### 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.”).