Opinion filed August 21, 2015

In The

Eleventh Court of Appeals 

__________

No. 11-13-00347-CR

__________

LAURA DENISE MOORE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 372nd District Court

Tarrant County, Texas

Trial Court Cause No. 1311911D

M E M O R A N D U M O P I N I O N

The judgment of the trial court in this case reflects that the jury found 

Appellant, Laura Denise Moore, guilty of “driving while intoxicated and felony 

repetition,” a third-degree felony.

1

 Appellant elected to have the trial court assess 

punishment, and it assessed Appellant’s punishment at confinement for ten years 

 

1TEX. PENAL CODE ANN. §§ 49.04, 49.09(b) (West Supp. 2014). 
2

and a $1,500 fine.2 The trial court suspended the confinement portion of the sentence 

and placed Appellant on community supervision for a term of five years. We reverse 

and remand. 

I. The Charged Offense

The grand jury returned an indictment alleging that Appellant operated a 

motor vehicle in a public place while intoxicated and that Appellant had twice before 

been convicted of the offense of driving while intoxicated. A person commits the 

offense of driving while intoxicated, felony repetition, “if the person is intoxicated 

while operating a motor vehicle in a public place” and it is shown that “the person 

has previously been convicted . . . two times of any other offense relating to the 

operating of a motor vehicle while intoxicated.” PENAL §§ 49.04(a), 49.09(b)(2). 

II. Issues Presented

Appellant argues, in her first issue, that the trial court erred when it denied her 

motion to suppress evidence from the blood draw because her blood was drawn 

illegally.3 In her second and third issues, she argues that the trial court erred when 

it denied her requests for a jury instruction under Article 38.23 of the Texas Code of 

Criminal Procedure4 on the validity of the traffic stop and the blood draw. In her 

final issue, Appellant argues that the trial court erred when it denied her motion for 

mistrial after the State’s witness improperly testified about an alleged extraneous 

offense.

 

2See PENAL § 12.34 (West 2011).

3Appellant’s case is a transfer case from the Second Court of Appeals in Fort Worth, and under 

Rule 41.3 of the Texas Rules of Appellate Procedure, we apply its precedent unless we determine that our 

sister court would decline to do so. 

4See TEX. CODE CRIM. PROC. ANN. art. 38.23(a) (West 2005).
3

III. Evidence at Trial

Officer Mark Miller of the Bedford Police Department was on patrol at 

approximately 4:50 a.m. when he saw Appellant come “very close to failing to yield” 

to other cars. Officer Miller then saw Appellant abruptly make an illegal left turn

from the center lane. He turned on his emergency lights and stopped Appellant. 

Before he could speak to Appellant, she drove her vehicle out of the parking lot and 

onto the street. Officer Miller pursued her with both his emergency lights and siren

activated, and Appellant abruptly pulled into the parking lot of a shopping center. 

Appellant was seated in the driver’s seat of her vehicle. Officer Miller 

approached Appellant. When he reached the window area where Appellant was 

seated, he smelled a “moderate odor of alcoholic beverage” and also noticed that 

Appellant’s eyes were “extremely watery.” He asked Appellant where she was 

coming from and where she was going; Appellant answered “home” to each 

question. Officer Miller described Appellant’s speech as “very slurred.” Based on

his observations, Officer Miller decided to conduct a standardized field sobriety test. 

The test is composed of three parts. Appellant failed two of the three parts, and 

based on those results and Officer Miller’s observations before he administered the

sobriety test, he arrested her for driving while intoxicated. Officer Miller transported 

Appellant to the jail. 

Officer Miller also learned from questioning Appellant and from a check of 

criminal history records, that she had been convicted of driving while intoxicated on 

two previous occasions. Officer Miller read Appellant the statutory warnings on the 

DIC-24 form5and asked if she would provide him with a breath sample; she refused.

Officer Miller testified that, because Appellant had two prior convictions for driving 

 

5A DIC-24 warning is a Department of Public Safety Form that provides the warnings outlined in 

Section 724.015 of the Texas Transportation Code. See TEX. TRANSP. CODE ANN. § 724.015 (West 2011).
4

while intoxicated, he was required6to obtain a sample of Appellant’s blood or breath.

Officer Miller secured a blood draw kit, transported Appellant to a local hospital, 

and had a registered nurse draw a specimen of Appellant’s blood. Officer Miller 

noted that he could have obtained a warrant but that he did not do so because he had 

arrested Appellant for driving while intoxicated after she already had two prior 

convictions for that same offense.

IV. Analysis

We will only address Appellant’s first issue. As we explain below, the 

resolution of that issue obviates the need for us to address her remaining issues. 

A. Standard of Review

We review a trial court's ruling on a motion to suppress under a bifurcated 

standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 

2000). We give great deference to the trial court's findings of historical facts if the 

record supports the findings. Guzman v. State, 955 S.W.2d 85, 87 (Tex. Crim. App. 

1997). Because the trial court is the exclusive factfinder, the appellate court reviews 

evidence adduced at the suppression hearing in the light most favorable to the trial 

court’s ruling. Carmouche, 10 S.W.3d at 327. We also give deference to the trial 

court’s rulings on mixed questions of law and fact when those rulings turn on an 

evaluation of credibility and demeanor. Guzman, 955 S.W.2d at 87. Where such 

rulings do not turn on an evaluation of credibility and demeanor, we review the trial 

court’s actions de novo. Id.

B. Motion to Suppress

Appellant argued in her pretrial motion to suppress that the blood draw and 

the test results were inadmissible because the blood specimen had been illegally 

drawn. The trial court initially denied her motion. At trial, Appellant re-urged her 

objection, and the trial court carried the motion through trial and then denied it again. 

 

6See TRANSP. § 724.012(b).
5

Appellant asserts that the taking of her blood was in violation of her constitutional 

rights because the blood draw was conducted without a warrant, consent, or any 

other recognized exception to the warrant requirement.

The State asserts that the blood draw was constitutional because it was 

reasonable and that, regardless, the exceptions of implied consent and search 

incident to arrest dispensed with the warrant requirement. Further, the State asserts 

that, even if the search was not reasonable and no warrant exception applies, the 

exclusionary rule does not operate to exclude the evidence. Absent a warrant, a 

search is presumed unreasonable, and the State carries the burden to prove that an 

exception to the warrant requirement applies. See Gutierrez v. State, 221 S.W.3d 

680, 685 (Tex. Crim. App. 2007). The State stipulated that Appellant’s blood was 

drawn without a warrant. Therefore, the State had the burden to prove an exception 

to the warrant requirement.

C. Implied Consent

The State first argues that Officer Miller had implied consent to draw 

Appellant’s blood in accordance with Section 724.012 of the Texas Transportation 

Code. See TRANSP. § 724.012. Section 724.012 provides that an officer “shall 

require the taking of a specimen of the person’s breath or blood . . . if the officer 

arrests the person for [DWI] and the person refuses the officer’s request to submit to 

the taking of a specimen voluntarily” and if one of three circumstances is met. Id.

§ 724.012(b). The relevant circumstance is that, “at the time of the arrest, the officer 

possesses or receives reliable information from a credible source that the person” 

has been convicted of driving while intoxicated on two prior occasions. Id.

§ 724.012(b)(3)(B). Section 724.011 provides that, if such a person is arrested for 

driving while intoxicated, the person is deemed to have consented to the submission 

of a specimen of breath or blood for analysis to determine the alcohol concentration 

in the person’s body. Id. § 724.011.
6

Implied consent under the Texas Transportation Code is not a recognized 

exception to the warrant requirement, and the State cannot rely on it alone to justify 

a warrantless blood draw. See Burks v. State, 454 S.W.3d 705, 708–09 (Tex. App.—

Fort Worth 2015, pet. filed); Forsyth v. State, 438 S.W.3d 216, 223 (Tex. App.—

Eastland 2014, pet. ref’d); Douds v. State, 434 S.W.3d 842, 861 (Tex. App.—

Houston [14th Dist.] 2014, pet. granted); Weems v. State, 434 S.W.3d 655, 664 (Tex. 

App.—San Antonio 2014, pet. granted). We note the reasoning and holdings in 

these cases, and we decline to adopt the State’s argument that it had implied consent 

to draw Appellant’s blood without a warrant. We cannot uphold the trial court’s 

ruling on such grounds.

D. Fourth Amendment Reasonableness

The State next asserts that the mandatory blood draw was a reasonable search 

under the Fourth Amendment and that a warrant was not required. Under a Fourth 

Amendment balancing test, we balance the intrusion on the person’s Fourth 

Amendment interests against the promotion of a legitimate interest of the 

government. See Schenekl v. State, 30 S.W.3d 412, 413 (Tex. Crim. App. 2000). 

The Supreme Court has described a blood draw as “a compelled physical intrusion 

beneath [the accused’s] skin and into his veins to obtain a sample of his blood for 

use as evidence in a criminal investigation.” Missouri v. McNeely, 133 S. Ct. 1552, 

1558 (2013). The Supreme Court continued, “Such an invasion of bodily integrity 

implicates an individual’s ‘most personal and deep-rooted expectations of privacy.’” 

Id. (quoting Winston v. Lee, 470 U.S. 753, 760 (1985)).7 We have considered this 

issue before, and we have declined “to hold that mandatory blood draws under the 

Texas Transportation Code are per se reasonable.” Forsyth, 438 S.W.3d at 224.

 

7We note that the Court of Criminal Appeals recently addressed, under the Fourth Amendment to 

the United States Constitution, the constitutionality of warrantless, nonconsensual blood draws under 

Section 724.012 of the Texas Transportation Code. See State v. Villarreal, No. PD-0306-14, 2014 

WL 6734178 (Tex. Crim. App. Nov. 26, 2014). We also note that the Court of Criminal Appeals granted 

rehearing in State v. Villarreal on February 25, 2015. 
7

Officer Miller testified that he relied on the implied consent provision of the 

Texas Transportation Code as justification for the warrantless blood draw. He also 

agreed he could have obtained a warrant, but he chose to rely on the statute because

Appellant’s arrest for driving while intoxicated followed two prior convictions for 

the same offense. In that context, and considering that mandatory blood draws are

not per se reasonable, we cannot uphold the trial court’s decision that the warrantless 

blood draw was reasonable. Forsyth, 438 S.W.3d at 224.

E. Search Incident to Arrest

The State’s third argument is that the mandatory blood draw constitutes a 

lawful search “incident to arrest.” The search-incident-to-arrest exception to the 

warrant requirement applies only if the search is “substantially contemporaneous” 

with the arrest and is also confined to the area within the immediate control of the 

suspect. State v. Granville, 423 S.W.3d 399, 410 (Tex. Crim. App. 2014) (quoting 

Vale v. Louisiana, 399 U.S. 30, 33 (1970)). The purpose of the search is to protect 

the officer, prevent an escape, or protect the loss or destruction of evidence. Id. at 

410. Therefore, when a search is not sufficiently close in time or place to the arrest, 

then the search-incident-to-arrest exception is not normally justified. Id. 

Furthermore, the exception is usually applied to an “active attempt by a defendant 

or his associates to conceal or destroy evidence upon arrest.” Riley v. California, 

134 S. Ct. 2473, 2486 (2014).

 Appellant’s blood was drawn at a hospital after Appellant had been arrested 

and transported to the jail and then to the hospital. Under these facts, we cannot say 

that officer safety or prevention of escape was implicated. As to the argument that 

the blood draw was necessary to protect the destruction of evidence, we cannot say 

that the natural dissipation of alcohol in the blood constitutes an “active attempt 

. . . to conceal or destroy evidence.” Id. Based upon the rationale of the searchincident-to-arrest exception to the warrant requirement and upon the fact that the 
8

search was not close in time or place to the arrest, we hold that such an exception is 

not applicable in this case to support the warrantless blood draw.

F. Exclusionary Rule

The State’s final argument is that, even if the blood draw was unlawful, the 

Texas exclusionary rule does not apply because Officer Miller followed an existing 

statute that had not been held unconstitutional when he arranged for the warrantless 

blood draw. We disagree with the State’s contention. Article 38.23 of the Texas 

Code of Criminal Procedure, the Texas exclusionary rule, states, “No evidence 

obtained by an officer . . . in violation of any provisions of the Constitution or laws 

of [either Texas or the United States], shall be admitted in evidence against the 

accused on the trial of any criminal case.” CRIM. PROC. art. 38.23(a). 

The statute also provides an exception to the exclusionary rule, but “only 

when an officer relies in good faith upon a warrant issued by a neutral magistrate 

based on probable cause.” Weems, 434 S.W.3d at 666–67 (citing CRIM. PROC. art. 

38.23(b)). There is no exception to the Texas exclusionary rule for good faith 

reliance on a statute. Burks, 454 S.W.3d at 709; Forysth, 438 S.W.3d at 224; Douds, 

434 S.W.3d at 861; Weems, 434 S.W.3d at 666–67. Officer Miller did not obtain a 

warrant, and no exception to the exclusionary rule applies. And nothing in 

Section 724.012 of the Transportation Code instructs an officer to take a suspect’s 

blood without a warrant or provides a valid exception to the warrant requirement of 

the Fourth Amendment. See TRANSP. § 724.012; see also Forsyth, 438 S.W.3d at 

224–25. Thus, the evidence should have been excluded. We sustain Appellant’s 

first issue. 

G. Rule 44.2(a) Harm Analysis

Because the warrantless mandatory blood draw violated Appellant’s rights 

under the Fourth Amendment, we must reverse the judgment unless we determine 

beyond a reasonable doubt that the error did not contribute to the conviction or 
9

punishment. TEX. R. APP. P. 44.2(a); Weems, 434 S.W.3d at 667. The jury was 

instructed as follows:

“Intoxicated” means:

(A) not having the normal use of one’s mental or physical

faculties by reason of the introduction of alcohol into the body; OR

(B) having an alcohol concentration of 0.08 or more.

Officer Miller testified that he stopped Appellant because she came very close to 

failing to yield to other cars and then made an illegal left turn from the center lane. 

Officer Miller stopped Appellant, but before he could speak to her, she drove away. 

Officer Miller stopped her again when she pulled into a parking lot at a shopping 

center. He spoke to her and noticed a moderate odor of alcohol. Officer Miller said 

Appellant’s eyes were watery and her speech was very slurred. He conducted a field 

sobriety test in three parts. Appellant failed two parts, and Officer Miller arrested 

her.

At the jail, Appellant refused to take a breath test. Subsequently, her blood 

was taken by a nurse, who handed the blood samples to Officer Miller. 

Officer Miller placed them in evidence envelopes and put them in a refrigerated

locker in a secure location at the jail. The samples were then taken to the Integrated

Forensic Laboratories where forensic scientist Aubrey Norberg worked. Norberg 

tested the blood samples from Appellant and testified that Appellant’s blood alcohol 

concentration (BAC) was 0.16 grams of ethyl alcohol per 100 milliliters of whole 

blood. The State emphasized this evidence during trial. After a review of the record, 

we cannot say beyond a reasonable doubt that the blood sample evidence did not 

contribute to Appellant’s conviction. See TEX. R. APP. P. 44.2(a); Weems, 434 

S.W.3d at 667; see also Forsyth, 438 S.W.3d at 225. 
10

V. Conclusion

We hold that the trial court erred when it denied Appellant’s motion to 

suppress the evidence from the blood draw. In light of that holding, we need not 

address Appellant’s other issues.

VI. This Court’s Ruling

We reverse the judgment of the trial court and remand this cause to the trial 

court for further proceedings consistent with this opinion.

MIKE WILLSON

JUSTICE 

August 21, 2015

Do not publish. See TEX. R. APP. P. 47.2(b).

Panel consists of: Wright, C.J., 

Willson, J., and Bailey, J.