate was available afte r hours at the time of t h e i n ci dent. I n addition, L y tza Rojas, a prosec utor with the Wil liamson County District Attorney ’s Offic e, testified that, at the time, her office ’s policy was not
to obtain war

rants for blood draw s in DWI case s “[i] f there wer e two confirme d misdemeanor DWI s, bring ing it up to a felony level.” Rojas fu rt her testified that if an officer had called her and asked for a war rant in a felony DWI case , she would have responde d, “[Y]ou don’t need a war rant, and I ’m
not g oing to wake up a judge for that.” Finally , Rojas testi fi ed t h at it could take any wher e from thirty minutes to an hour and a half to obtain a war rant and that there have b ee n t imes when she has attempted to c ontact a judg e in the middle of the nig ht and bee n unable to re ach one

.

The trial court orally announce d that it was deny ing Schneider ’s motion to suppress, and the trial proce eded. At the char g e confe renc e, Schneider reque sted a jury instruction pur suant
to article 38

. 2 3

. S

ee T ex . Code Crim. Proc. art. 38.23(a) (“I n any case wher e the leg al evidenc e raises a n issue here under, the jury shall be ins tructed that if it believes, or has a rea sonable doubt, that the evidenc e was obtained in violation of the provisions of this Article, then and in such event, the jury shall disreg ard any such evidenc e so obtained.”)

. Schneider arg ued, among other things, that the jury was entitled to decid e wh et h er exigent circ umstances exis ted that justified a war rantless blood draw. The trial court r efuse d to include an a rticle 38.23 instruction in the jury char g e. A f te r Sc h n e id e r w a s f

o u n d g u il ty , th e tr ia l c o u

r t s ig n e d a n o r d e r th a

t d e n ie d Sc h n e id e r ’ s motion to suppress and included finding s of fac t and conclusions of law. I n this order , the trial court found that Schneider ’s blood was not draw n until “thre e hours afte r the investiga tion beg an—eve n 5without attempts to obtain a war rant.” After summ ar i z i n g t est imony conce rning the proce ss of obtaining a war

rant in this case , the trial court stated, “The Court finds cre dible the uncontrove rted testimony of all the testify ing witnesses, including taking judicial notice from persona l experience , that this proce ss wo u l d h av e taken approximately two additional hours from the point in time the defe ndant ref

used to submit volun t ar i l y to a blood test.” The trial court additionally found the following :

Under these fac ts and circ umstances, the Court finds that an office r might rea sonably have believed that such additional delay would have undermined the eff icac y of the sear ch. As it wa s, due to the defe ndant’s leaving the scene , it was not until an hour afte r t he traffic acc ident t h at o ff icer s develope d probable cause to arr est defe ndant for DWI in the first instance, and even later lear ned of a potential felony -leve l DWI that prompted the manda te to obtain a blood sample.

After revie wing ca s e l aw conce rning war rantless blood draw s, the trial court conclude d the following :

T h e C ourt further conclude s that exigent circ umstances did exis t that could h av e cause d an office r to r easona bly believe that the eff

icac y of a blood specimen would b e u n d e r mi n e d b y f

u r th e r d e la y in o b ta in in g a w a

r r a n t. D e f e n d a n t’ s a c ti o n s in le a

v in g the s cene put into motion a leng thy time delay that cause d office rs t o diverg e from a ty pical routine DW I i n v estig ation. These fac tors included the nece ssity of going to a second location wher e they wer e fac ed with a potential family violence situation that nece ssitated a prote ctive swe ep and othe r protec tive protocols.

*** The Court finds and conclude s that t h e exigenc ies prese nt in this case are consistent with the ty

pe of time-delay exigenc ies discussed in [ Missouri v. McNee ly , 133 S. Ct. 1552 (2013)] that would justify a war rantless sear ch, such as the leng thy proce ss of obtaining a war rant and the specia l circ umstances that arose from the defe ndant’s leaving the scene along with the specia l circ umstances surrounding a felony level DWI

.
6The trial c ourt later sig ned a judg ment of convic tion, and this appeal followe d.

STANDARD OF REVIEW
We revie w a trial court’s ruling on a motion to suppress for abuse of discretion, using

a bifurca ted standard. Goodwin v. State , 376 S.W .3d 259, 266 (Tex. App.—Austin 2012, pet. ref ’d).
I n doing so, we view the evidenc e in the light most favor able to the trial court’s ruling

. Johnson

v. State , 414 S.W .3d 184, 192 (Tex. Crim. App. 2013). When the trial court makes express finding s of historical fac t, as i t did here , we aff ord almost total defe renc e to those finding s as long as they

are supported by the rec ord, and we also view t h e finding s in the light most favor able to the trial court’s ruling. State v. Granville , 423 S.W .3d 399, 404 (T ex . C ri m . App. 2014). I n addition, we
g ive almost total defe renc e to ruling s on application of the l aw t o q u es t ions of fac t and to mix ed questions of l aw and fac t, if resolution of thos e questions depends on an assessment of credibility and demea

nor of witnesses. Arguellez v. State , 409 S.W .3d 657, 662 (Tex. Crim. App. 2013). We revie w de novo pure questions of law and mix ed questions of law and fact t h at do not depend on

e v a lu a ti n g c r e d ib il it

y a n d d e me a n o r . M a r ti n e z v
. S ta te , 3 4 8 S. W. 3 d 9 1 9 , 9 2 3 ( T e x. Cr im

. A p p . 2 0 1 1 )

. We revie w de novo the leg al question of whether exigent circ umstances exi s t ed t h at justified a

war rantless arr est. See Va ltierra v. State , 310 S.W .3d 442, 447 (Tex. Crim. App. 2010) (“[W] e revie w a trial court’s application of the law of sear ch and seizure to the fac ts de novo .”);
Evans v. State , No. 14-13-00642- CR, 2015 WL 545702, at *6 (T ex. App.—Houston [14t h Dist.]
Fe b. 10, 2015, pet. filed) (mem. op., not desig nated fo r p u b l i cation) (“A lthough all finding s of historical fac t supported by the rec ord must be implied in favor of the trial court’s ruling that the

7blood draw should not be suppressed, whether those fac ts meet the leg al standard o f exigent

circ umstances is a le g al question that we r eview de novo.”).

DISCUSSIO N

Motion to suppress

I n his first point of err or, Schneider contends that the trial court err ed in deny ing his motion to suppress beca

use the war

rantless collection of his blood violated the Four th Amendment as interpr eted by

the United States Supreme Court in Missouri v. McNee ly

. The Four th Amendment provides that “[t] he rig ht of the people to be secur e in their per sons, houses, paper s, and ef fec ts, ag ainst unrea sonable sea rche s and seizures, shall not be violated.” U.S. Const. amend. I V. “The touchstone of the F ourth Amendment is re asonable ness.”
State v. Villarreal , 475 S.W .3d 784, 795 (Tex. Crim. App. 2014) (citing Riley v. Ca l i f o r n ia , 134 S

. C t

. 2 4 7 3 , 2482 (2014))

. The Supreme Court has held that a sear ch is rea sonable only if it i s co n d u cted pursuant to a war rant or if it falls within a rec og nized exception to the war ra n t require ment. See McNee ly , 133 S. Ct. at 1558 (“O ur case s have held that a war rantless sear ch of the
person is rea sonable only if it falls within a rec og nized exception.”). The drawi n g o f a p er s on’s blood is a s ea rch under the Four th Amendment. See Schme rber v. Calif ornia , 384 U.S. 757, 769 (1966) (desc ribing blood draw s as “sea rche s involving intru s i o n s b ey ond the body ’s surfa ce” );
State v. W

ebre , 347 S.W .3d 381, 385 (Tex. App.—Austin 2011, no pet.). I ndeed, as the S upreme Cou rt h as re cognized, “[s] uch an invasion of bodily integ rity implicates an individual’s ‘most

8persona l and deep- rooted expectations of privac y .’” McNee ly , 133 S. Ct. at 1558 (quoting W inston
v. Lee , 470 U.S. 753, 760 (1985)).

I f a defe ndant seeks to suppress evidenc e on the g round that it was co l l ec t ed in violation of the Four

th Amendment, the defe ndant bear s an i n i t i al burden to overc ome the presumption of proper police conduct. See Amador v. State , 221 S.W .3d 666, 672 (Tex. Crim. App. 2007); Martinez v. State , 220 S.W .3d 183, 186 (Tex. App.—Austin 2007, no pet.). I f the defe ndant
meets this burden by establishing that the sear ch or seizure occur red without a war

rant, the burden shifts to the State to pro v e t h at the sear ch or seizure was rea sonable under the totality of the circ umstances. See A mador , 221 S.W .3d at 672–73.

On e exception to the war rant require ment “applies when the exigenc ies of t h e situation make the needs of law enfor ceme nt so compelling that a war rantless sear ch is objectively

rea sonable under the Four th A mendment.” McNee ly , 133 S. Ct. at 1558 (interna l quota tion mar ks omitted). “[T] he need to preve nt the imminent destruction of evidenc e has long been rec og nized as

a sufficie nt justification for a war rantless sear ch. ” Kentucky v. King , 563 U.S. 452, 460 (2011) (interna l quotation marks omitted). Texas courts apply an objective standard in deter mining whether

an office r rea sonably relied on exigent circ umstances in making a war rantless sear ch based on the fac ts and circ umstances known to the office r at the time of the sear ch. See Colburn v. State , 966 S.W .2d 511, 519 (Tex. Cr i m . Ap p . 1 9 9 8); Evans , 2015 WL 545702, at *5; Stone v. State , 279 S.W .3d 688, 692 (Tex. App.—Amarillo 2006, pet. re f’d)

.

The Supreme Court has explained the exigenc y exception to the war rant require ment in drunk-dr iving case s. I n Schme rber v. Calif ornia , Schmerbe r had driven himself and a companion

9awa

y from a bowling alley afte r they had been drinking

. Schme rber , 384 U.S. a t 758 n.2. The c ar skidded and struck a tree , and both Schmerbe r and his companion wer e taken to a hospital for
tr e a tm e n t. I d

. A t th e h o s p it a l, a p o li c e o f f ic e r d ir e c te d a p h y s ic ia

n to c o ll e c t a s a

mp le o f Sc h me r

b e r ’ s blood without a warr ant and without Schmerbe r’s c onsent. Id. at 758. An ana ly sis of this sample indicated intoxi cation, and Schme rber objected to the a dmission of this evidenc e at his DWI trial. Id. at 759. The Supreme Court h eld that the war rantless collection of Schmerbe r’s blood was constitutional because the office r “mig ht r easona bly have believed that he wa s confr onted with an

emer g ency , in which the delay nece ssary to obtain a warra nt, under th e ci rc u mstances, threatene d the destruction of evidenc e.” Id. at 770 (interna l quotation marks omitted). The Court explained its decision as f

ollows:

We are told that the perc entag e of alcohol in the blood begin s t o diminis h shortly a f te r d r in k in g s to p s , a s th e b o d

y f u n c ti o n s to e li mi n a

te it f r o m th e s y s te m. Pa

r ti c u la r ly in a ca se such a s this, where time ha d to be taken to br ing the acc used t o a hospi tal and to investiga te the scene of the acci d en t , there was no time to seek out a m ag istrate and secur e a war rant. Given these specia l fac ts, we conclude t h at t h e attempt to se cure evidenc e of blood-alcohol content in this case was an appropr iate incident to petitioner’s a

rre st.

Id. at 770–71.
L ater , in Missouri v. McNeely , the S upreme Court considere d “whe ther the na tural metabolization of alcohol in the bloodstream pre sents a per se exigenc y that justifies a n exception
to the Four

th Amendment’s war

rant require ment for n o n c o n s e n s u a l b lo o d te s ti n g in all drunk-dr iving

case s.” McNee ly , 133 S. Ct. at 1556. The Court reje cted such a per se rule and explained that “the

10rea sonablene ss of a war rantless sear ch under the exigenc y e xc e ption to the war rant require ment must be evalua ted based on the totality of the circ umstances.” Id. at 1560. Howeve r, the Supreme Court did not overr

ule Schme rber

. I nstead, the Court explained that it was apply ing the same approa ch as it had applied in Schme rber : “[O]ur analy sis in Schme rber fits co m fortably within our case law apply ing the exigent circumstance s ex ce p t ion. I n finding the warrantless blood test rea sonable in Schme rber , we considere d all of t h e fa cts and circ umstances of the particula r case and car efully based our holding on those specific fac ts.” Id. The Court also noted that “the natura l dissipation of alcohol in the blood may

support a finding of exige ncy in a spec ific ca se.” Id. at 1563.
Her e, Schneider arg

ues that there wer e no exigent circ umstances j u s t i fy i n g a

war rantless blood draw

. Acc ording to Schneider , neither his collision with a parke d vehicle, nor his leaving the scene of the collision, nor the i n cident at his house involving the alleg ed wea pon signific antly delay ed the office rs’ investiga tion. Schneider points out that Detec tive Waldon arr ived
at the scene of the acc ident at 10:05 p.m. and Schneider was in handcuf fs befor e 10:30. Schneider al s o p o ints out that Detec tive Waldon never called any one to ask for help in obtaining a war rant despite the fa ct that other of fice rs wer e on-duty

and a pr osecutor w as on-c all at all times.
I t is true that a traff

ic acc ident alone does not const itute an exigenc y . See Evans , 2015 WL 545702, at *6. Howeve r, t he need t o investiga te a traff ic accident can co n t ri b u t e to the exigenc y of a situation. See Schme rber , 384 U.S. at 771 (conc luding that emer g ency exis ted in part beca use “time had to be taken

. . . t o i n v es t iga te the scene of the acc ident”). I n McNee ly , the Supreme Court re co gn i z ed that the dissipation of alcohol from the blood, when combined with

cause s of delay

prese nt in a particula

r ca se, could g ive rise to exige nt circumstanc es:

11Whil e experts c an work backw ards from the BA C at the time the sample was taken

to determine the BA C at the t ime of t he allege d offe nse, l ong er intervals may raise q u e s ti o n s a b o u t th e a c c u

r a c y o f th e c a lc u la

ti o n . F o r th a

t r e a s o n , e xig e n

t c ir c u ms ta n c e s justify in g a wa rr antl ess blood sample may arise in the reg ular course of law enfor ceme nt due to delay s from the wa rra nt application proc ess.

McNee ly , 133 S. Ct . at 1563.

Considering the totality of the ci rcumstanc es and viewing the specific fac ts of this

case in the l ight most favor able to the t rial court’s ruling , we conclude that exigent circumstance s exis ted that c o u ld h ave cause d Detec tive Waldon to rea sonably believe that the further delay require d
to obtain a sear ch war

rant would jeopar dize the eff icac y of the evidenc e of Schneider ’s blood alcohol
content. Although Schneider was place d under arr est less than an hour afte r Detec tive Waldon

arr ived at the scene of the acc ident, Schneider ’s collision with a parke d vehicle and his de cision to flee the s cene set in motion a chain of events that signific antly delay ed W aldon’s abilit y to obtain

a b lo o d s p e c im e n . B e c a

u s e o f th e c o n f

u s io n c a u s e d b y th e h it a

n d r u n a n d th e in c id e n

t a t Sc h n e id e r ’ s house, Detec tive Waldon had to sp en d extra time investiga ting the case and deter mining whether Schneider had in fac t committed a cri m e. E v en without obtaining a war rant, Schneider ’s blood

was not c ollected until almost three hours had passed since the ac cident. Moreove r, we g ive g rea t defe renc e to the trial court’s fac tual finding that obtaining a war rant could have taken an additional
two hours. See id. (noting that “the natura l dissipation of alcohol in the blood may support a finding of exige ncy

in a spec ific ca se, as it did in Schme rber ”). This was not a ty

pical DWI case . This case involved a hit and run, a lleg ations that Schneider was arme d, possible domestic abuse, and an uncer t ai n wa rra nt proce ss. Ba sed on the

12rec ord befor e us, we cannot conclude that the trial court abused its discretion by deny ing Schneider ’s

motion to s uppress. Acc ording ly , we ove rrule Schne ider’s f irst point of error

. 2
Jury charge
I n his second point of err or, Schneider contends that the trial court err ed by reje cting his proposed jury

instruction under a

rticle 38.23. Specifica lly , Schneider complains that “the jury

was not instructed that it co u ld disreg ard the blood alcohol evidenc e in this case if it deter mined Appellant’s blood was draw n in violation of the United States Constit ution or the laws of the State of Texas.”
We r eview claims of jury char g e err or using a two-prong ed test. See Kuhn v. State , 393 S.W .3d 519, 524 (Tex. App.—Austin 2013, pet. ref ’d). We first deter

mine whether char g e err or exis ts. Id. I f there is err or, we next evalua te the harm cause d by the err or. Id. A defe ndant is only entitled to a jur y i n s t ru cti on under article 38.23 if three require ments are met: “(1) The evidenc e hear d by the jury must raise an issue of fac t; (2) T h e ev i d en ce on that fac t must be aff irmatively contested; and (3) That contested fac tual issue must be materia l to the lawfulne ss of the challeng ed conduct in obtaining the evidenc e.” Madden v. State , 242 S.W .3d 504, 510 (Tex. Crim. App. 2007).

I n his brief, Schne ider states the following :

This case is distinguishable from State v. Villarreal , 475 S.W .3d 784 (Tex. Cr i m . App. 2 2014), State v. Hill , No. 03-13-00834- CR, 2016 WL 69 0 7 3 8 (Tex. App.—Austin Fe b. 17, 2016, pet. filed), and State v. Molden , No. 03-14-00166- CR, 2016 WL 690795 (Tex. App.—Austin Fe b. 17, 2016, pet. filed), beca use, in those case s, the courts did not have to decide whether exigent circ umstances bey ond the natura l dissipation of alcohol in the blood justified a war rantless blood draw

. This case is also distinguishable from Roop v. State , No. 03-13-00141- CR, 2016 WL 690755 (Tex. A pp.—Austin F eb. 17, 2016, pet. filed), beca use, in Roop , the suspect did not flee the scene of the t raffic acc ident and neither the acc ident nor any other unusual circ umstances cause d any signific ant delay

in obtaining a

sample of the suspe ct’s blood. See id. at *5.

13As discussed extensiv el y ab o ve, Appellant’s blood was draw n without a war rant and the State was unable to show exigent circ umstances which would justify the war rantless seizure of Appe llant’s blood. There fore , evidenc e of his blood alcohol content should have been excluded from evidenc e, but if allowe d , the jury should have ha d the opportunity

to follow the law a

nd disreg ard tha t evidence

. (citation omitted). We conclude that Schneider has not identified an issue of materia l fac t raised by conflicting evidence hear d by the jury

. His arg ument appea rs to assume that the constitutionalit y of Schnei d er ’s b l ood draw was a question of fac t to be decide d by the jury

. Howeve r, whether particula r fac ts constitute exigent circ u m s t ance s that justify a war rantless sear ch is a question of law. See Valtierra , 310 S.W .3d at 447; Evans , 2015 WL 545702, at *6; see also Robinson v. State , 377 S.W .3d 712, 719 (Tex. Crim. App. 2012) (“Where the issue raised by the evidenc e at trial does

not involve controve rted historical fac ts, but only the proper application of the law t o u n d i s puted
f a c ts , th a t is s u e is p r o p e r ly le f

t to th e d e te r

mi n a ti o n o f th e tr ia l c o u

r t. ” )

. T h e r e f

o r e , h e w a s n o t e n ti tl e d
to a jury instruction under article 38.23. Acc ording ly , we overr ule Schneider ’s second point of err or.
Ex post facto law

I n his th i rd p o i n t of err or, Schneider contends that “his conviction violates his protec tion ag ainst the imposit ion of Ex Post Facto L aws wh ere the State was allowed to enhanc e Appellant’s punishment with convictions not previously available for such.” See Tex. Const. art. 1, § 16 (“N o . . . ex post fac to law

. . . shall be made.” ). Acc ording to Schneider , at the time he pleade d guilty to char g es of DWI “in 1986 and 1989, the law in place instructed that if a p er s o n wa s n o t

arr ested for the offe nse of driving while intox icated for the superseding ten y ear s, any previous conviction for driving while intox icated could not b e u s ed ag ainst him.” Now, howeve r, this

14ten-y ear limit has been repe aled, and Schneider ’s previous convictions wer e u s ed t o en hance his

offe nse eve n though the prior convic tions were mor e than ten y ear s old.

This Court has alre ady square ly rejected Schneider ’s arg ument. As this Court explained in Saucedo v . State :

We hold that the ten-y ear time limit ation on the use of prior DWI convictions found in [t he prede cessor of Texas Penal Code section 49.09] was not an expli cit g uara ntee that those convictions could not be used in the future, but only a restric tion on what p r io r c o n v ic ti o n s c o u ld b e u s e d to e nh a n c e a D WI o f

f e n s e a t th a t ti me . T h e r e f

o r e , b y removing all time limit ations on the use of prior DWI convictions to enhanc e curr ent DWI char g es, the 2005 chang es to the DWI enhanc em en t statute did not incre ase appellant’ s punishment for the prior c onvictions and is not an ex post facto law.

Saucedo v. State , No. 03-06-00305- CR , 2 0 0 7 WL 1573948, at *4 (Tex. App.—Austin May 30, 2007,

no pet.) (mem. op., not desig nated for publicati o n ); see Bailey v. State , No. 03-09-00276- CR,
2010 WL 2428085, at *5 (Tex. A pp.—Austin June 18, 2010, pet. ref ’d) (mem. op., not desig nated for publication) (“[C] ourts have held that for purposes of enhanc ement, the use of prior convictions that could not have been used at the time they wer e orig inally com m i t t ed is not a violation of the prohibition ag ainst ex post fac to laws.”) ; Castil lo v. State , No. 03-07-00546- CR, 2008 WL 3540063,

a t * 1 ( T e x. A

p p . — Au s ti n Au g . 1 4 , 2 0 0 8 , n o p e t. ) ( me m. o p . , n o t d e s ig n a te d f o r p u b li c a ti o n ) ( r e je c ti n g appellant’ s arg ument “that allowing the prior convictions to be used fo r enhanc ement purposes under subsection 49.09(e) of the penal code, which was amended in 2001 to allow, under cer tain

c o n d it io n s , th e u s e o f p r io r c o n v ic ti o n s o ld e r th a n te n y e a r s , w o u ld v io la

te th e e x p o s t f

a c to p r o v is io n s of the state and fede ral constitutions”) (footnote omitted); Townsend v. State , No. 03-05-00766- CR,
2007 WL 2141265, at *1 (Te x . App.—Austin J uly 26, 2007, pet. re f’d) (mem. op., not desig nated for publication) (same) ; see also Van Duren v. State , No. 01-13-00103- CR, 2014 WL 5500482, at *3
15(Tex. App.—Houston [1st Dist.] Oct. 30, 2014, pet. ref ’d) (mem. op., not desig nated for publication) (“We ag ree with the majority of Texas courts of appea ls that have addre ssed the issue and conclude d that the 2005 amendment to section 49.09 is not an ex post fa ct o l aw . ”) (collec ting case s).
Acc ording ly , we ove rrule Schne ider’s third point of e rror .

Clerical error in t

he judgm ent Finally , we note that the trial court’s judgme n t contains contra dictory information

co n cer ning whether Schneider pleade d g uilty to this offe nse. Howeve r, the rec ord sho ws t h at Schneider pleade d not g uilty and the ca s e wa s t ri ed to a jury

. Moreove r, nothing in the rec ord
sug g ests that Schneider pleade d g uilty , and t h e t ri al court’s cer tification of Schneider ’s rig ht of
appea l states that t h i s wa s n ot a plea barg ain case . This Court has authority to modify incorre ct judgme nts when the nece ssary information is available to do so. See T ex. R. App. P. 43.2(b); Bigley v. State , 865 S.W .2d 26, 27–28 (Tex. Crim. App. 1993). Acc ording ly , even though neither party raised the issue on appea l, we ref orm the judgme nt by striking any ref ere nce to a plea barg ain and any statement sug g esting that Schneider pleade d g uilty

. I n addition, we note that the judgme nt improperly includes a deadly -we apon finding

. The rec ord indicates that the t ri al court g rante d Schneider ’s motion for a direc ted verdic t on the deadly -we apon issue and no d ea d l y -we apon instructions wer e submitt ed to the jury

. There fore , we further ref orm the judgme nt to eliminate the deadly -we apon finding

.

CONCLUSION

Having overr

uled eac h of Schneider ’s points of er ro r, we aff irm the trial court’s judgme nt as modified.
16__________________________________________ Scott K. Field, Just ice
Be fore Chief J ustice Rose, Jus tices Goodwin a nd Field Modified and, a s Modified, Aff irmed Filed: Apr il 6, 2016 Do Not Publish

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