IN THE

TENTH COURT OF APPEALS

No. 10-13-00109-CR

MICHAEL ANTHONY MCGRUDER,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 85th District Court

Brazos County, Texas

Trial Court No. 11-05822-CRF-85

O P I N I O N

Michael Anthony McGruder was convicted of the offense of driving while 

intoxicated, a felony offense, and sentenced to 30 years in prison. See TEX. PENAL CODE 

ANN. § 49.04 (West 2011). Because section 724.012(b)(3)(B) of the Texas Transportation 

Code is not unconstitutional, we affirm the trial court’s judgment.

BACKGROUND

In September of 2011, McGruder was stopped by a College Station police officer 
McGruder v. State Page 2

because McGruder’s pickup matched the description of a suspicious vehicle in the area. 

After McGruder got out of his pickup, the officer who initially stopped McGruder and 

another officer who had arrived at the scene noted that, even from a distance, 

McGruder smelled of alcohol. McGruder responded to questioning by the officers and 

gave “nonsensical” and conflicting answers. He also refused to perform any field 

sobriety exercises. McGruder was arrested and refused to submit to a breath or blood 

test. After McGruder’s pickup was inventoried and towed, McGruder was taken to the 

police department where an officer began to prepare a search warrant to obtain a 

sample of McGruder’s blood. During the process of preparing the warrant, the officer 

learned that McGruder had two prior DWI convictions. At that time, the officer 

discontinued preparing the warrant and began working on the “mandatory blood 

draw” paperwork. The officer testified that a blood draw becomes mandatory when a 

DWI suspect has two prior DWI convictions. McGruder was then taken to the hospital 

and his blood was drawn.

OBJECTION AND ISSUE

At his trial in 2013, McGruder objected to the State’s introduction of the blood 

draw kit and the blood draw vial on the basis that section 724.012 of the Texas 

Transportation Code, the section which contains the mandatory blood draw provision, 
McGruder v. State Page 3

is unconstitutional in that it allows for the seizure of evidence without a warrant.1 The 

trial court overruled his objection. On appeal, McGruder contends in one issue that, 

absent exigent circumstances or consent, section 724.012(b)(3)(B) of the Texas 

Transportation Code violates the Texas and United States Constitutional provisions 

against unreasonable searches and seizures. We construe McGruder’s argument to be a 

facial challenge to the constitutionality of that portion of the statute.2 

THE STATUTE

As it applies to this case, section 724.012(b) provides:

(b) A peace officer shall require the taking of a specimen of the person's 

breath or blood under any of the following circumstances if the officer arrests 

the person for an offense under Chapter 49, Penal Code, involving the 

operation of a motor vehicle or a watercraft and the person refuses the 

officer's request to submit to the taking of a specimen voluntarily:

***

(3) at the time of the arrest, the officer possesses or receives reliable 

information from a credible source that the person:

***

(B) on two or more occasions, has been previously convicted of or placed on 

community supervision for an offense under Section 49.04, 49.05, 49.06, or 

 

1 McGruder later objected to the lab report which contained the blood alcohol content results of 

McGruder’s blood test by stating, “Renew my earlier objection.” He did not however, object to the 

chemist’s testimony prior to the introduction of the lab report that McGruder’s blood alcohol content was 

.09 grams per 100 milliliters. We note that there was no motion to suppress filed; only objections made to 

the various exhibits as they were introduced into evidence. The Amicus Curiae, presented by the Texas 

Criminal Defense Lawyers Association, argues the trial court erred in overruling the objections to the kit, 

vial, and lab report. The Amicus Curiae does not address the admission, without objection, of the blood 

alcohol content testimony. Nevertheless, this is not the issue that McGruder has presented on appeal. 

Rather, McGruder raises a direct challenge to the constitutional validity of the “mandatory” blood draw 

provision.

2 McGruder does not argue that the Texas Constitution provides any greater or different protection than 

the United States Constitution; thus we treat them as the same in this context. See Luquis v. State, 72 

S.W.3d 355, 364 (Tex. Crim. App. 2002).
McGruder v. State Page 4

49.065, Penal Code, or an offense under the laws of another state containing 

elements substantially similar to the elements of an offense under those 

sections.

TEX. TRANSP. CODE ANN. § 724.012(b)(3)(B) (West 2011). 

MCNEELY

Relying on the recent opinion from the United States Supreme Court in Missouri 

v. McNeely, ___ U.S. ___, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013), McGruder argues that 

because section 724.012(b)(3)(B) does not require any exigent circumstance for a 

warrantless blood draw, it impermissibly narrows the constitutional right to be free 

from unreasonable searches and seizures and should be declared unconstitutional. 

Generally speaking, drawing blood from a suspect is a search and seizure within 

the scope of the Fourth Amendment to the United States Constitution. See Schmerber v. 

California, 384 U.S. 757, 767, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966). A warrantless seizure 

of a blood sample, however, can be constitutionally permissible if officers have probable 

cause to arrest a suspect, exigent circumstances exist, and a reasonable method of 

extraction is available. Id. at 767-68.

In McNeely, the United States Supreme Court addressed the issue of whether the 

Fourth Amendment required police to obtain a warrant before taking a blood sample 

from a non-consenting driver suspected of driving while intoxicated. McNeely, 133 S.

Ct. at 1556. The Court concluded that the natural dissipation of alcohol in the 

bloodstream did not present a per se exigency that justified an exception to the warrant 
McGruder v. State Page 5

requirement for non-consensual blood testing in all DWI cases. Id. Instead, the Court 

recognized that, sometimes, exigent circumstances, based in part on the rapid 

dissipation of alcohol in the body, may allow law enforcement to obtain a blood sample 

without a warrant but that courts must determine on a case-by-case basis whether 

exigent circumstances exist, considering the totality of the circumstances. Id.

Prior to McNeely, at least one Texas appellate court had interpreted section 

724.012(b) to be an exception to the Fourth Amendment warrant requirement; that is, no 

warrant was necessary to draw the defendant’s blood if he refused to consent to the 

blood draw and had two prior DWI convictions. See Aviles v. State, 385 S.W.3d 110, 112 

(Tex. App.—San Antonio 2012, pet. ref'd), vacated, 134 S. Ct. 902, 187 L. Ed. 2d 767 

(2014), op. on remand, ___ S.W.3d ___, 2014 Tex. App. LEXIS 8508 (Tex. App.—San 

Antonio Aug. 6, 2014, no pet. h.). But the United States Supreme Court vacated that 

court’s judgment and remanded the case to the court of appeals for further 

consideration in light of McNeely. Aviles, 134 S. Ct. at 902. Since then, Texas appellate 

courts have held that a non-consensual blood draw without a warrant pursuant to 

section 724.012(b) and without evidence of exigent circumstances other than simply the 

rapid dissipation of alcohol in the bloodstream violates a defendant’s Fourth 

Amendment rights.3 See Douds v. State, No. 14-12-00642-CR, 2014 Tex. App. LEXIS 6152 

(Tex. App.—Houston [14th Dist.] June 5, 2014, pet. filed) (op. on rh’g) (publish); Weems 

 

3 This is not the issue we have been asked to decide and express no opinion regarding that issue.
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v. State, No. 04-13-00366-CR, 2014 Tex. App. LEXIS 5109 (Tex. App.—San Antonio May 

14, 2014, pet. filed) (publish); Reeder v. State, No. 06-13-00126-CR, 2014 Tex. App. LEXIS 

4558 (Tex. App.—Texarkana April 29, 2014, pet. filed) (publish); Sutherland v. State, No. 

07-12-00289-CR, 2014 Tex. App. LEXIS 3694 (Tex. App.—Amarillo, April 7, 2014, pet. 

filed) (publish); Villarreal v. State, No. 13-13-00253-CR, 2014 Tex. App. LEXIS 645 (Tex. 

App.—Corpus Christi Jan. 23, 2014, pet. granted) (publish). See also Baker v. State, No. 

12-12-00092-CR, 2013 Tex. App. LEXIS 12818 (Tex. App.—Tyler Oct. 16, 2013, pet. 

granted) (not designated for publication) (trial court could have reasonably concluded 

State failed to show warrantless blood draw was supported by exigent circumstances). 

Contra Perez v. State, No. 01-12-01001-CR, 2014 Tex. App. LEXIS 2681 (Tex. App.—

Houston [1st Dist.] Mar. 11, 2014, no pet. h.) (publish) (motion for rehearing filed; 

response requested by the court; response filed).

FACIAL CONSTITUTIONAL CHALLENGE

But McGruder asks us to find that section 724.012(b)(3)(B) is unconstitutional. To 

prevail on a facial challenge, a party must establish that the statute always operates 

unconstitutionally in all possible circumstances. State v. Rosseau, 396 S.W.3d 550, 557 

(Tex. Crim. App. 2013). A facial challenge to a statute is the most difficult challenge to 

mount successfully because the challenger must establish that no set of circumstances 

exists under which the statute will be valid. Santikos v. State, 836 S.W.2d 631, 633 (Tex. 

Crim. App. 1992). 
McGruder v. State Page 7

Whether a statute is facially constitutional is a question of law that we review de 

novo. Ex parte Lo, 424 S.W.3d 10, 14 (Tex. Crim. App. 2013). When the constitutionality 

of a statute is attacked, we begin with the presumption that the statute is valid and that 

the legislature has not acted unreasonably or arbitrarily. Id. at 14-15. The burden 

normally rests upon the person challenging the statute to establish its 

unconstitutionality. Id. at 15. In the absence of contrary evidence, we will presume that 

the legislature acted in a constitutionally sound fashion. Rodriguez v. State, 93 S.W.3d 

60, 69 (Tex. Crim. App. 2002).

Section 724.012(b) merely requires an officer to take a blood or breath specimen 

in certain circumstances. What makes the statute mandatory is that the officer has no 

discretion in those situations to obtain either a blood or a breath specimen. It does not 

mandate, nor does it purport to authorize, a specimen be taken without compliance 

with the Fourth Amendment. And although the Court of Criminal Appeals has said 

that the implied consent law, the body of law in which this particular statute is 

contained, enables officers to draw blood in certain limited circumstances, a.k.a. exigent 

circumstances, even without a search warrant, the Court also said that the law did not 

give officers the ability to forcibly obtain blood samples from anyone just because they 

were arrested for DWI. Beeman v. State, 86 S.W.3d 613, 616 (Tex. Crim. App. 2002). 

Further, the Court did not hold in Beeman, and has not yet held, that section 724.012(b) 

is an exception to the Fourth Amendment’s warrant requirement such as the consent 
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exception or the exigent circumstances exception. See Villarreal v. State, No. 13-13-00253-

CR, 2014 Tex. App. LEXIS 645, *35 (Tex. App.—Corpus Christi Jan. 23, 2014, pet. 

granted) (publish). 

Further, as written, section 724.012(b) does not require a blood or breath 

specimen to be taken contrary to the Fourth Amendment; that is, without a warrant or 

without a recognized exception to the warrant requirement. See Forsyth v. State, No. 11-

12-00198-CR, 2014 Tex. App. LEXIS 8381, *22 (Tex. App.—Eastland July 31, 2014) (no 

pet. h.) (publish) (“...Section 724.012 does not instruct an officer to take a person's blood 

without a warrant or in violation of the Fourth Amendment,” citing Villarreal v. State, 

No. 13-13-00253-CR, 2014 Tex. App. LEXIS 645 (Tex. App.—Corpus Christi Jan. 23, 2014, 

pet. granted) (publish)).4 We agree with the Houston Court of Appeals when it aptly 

noted, “We have no reason to fault the constitutionality of the mandatory blood draw 

statute in this case because it did not require [the officer] to obtain a blood draw 

without first securing a warrant. It is the officer's failure to obtain a warrant and the 

State's failure to prove an exception to the warrant requirement, not the mandatory 

nature of the blood draw statute, that violate the Fourth Amendment.” Douds v. State, 

No. 14-12-00642-CR, 2014 Tex. App. LEXIS 6152, *48-49 (Tex. App.—Houston [14th 

Dist.] June 5, 2014, pet. filed) (op. on rh’g) (publish). 

 

4 Other courts of appeals agree with this interpretation. See Douds v. State, No. 14-12-00642-CR, 2014 Tex. 

App. LEXIS 6152, *46 (Tex. App.—Houston [14th Dist.] June 5, 2014, pet. filed) (op. on rh’g) (publish);

Weems v. State, No. 04-13-00366-CR, 2014 Tex. App. LEXIS 5109, * 24 (Tex. App.—San Antonio May 14, 

2014, pet. filed) (publish); Reeder v. State, No. 06-13-00126-CR, 2014 Tex. App. LEXIS 4558, *14 n. 10 (Tex. 

App.—Texarkana April 29, 2014, pet. filed) (publish).
McGruder v. State Page 9

McGruder has failed to point us to anything else that would show the statute to 

be unconstitutional. Thus, McGruder’s facial challenge to the statute must fail, and we 

presume the statute to be constitutionally valid.

CONCLUSION

Accordingly, McGruder’s sole issue is overruled, and the trial court’s judgment 

is affirmed.

TOM GRAY

Chief Justice

Before Chief Justice Gray,

Justice Davis, and

Justice Scoggins

(Justice Davis dissenting)

Affirmed

Opinion delivered and filed August 14, 2014

Publish 

[CRPM]