IN THE COURT

OF CRIMINAL APPEALS OF TEXAS

THE STATE OF TEXAS, § 

APPELLANT § 

 § 

V. § NOS. PD-0313-15

 § & PD-0314-15

WALTER CHIDYAUSIKU, § 

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-0313-15 & PD-0314-15

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 4/8/2015 2:09:29 PM

Accepted 4/15/2015 11:40:36 AM

ABEL ACOSTA

CLERK
IDENTITY OF THE PARTIES AND COUNSEL

The Hon. Sharen Wilson, Tarrant County Criminal District Attorney, 

represents the State of Texas in this appeal. Additionally, representing the 

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

Attorney and Hon. Debra Windsor, Post-Conviction Chief. At trial, the Hon. 

Dawn Ferguson, Hon. Brock Groom, and the Hon. Mark Thielman

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. 

The Hon. Lisa C. McMinn is the State’s Prosecuting Attorney. Mail 

for the Office of the State Prosecuting Attorney, located in the Price Daniel 

Sr. Building, may be sent to P.O. Box 13046, Austin, Texas, 78711. 

Appellee, Defendant below, is Walter Tendai Chidyausiku. Hon. Wes 

Ball, 4025 Woodland Park Boulevard, Suite 100, Arlington, Texas, 76013,

represented Appellee at trial and now on appeal. 

The State tried Appellee’s cases in the Criminal District Court No. 4 

of Tarrant County, Texas, also located in the Tim Curry Criminal Justice 

Center. The Hon. Mike Thomas presided over the cases. 

ii
SUBJECT INDEX

SUBJECT INDEX ...................................................................................... iii

INDEX OF AUTHORITIES.......................................................................... v

STATEMENT REGARDING ORAL ARGUMENT........................................1

STATEMENT OF THE CASE .....................................................................2

STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE .............2

STATEMENT OF FACTS ...........................................................................3

QUESTIONS PRESENTED FOR REVIEW.................................................4

FIRST QUESTION FOR REVIEW ..............................................................4

Does a warrantless, nonconsensual blood draw 

conducted pursuant to TEX. TRANSP. CODE 

§724.012(b) violate the Fourth Amendment?

(2RR; 3RR at 4–6)

SECOND QUESTION FOR REVIEW .........................................................4

Are Fourth Amendment warrant-preference 

exceptions the sole measure of Fourth Amendment 

reasonableness in warrantless scenarios? 

(2RR; 3RR at 4–6)

THIRD QUESTION FOR REVIEW..............................................................4

Do exclusionary rule principles mandate 

suppression of blood evidence seized via a 

warrantless, nonconsensual, valid-at-the-time 

mandatory blood draw? 

(2RR; 3RR at 4–6)

ARGUMENT AND AUTHORITIES..............................................................4

iii
I. Valid, compelled statutory blood draw ...............................................6

A. Codification of Fourth Amendment principles............................6

B. Special-needs framework adds to the reasonableness 

calculation ................................................................................8

C. Erroneous Consideration of the “Less Intrusive Means” 

Test ..........................................................................................9

II. Implied-Consent Draws Are Reasonable .........................................10

III. Exclusionary rule inapplicable and not invoked................................12

CONCLUSION AND PRAYER..................................................................15

CERTIFICATE OF COMPLIANCE............................................................16

CERTIFICATE OF SERVICE....................................................................16

COURT OF APPEALS’ OPINION ...............................................APPENDIX

iv
INDEX OF AUTHORITIES

Cases

Breithaupt v. Abram,

352 U.S. 432 (1957) ........................................................................12

Davis v. United States,

___ U.S. ___, 131 S. Ct. 2419 (2011)..............................................13

Douds v. State,

434 S.W.3d 842 (Tex. App.—Houston [14th Dist.] 2014, pet. granted)

......................................................................................................5, 6

Heien v. North Carolina,

135 S.Ct. 530 (2014) .................................................................14, 15

Hulit v. State,

982 S.W.2d 431 (Tex. Crim. App. 1998) ....................................10, 11

Illinois v. Krull,

480 U.S. 342 (1987) ........................................................................13

Maryland v. King,

569 U.S. ___, 133 S.Ct. 1958 (2013)...............................................11

McGee v. State,

105 S.W.3d 609 (Tex. Crim. App. 2003) ..........................................11

Michigan Dept. of State Police v. Sitz,

496 U.S. 444 (1990) ........................................................................11

Michigan v. DeFillippo,

443 U.S. 31 (1979) ..........................................................................14

Miles v. State,

241 S.W.3d 28 (Tex. Crim. App. 2007)..............................................6

v
Missouri v. McNeely,

569 U.S. ___, 133 S.Ct. 1552 (2013)........................................passim

Segundo v. State,

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

cert. denied, 558 U.S. 828 (2009)....................................................11

Skinner v. Railway Labor Executives' Ass'n,

489 U.S. 602 (1989) ......................................................................8, 9

State v. Villarreal,

PD-0306-14, 2014 WL 6734178 (Tex. Crim. App. 2014)...........passim

Tharp v. State,

935 S.W.2d 157 (Tex. Crim. App. 1996) ............................................9

Vernonia School Dist. 47J v. Acton,

515 U.S. 646 (1995) ........................................................................10

Weems v. State,

434 S.W.3d 655 (Tex. App.—San Antonio 2014, pet. granted)......5, 6

Welsh v. Wisconsin,

466 U.S. 740 (1984) ..........................................................................7

Statutes

TEX. CODE CRIM. PROC. art. 14.04................................................................7

TEX. CODE CRIM. PROC. art. 18.16................................................................6

TEX. CODE CRIM. PROC. art. 38.23........................................................13, 14

TEX. PENAL CODE §49.04.............................................................................6

TEX. PENAL CODE §49.07.............................................................................2

TEX. PENAL CODE §49.08.............................................................................2

vi
TEX. PENAL CODE §1.07(a)(30) ..................................................................13

TEX. TRANSP. CODE §524.012(b)..................................................................9

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

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

Rules

TEX. R. APP. P. 66.3 ....................................................................................5

TEX. R. APP. P. 9.4 ....................................................................................16

vii
IN THE COURT

OF CRIMINAL APPEALS OF TEXAS

THE STATE OF TEXAS, § 

APPELLANT § 

§ 

V. § NOS. PD-0313-15

§ & PD-0314-15

WALTER CHIDYAUSIKU, § 

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 these causes in accordance with the rules of 

appellate procedure.

STATEMENT REGARDING ORAL ARGUMENT

The reasonableness of statutory mandatory blood draws merits 

argument. Likewise, argument should be granted to discuss the 

inapplicability of the exclusionary rule to cases where, at the time of the 

seizure, the officer’s conduct conformed to ubiquitous, nationallyrecognized criteria that did not violate constitutional protections. 

1
STATEMENT OF THE CASE

Appellant premised a pretrial suppression claim on the Supreme 

Court’s decision in Missouri v. McNeely, 569 U.S. ___, 133 S.Ct. 1552 

(2013). (2RR). The trial judge rejected the defense argument attacking the 

validity of blood seized pursuant to the Texas implied-consent statute. 

(2RR; 3RR at 4–6). Appellant pled guilty to intoxication assault and 

intoxication manslaughter, then asked a jury to assess punishment. (4RR

at 10-12; 5RR; 6RR). The jury sentenced Appellant to penitentiary time. 

(1CR at 170,196–96 [1264242R]; 1CR at 177–79 [1264243R]; 6RR at 68). 

TEX. PENAL CODE §§49.07, 49.08; TEX. TRANSP. CODE §724.012(b).

STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE

The Fort Worth Court of Appeals reversed the trial court in a 

published opinion authored by Justice Lee Ann Dauphinot. Justice Lee 

Gabriel concurred, with Chief Justice Terri Livingston joining that opinion. 

Chidyausiku v. State, 02-14-00078-CR, 2015 WL 737391 (Tex. App.—Fort 

Worth Feb. 19, 2015, no. pet. h.). Rehearing was not sought. The State 

timely files this petition, following one extension.

2
STATEMENT OF FACTS

Appellant was convicted of intoxication assault and intoxication 

manslaughter after he sped, ran a stop sign, and plowed into a mother 

driving her ten-year-old son to football practice. (4RR at 23–57; 5RR at 

15–72,95–109,138–54,187–190). TEX. PENAL CODE §§49.07, 49.08. The 

woman suffered serious injuries requiring long-term medical intervention 

and hospitalization; worse, her young son died. (4RR at 27–33; 5RR at 

61,78,155,172). Arlington Police officers seized Appellant’s blood pursuant 

to the mandatory blood draw provisions contained in Texas’ impliedconsent law; his BAC measured 0.12. TEX. TRANSP. CODE §724.012(b). 

(5RR at 6–8,67–77). Appellant primarily relied on the McNeely decision to 

complain of the trial court’s pretrial denial of his motion to suppress. 

Missouri v. McNeely, 569 U.S. ___, 133 S.Ct. 1552 (2013). (2RR). 

Appellant also complained about the status of the person who conducted 

the hospital-based blood draw, an issue the lower court did not reach. 

3
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?

(2RR; 3RR at 4–6)

SECOND QUESTION FOR REVIEW

Are Fourth Amendment warrant-preference exceptions 

the sole measure of Fourth Amendment reasonableness 

in warrantless scenarios?

(2RR; 3RR at 4–6)

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? 

(2RR; 3RR at 4–6)

ARGUMENT AND AUTHORITIES

This Court is in the midst of deciding 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 pending 

before this Court at that time, the case is in flux since the Court recently 

granted rehearing. State v. Villarreal, PD-0306-14, 2014 WL 6734178 

4
(Tex. Crim. App. 2014) (reh’g granted Feb. 25, 2015). Per the Court’s 

docket, Villarreal was submitted again on March 18, 2015, the same day 

argument was heard in another McNeely case. See Douds v. State, 434 

S.W.3d 842 (Tex. App.—Houston [14th Dist.] 2014, pet. granted Sep. 17, 

2014). 

The State’s petition focuses on two aspects of any McNeely-related 

consequences: the validity of a statutorily compelled draw and the 

invalidity of the exclusionary rule. Note that Villarreal only went to the 

merits of the mandatory-draw issue, not addressing the applicability of the 

exclusionary rule. Villarreal, 2014 WL 6734178. However, the lower courts 

in Weems and Douds addressed the exclusionary rule’s applicability.

Weems v. State, 434 S.W.3d 655, 666–67 (Tex. App.—San Antonio 2014, 

pet. granted); Douds, 434 S.W.3d at 861. In other words, this Court has 

already granted review on the issues presented herein. 

Review should be granted because this case involves important 

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

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

Supreme Court decision that does not undermine the validity of the 

country’s implied-consent statutes. TEX. R. APP. P. 66.3(a)(b)(c)(d)(f). 

5
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, Smith, McGruder, Douds, Weems, Holidy, and 

Reeder. Here, the officer reasonably relied on an existing, ubiquitous 

statute to obtain a compelled blood draw. The seizure occurred when the 

officer—at the time of the offense—possessed probable cause that 

Appellant’s impaired and intoxicated conduct constituted felony DWI. TEX.

PENAL CODE §§49.04, 49.09; TEX. TRANSP. CODE §724.012(b). 

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 

6
involving the 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 the 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. 

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 

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

7
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). Probable cause, 

along with the exigencies based upon the gravity-of-the-crime and the 

dissipation-of-alcohol, create a framework that provides a neutral set of 

guidelines authorizing a narrowly defined seizure from an already-incustody arrestee. These provisions 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 

also implicates administrative license revocation [ALR] procedures, a 

separate regulatory process that focuses on protecting the traveling public 

8
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. 

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 

9
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. See McNeely, 

133 S.Ct. at 1561–63. 

The Supreme Court often rejects arguments applying less-intrusivealternative-practices attacks in Fourth Amendment cases. Vernonia School 

Dist. 47J v. Acton, 515 U.S. 646, 663–64 (1995) (upholding warrantless, 

random urine screening of athletes and rejecting an argument for drug 

testing based upon suspicion of drug use); Skinner, 489 U.S. at 629 n.9 

(upholding random, suspicionless drug screening of railway employees 

following safety breaches and rejecting arguments voicing less drastic and 

equally effective means). One footnote in Skinner flatly rejects 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. Villarreal mistakenly applied this 

discounted, post-hoc consideration on original submission.

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. 

10
1998). Discernment of what is “reasonable” requires courts to consider the 

balance between an individual’s privacy and the 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). 

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 conducted the 

reasonableness balancing approach to 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. 

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.

11
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 all side’s needs are weighed. Indeed, Fourth 

Amendment reasonableness underpins the statute. The well-known 

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 2012 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 objective reasonableness by relying on (1) a statute, later 

declared unconstitutional, or (2) binding judicial precedent, subsequently 

12
overruled. Illinois v. Krull, 480 U.S. 340, 349–57 (1987) (statutes); Davis v. 

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

Under state law, the Texas exclusionary rule is not invoked 

because—at the time of the offense—no violation occurred. The State 

recognizes that article 38.23(b)—Texas’ limited good faith exception—

requires a warrant. TEX. CODE CRIM. PROC. §38.23(b). Notwithstanding, 

invocation of exclusionary rule principles relies on article 38.23(a). That 

subsection’s plain language requires a violation for exclusion to be 

triggered. When Appellant’s blood was drawn, no one credibly questioned 

the validity of the officer’s statutory authority. In other words, 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, 

these circumstances do not invoke exclusion. 

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 

13
investigatory stop where the officer misunderstood the traffic code provision 

he relied on to support the stop. See Heien v. North Carolina, 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 which had been briefly considered in 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—at the 

time of the arrest—complied with mandatory, settled law. 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 

14
officer was reasonable, Fourth Amendment cases do not mandate the 

remedy of exclusion. See Heien, 135 S.Ct. at 539. 

CONCLUSION AND PRAYER

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

should be reversed, remanding the causes to address the remaining nonMcNeely claim. Ultimately, these convictions 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

15
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 4500 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 petition for discretionary review has been eserved to opposing counsel, the Hon. Wes Ball, 4025 Woodland Park 

Boulevard, Suite 100, Arlington, Texas, 76013, at

WBnotices@ballhase.com on this, the 8th day of April 2015.

/s/ Tanya S. Dohoney 

TANYA S. DOHONEY

H:\DOHONEY.D11\PDRS\031815 chidyausiku pdr post-villarreal-reh hyperlinked.docx

16
APPENDIX

A
Only the Westlaw citation is currently available.

NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED,

IT IS SUBJECT TO REVISION OR WITHDRAWAL.

OPINION

Court of Appeals of Texas,

Fort Worth.

Walter Tendai Chidyausiku, Appellant

v.

The State of Texas, State

NO. 02–14–00077–CR, NO. 02–14–00078–CR

DELIVERED: February 19, 2015

Background: After his motion to suppress evidence was denied, defendant pled guilty in the Criminal District Court No. 4, Tarrant County, Michael

R. Thomas, J., to intoxication assault and intoxication manslaughter. Defendant appealed.

Holdings: The Court of Appeals, Lee Ann

Dauphinot, J., held that:

(1) natural dissipation of alcohol in defendant's

bloodstream following a fatal car accident did not

constitute an exigent circumstance that justified the

warrantless blood draw, and

(2) error in denying defendant's motion to suppress

was not harmless.

Reversed and remanded.

Gabriel, J., filed concurring opinion in which

Livingston, C.J., joined.

West Headnotes

[1] Criminal Law 110 1139

110 Criminal Law

110XXIV Review

110XXIV(L) Scope of Review in General

110XXIV(L)13 Review De Novo

110k1139 k. In general. Most Cited

Cases

Criminal Law 110 1158.12

110 Criminal Law

110XXIV Review

110XXIV(O) Questions of Fact and Findings

110k1158.8 Evidence

110k1158.12 k. Evidence wrongfully

obtained. Most Cited Cases

The appellate court reviews a trial court's ruling on a motion to suppress evidence under a bifurcated standard of review, giving almost total deference to a trial court's rulings on questions of historical fact and application-of-law-to-fact questions

that turn on an evaluation of credibility and demeanor, but reviewing de novo applicationof-law-to-fact questions that do not turn on credibility and demeanor.

[2] Automobiles 48A 414

48A Automobiles

48AIX Evidence of Sobriety Tests

48Ak414 k. Right to take sample or conduct

test; initiating procedure. Most Cited Cases

The natural dissipation of alcohol in defendant's bloodstream following a fatal car accident did

not constitute an exigent circumstance that justified

the warrantless blood draw used to determine defendant's blood alcohol content, especially in light

of the local protocol and procedure for obtaining

search warrants efficiently and without undue

delay. U.S. Const. Amend. 4.

[3] Searches And Seizures 349 24

349 Searches and Seizures

349I In General

349k24 k. Necessity of and preference for

warrant, and exceptions in general. Most Cited

Page 1

--- S.W.3d ----, 2015 WL 737391 (Tex.App.-Fort Worth)

(Cite as: 2015 WL 737391 (Tex.App.-Fort Worth))

© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
Cases

Searches conducted outside the judicial process, without prior approval by judge or magistrate,

are per se unreasonable, subject only to a few specifically established and well delineated exceptions.

U.S. Const. Amend. 4.

[4] Automobiles 48A 414

48A Automobiles

48AIX Evidence of Sobriety Tests

48Ak414 k. Right to take sample or conduct

test; initiating procedure. Most Cited Cases

A nonconsensual search of a driving while intoxicated (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 requirement, violates the right of protection against unreasonable

searches and seizures. U.S. Const. Amend. 4.

[5] Searches And Seizures 349 24

349 Searches and Seizures

349I In General

349k24 k. Necessity of and preference for

warrant, and exceptions in general. Most Cited

Cases

To be constitutionally permissible, a warrantless search must fall within one of the well-accepted exceptions to the warrant requirement. U.S.

Const. Amend. 4.

[6] Automobiles 48A 414

48A Automobiles

48AIX Evidence of Sobriety Tests

48Ak414 k. Right to take sample or conduct

test; initiating procedure. Most Cited Cases

The natural dissipation of alcohol in the

driver's bloodstream does not constitute an exigency in every case sufficient to justify conducting

a blood test without a warrant. U.S. Const. Amend.

4.

[7] Criminal Law 110 1162

110 Criminal Law

110XXIV Review

110XXIV(Q) Harmless and Reversible Error

110k1162 k. Prejudice to rights of party

as ground of review. Most Cited Cases

If the appellate record in a criminal case reveals constitutional error that is subject to harmless

error review, the court of appeals must reverse a

judgment of conviction or punishment unless the

court determines beyond a reasonable doubt that the

error did not contribute to the conviction or punishment.

[8] Criminal Law 110 1169.1(8)

110 Criminal Law

110XXIV Review

110XXIV(Q) Harmless and Reversible Error

110k1169 Admission of Evidence

110k1169.1 In General

110k1169.1(8) k. Evidence wrongfully obtained. Most Cited Cases

Error in denying defendant's motion to suppress results of blood test that was performed in violation of his right of protection against unreasonable searches and seizures was not harmless, in prosecution for intoxication assault and intoxication

manslaughter; Court of Appeals could not say that

the denial of defendant's motion to suppress the results of the blood test did not contribute to his decision to enter a guilty plea. U.S. Const. Amend. 4.

FROM CRIMINAL DISTRICT COURT NO. 4 OF

TARRANT COUNTY, TRIAL COURT NOS.

1264242R, 1264243R, MICHAEL R. THOMAS,

TRIAL COURT JUDGEWes Ball, Arlington, TX,

for Appellant.

Sharen Wilson, Criminal District Attorney; Debra

A. Windsor, Chief of the Post-Conviction Division;

Tanya S. Dohoney, Dawn Ferguson, Assistant

Criminal District Attorneys for Tarrant County,

Fort Worth, TX, for State.

PANEL: LIVINGSTON, C.J.; DAUPHINOT and

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GABRIEL, JJ.

OPINION

LEE ANN DAUPHINOT, JUSTICE

*1 After the denial of his motions to suppress,

Appellant Walter Tendai Chidyausiku pled guilty to

intoxication assault and intoxication manslaughter,

charged in separate indictments, reserving his right

to appeal the denial of his motions to suppress. He

pled “not true” to the deadly-weapon allegation in

each case. A jury convicted him as instructed to do

by the trial court, found the deadly-weapon allegation in each case true, and assessed his punishment

at three years' confinement for his conviction of intoxication assault and ten years' confinement for his

conviction of intoxication manslaughter. The trial

court sentenced him accordingly, with the sentences

to run concurrently. FN1

FN1. See Tex.Code Crim. Proc. art.

42.08(a) (West Supp. 2014).

In two points, Appellant challenges the trial

court's denial of his motions to suppress the evidence obtained from the warrantless, mandatory, and

involuntary blood draw. Because the trial court reversibly erred by denying his motion to suppress in

each case,FN2 we reverse the trial court's judgments and remand both causes to the trial court for

a new trial or other proceedings consistent with this

opinion.

FN2. See State v. Villarreal, No.

PD–0306–14, –––S.W.3d ––––, ––––,

2014 WL 6734178, at *20 (Tex.Crim.App.

Nov. 26, 2014) (holding that implied consent statutes, “taken by themselves, [do

not] form a constitutionally valid alternative to the Fourth Amendment warrant requirement”).

Brief Facts

Appellant was involved in a car wreck at a

four-way stop intersection in Arlington, Texas. Appellant's automobile approached the intersection at

a fast speed and then failed to stop, striking the

vehicle operated by Tina R. As a result of the collision, Tina suffered severe bodily injuries causing

her to be hospitalized for six weeks. Additionally,

the wreck resulted in the death of Tina's tenyear-old son.

The City of Arlington Fire Department and the

DWI unit of the City of Arlington Police Department responded to the wreck. Officer Brian Martin

spoke with Appellant when he arrived on the scene

and noticed that Appellant had been crying and was

a bit emotional. Appellant admitted to having had

two alcoholic drinks at a bar after work before the

collision occurred. Appellant also told Officer Martin that he had been trying to rinse his mouth with

mouthwash just before the collision to mask the

smell of cigarette smoke, and may have even swallowed some mouthwash, because he was on his way

to meet his son.

Officer Martin directed Appellant to perform

field sobriety tests because Appellant showed signs

of impairment such as poor balance, bloodshot and

glassy eyes, and the smell of alcohol from his

mouth. When asked about the specific results of the

tests, Officer Martin testified that Appellant had

scored six of six points on the horizontalgaze-nystagmus test and four of eight on the walkand-turn test, failing both, but that he had passed

the final test by scoring zero on the one-leg stand.

As a result of those tests, Officer Martin placed

Appellant under arrest for driving while intoxicated. Appellant was then transported to the Medical

Center of Arlington (MCA), where he was asked to

give a blood sample. He refused, so blood-draw

technician Adam Tomlinson performed the blood

draw without Appellant's consent while Officer

Martin was present. Tomlinson worked for the

MCA “as a side gig part time while [also] working

on the ambulance [at Arlington EMS].” As an

Emergency Department Tech II at MCA, some of

Tomlinson's primary duties included “[s]tarting

IVs, drawing blood, [inserting and removing] Foley

catheters[,] ... transporting patients[,] and assisting

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the nurses and doctors in other procedures.” After

the sample was collected, Officer Martin transported the blood vials to the main police station and

locked them in the evidence room, where they remained refrigerated. Analyst Joyce Ho tested Appellant's blood.

*2 In both cases, Appellant filed a motion to

suppress the blood evidence on the ground that it

was seized without a warrant and without consent,

under the auspices of transportation code section

724.012, authorizing mandatory blood draws, and

triggering section 724.017, which lists those authorized to draw blood under the implied consent statutes.FN3 Appellant argued in his motions to suppress that under section 724.017, a qualified technician must draw the blood, that the statute excludes

emergency medical services personnel from the

definition of “qualified technician,” and that because Tomlinson holds an EMT paramedic license,

he is included in emergency medical services personnel. Appellant also contended that the mandatory blood draw was a search, and he moved to suppress the blood evidence on the ground that the

Fourth Amendment “does not permit nonconsensual

blood draws in every instance,” citing Missouri v.

McNeely in his brief supporting his motion in each

case.

FN4 The trial court denied the motions in

both cases.

FN3. Tex. Transp. Code Ann. § 724.012

(West 2011), § .017 (West Supp. 2014).

FN4. ––– U.S. ––––, 133 S.Ct. 1552, 1557,

185 L.Ed.2d 696 (2013).

At trial, subject to Appellant's objections to the

blood evidence, he and the State stipulated to the

result of Ho's analysis showing that he had a bloodalcohol concentration of 0.12. Dr. Robert Johnson,

Chief Toxicologist for the Tarrant County Medical

Examiner's Office, testified concerning Appellant's

0.12 blood-alcohol concentration.

Motion to Suppress

[1][2]We review a trial court's ruling on a motion to suppress evidence under a bifurcated standard of review.FN5 We give almost total deference

to a trial court's rulings on questions of historical

fact and application-of-law-to-fact questions that

turn on an evaluation of credibility and demeanor,

but we review de novo application-of-law-to-fact

questions that do not turn on credibility and demeanor.

FN6

FN5. Amador v. State, 221 S.W.3d 666,

673 (Tex.Crim.App.2007); Guzman v.

State, 955 S.W.2d 85, 89

(Tex.Crim.App.1997).

FN6. Amador, 221 S.W.3d at 673; Estrada

v. State, 154 S.W.3d 604, 607

(Tex.Crim.App.2005); Johnson v. State, 68

S.W.3d 644, 652–53 (Tex.Crim.App.2002)

.

[3][4]It is well established that

[t]he Fourth Amendment (of the United States

Constitution) proscribes all unreasonable

searches and seizures, and it is a cardinal principle that searches conducted outside the judicial

process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth

Amendment—subject only to a few specifically

established and well-delineated exceptions. FN7

The Texas Court of Criminal Appeals instructs

us that

a nonconsensual 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 requirement, violates the Fourth Amendment.FN8

The Supreme Court of the United States has

held,

Our cases have held that a warrantless search of

the person is reasonable only if it falls within a

recognized exception. That principle applies to

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the type of search at issue in this case, which involved a compelled physical intrusion beneath

McNeely's skin and into his veins to obtain a

sample of his blood for use as evidence in a criminal investigation. Such an invasion of bodily integrity implicates an individual's most personal

and deep-rooted expectations of privacy.FN9

FN7. Gonzales v. State, 369 S.W.3d 851,

854 (Tex.Crim.App.2012) (internal quotation marks and citation omitted).

FN8. Villarreal, ––– S.W.3d at ––––, 2014

WL 6734178, at *21.

FN9. McNeely, 133 S.Ct. at 1558 (citations

and internal quotation marks omitted).

[5][6]To be constitutionally permissible, a warrantless search must fall within one of the wellaccepted exceptions to the warrant requirement.

FN10 We have found no exception to the warrant

requirement that would justify the search in the

cases now before this court. The only possible exigency suggested by the records is the natural dissipation of alcohol in Appellant's body. But, as the

McNeely court held, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting

a blood test without a warrant.FN11 Examining the

totality of the circumstances here, we*3 see no

basis to justify Appellant's blood draw on the

ground of exigency.FN12 The records show that the

Arlington Police Department and the Arlington judiciary, in a commendable commitment to assuring

Fourth Amendment protections, have established a

protocol and procedure to obtain search warrants

efficiently and without undue delay. In 2011 alone,

288 search warrants were procured. The records reflect that this procedure, described by Officer Martin, Sergeant Steve Chow, also of the City of Arlington Police Department, and Judge Stewart Milner, the chief municipal judge of the City of Arlington, was efficient and available twenty-four hours a

day, seven days a week, holidays included. The records do not reflect any other exception to justify

the search.FN13 We further point out that this court

has already rejected the State's argument that the

evidence should not be excluded under article

38.23.FN14 We therefore hold that the trial court

erred by denying Appellant's motion to suppress the

blood test results in each case.FN15

FN10. Id. at 1558–59; Villarreal, –––

S.W.3d at ––––, 2014 WL 6734178, at *9.

FN11. McNeely, 133 S.Ct. at 1568.

FN12. See id.

FN13. See Villarreal, ––– S.W.3d at ––––,

2014 WL 6734178 at *10 (rejecting implied consent, exceptions to the warrant requirement—the automobile exception, the

special-needs exception, and the searchincident-to-arrest-exception, as well as the

treatment of the blood draw as a seizure,

not a search and employing a balancing

test as justifications for mandatory blood

draw).

FN14. See Burks v. State, No.

02–13–00560–CR, –––S.W.3d ––––, ––––,

2015 WL 115964, at *3 (Tex.App.–Fort

Worth Jan. 8, 2015, no pet. h.) (noting that

“there is no exception to our statutory exclusionary rule for an officer's good faith

reliance on a statute”).

FN15. See id. at ––––, 2015 WL 115964,

at *1, *3 (reversing trial court's order

denying motion to suppress in DWI-felony

repetition blood-draw case).

Harm

[7][8]Because the denial of Appellant's motions to suppress and the admission of the fruits of

the unlawful search of Appellant by means of a

warrantless, nonconsensual blood draw violated his

Fourth Amendment constitutional rights, we perform the harm analysis mandated by rule 44.2(a) of

the Rules of Appellate Procedure:

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If the appellate record in a criminal case reveals

constitutional error that is subject to harmless error review, the court of appeals must reverse a

judgment of conviction or punishment unless the

court determines beyond a reasonable doubt that

the error did not contribute to the conviction or

punishment.FN16

FN16. Tex.R.App. P. 44.2(a).

In each case, if the denial of the motion to suppress contributed in some measure to the State's

leverage in the plea-bargaining process and may

have contributed to Appellant's decision to relinquish his constitutional rights of trial and confrontation, we cannot conclude beyond a reasonable

doubt that the error did not contribute to the conviction or punishment.FN17 As a result, the error cannot be found harmless. We cannot say that the denial of Appellant's motion to suppress the results of

the blood test did not contribute to his decision to

enter a guilty plea in each case. Consequently, we

cannot say that the erroneous denial of his motion

to suppress did not contribute to his conviction in

each case.FN18 Because the trial court reversibly

erred by denying Appellant's motion to suppress in

each case, we are compelled to sustain his first

point in each case. We therefore do not reach his

remaining point in each case, which challenges the

blood draw under section 724.017.FN19

FN17. See McKenna v. State, 780 S.W.2d

797, 799–800 (Tex.Crim.App.1989); Castleberry v. State, 100 S.W.3d 400, 404

(Tex.App.–San Antonio 2002, no pet.);

Woodberry v. State, 856 S.W.2d 453,

458–59 (Tex.App.–Amarillo 1993, no pet.)

.

FN18. See Burks, ––– S.W.3d at ––––,

2015 WL 115964, at *3 (implicitly holding

error harmful by reversing trial court's

judgment and order denying motion to suppress in DWI-felony repetition blood draw

case).

FN19. See Tex.R.App. P. 47.1.

Conclusion

Having held that the trial court reversibly erred

by denying Appellant's motions to suppress, we reverse the trial court's judgments and remand both

causes to the trial court for a new trial or other proceedings consistent with this opinion.

GABRIEL, J., filed a concurring opinion in which

LIVINGSTON, C.J., joins.

LEE GABRIEL, JUSTICE, concurring.

*4 I agree that the trial court's judgments must

be reversed and remanded for further, consistent

proceedings. I write separately to clarify the parameters of this court's holdings.

This case involves a mandatory blood draw under transportation code section 724.012(b)(1),

which implies consent for a breath or blood sample

if a suspected impaired driver is in an accident and

someone other than the impaired driver “has

suffered bodily injury and been transported to a

hospital ... for medical treatment.” Tex. Transp.

Code Ann. § 724.012(b)(1)(C) (West 2011). The

court of criminal appeals, in a case involving section 724.012(b)(3), recently held that “a nonconsensual search of a DWI suspect's blood conducted

pursuant to the mandatory-blood-draw and impliedconsent provisions in the Transportation Code,

when undertaken in the absence of a warrant or any

applicable exception to the warrant requirement, violates the Fourth Amendment.” State v. Villarreal,

No. PD–0306–14, ––– S.W.3d ––––, ––––, 2014

WL 6734178, at *21 (Tex.Crim.App. Nov. 26,

2014) (5–4 opinion). Thus, the warrantless blood

draw under section 724.012(b)(1) in this case violated the Fourth Amendment and must be suppressed in the absence of any exception to the warrant requirement.

I agree that there are no exceptions to the warrant requirement in this case because the record reveals (1) no exigency; FN1 (2) that Appellant did

not consent to the search; and (3) that the automobile, search-incident-to-arrest, and special-needs

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exceptions are inapplicable. See id. at –––– – ––––,

2014 WL 6734178, at *10–16; Lloyd v. State, No.

05–13–01004–CR, ––– S.W.3d ––––, ––––, 2014

WL 7249747, at *3 (Tex.App.–Dallas Dec. 22,

2014, no pet. h.). However, the police officers at

the time of the blood draw did nothing wrong by relying on a then-valid statute to compel a blood specimen without a warrant when faced with two

people who were severely injured after Appellant

was in a wreck with them, one of whom—a tenyear-old boy—later died. Similarly, the trial court

understandably held that section 724.012(b)(1) specifically authorized the blood draw and was, in effect, an exception to the warrant requirement.

Whether or not the police had a “commendable ...

protocol” in place to secure a warrant as stated by

the opinion, the police justifiably relied on an authorizing statute to compel the warrantless search. I

recognize that there is no good-faith exception to

the exclusionary rule, see Burks v. State, No.

02–13–00560–CR, –––S.W.3d ––––, ––––, 2015

WL 115964, at *3 (Tex.App.–Fort Worth Jan. 8,

2015, no pet. h.), but I believe it imperative to

avoid any implication that the police officers or the

trial court in this case were willfully or knowingly

disregarding constitutional requirements. In any

event, the State failed to prove under the totality of

the circumstances that the warrantless search was

nevertheless reasonable based on an established exception to the warrant requirement. See Amador v.

State, 221 S.W.3d 666, 672–73

(Tex.Crim.App.2006) (holding once defendant establishes a search or seizure occurred without a

warrant and rebuts the presumption of proper police

conduct, the burden shifts to the State to prove the

reasonableness of the search or seizure).

FN1. The opinion states that the “only possible exigency suggested by the record is

the natural dissipation of alcohol in Appellant's body.” I disagree to the extent this

statement could be construed as a holding

that dissipation is the only arguable exigency in this type of case. I agree,

however, that the record in this case shows

no exigency sufficient to justify a warrantless search.

*5 Having found error, the opinion correctly

proceeds to a harm analysis under rule 44.2(a).

Tex.R.App. P. 44.2(a). Neither Appellant nor the

State briefed whether any harm flowed from the

constitutional error; thus, it is unclear whether Appellant argues that the error contributed to his decision to plead guilty, to his punishment as assessed

by the jury, or both. But the court of criminal appeals has indicated that even though the blood-test

results were admitted only during punishment, the

harm from the trial court's denial of appellant's motion to suppress, if any, is deeply connected to Appellant's decision to plead guilty. See Holmes v.

State, 323 S.W.3d 163, 172–73

(Tex.Crim.App.2009); see also Sanchez v. State, 98

S.W.3d 349, 357–58 (Tex.App.–Houston [1st Dist.]

2003, pet. ref'd). Thus, any harm arising from the

trial court's denial should be looked at relative to

Appellant's decision to plead guilty. See Gentry v.

State, No. 12–13–00168–CR, 2014 WL 4215544, at

*4 (Tex.App.–Tyler Aug. 27, 2014, pet. filed)

(mem. op., not designated for publication) (in an

appeal from DWI conviction where defendant

pleaded guilty and jury assessed punishment and

after concluding warrantless blood draw violated

Fourth Amendment, appellate court considered

“whether the trial court's admission of the blood

test evidence contributed to Appellant's decision to

plead ‘guilty’ ”); Forsyth v. State, 438 S.W.3d 216,

225 (Tex.App.–Eastland 2014, pet. ref'd) (same

holding in case where defendant pleaded guilty and

trial court assessed punishment); Jaganathan v.

State, 438 S.W.3d 823, 828–29 (Tex.App.–Houston

[14th Dist.] 2014, pet. granted) (same). But see

Noriega v. State, No. 04–13–00744–CR, 2014 WL

7339735, at *2 (Tex.App.–San Antonio Dec. 23,

2014, no pet. h.) (mem. op., not designated for publication) (concluding defendant who pleaded guilty

to DWI and had jury assess punishment was not

harmed by admission at punishment of blood-test

results obtained without a warrant because “the jury

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utory blood draw evidence in view of the other

evidence of the extent of defendant's intoxication”).

Under rule 44.2(a), we must reverse the trial

court's judgments unless we can determine beyond

a reasonable doubt that the error did not contribute

to Appellant's decision to plead guilty. In other

words, we must conclude beyond a reasonable

doubt that the trial court's failure to suppress the

blood-test results did not influence Appellant's decision to plead guilty. Forsyth, 438 S.W.3d at 225.

The record shows that after the trial court announced that it was denying the motions to suppress, Appellant's counsel stated that it was Appellant's “intention ... to enter pleas of guilty” and that

he specifically intended to preserve his right to appeal the trial court's suppression rulings. Counsel

further stated that Appellant would “enter a plea to

this now” to “not fuss about things that aren't in

dispute” and would take up the “legal issue” later

on appeal. I believe these statements by counsel

preclude a finding that Appellant's decision to plead

guilty was not influenced by the trial court's denials

of his motions to suppress. See Gentry, 2014 WL

4215544, at *4; Jaganathan, 438 S.W.3d at 829.

With these comments, I concur in the court's

reversal of the trial court's judgments and remand

for further, consistent proceedings.

LIVINGSTON, C.J. Joins.

Tex.App.-Fort Worth, 2015

Chidyausiku v. State

--- S.W.3d ----, 2015 WL 737391 (Tex.App.-Fort

Worth)

END OF DOCUMENT

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