1

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS 

NO. PD-0984-19

THE STATE OF TEXAS, Appellant

v.

SEAN MICHAEL MCGUIRE, Appellee

ON STATE’S PETITION FOR DISCRETIONARY REVIEW

FROM THE FIRST COURT OF APPEALS

FORT BEND COUNTY

RICHARDSON, J., announced the judgment of the Court and filed an opinion 

in which HERVEY, NEWELL, and WALKER, JJ., joined. KEEL, J., filed a concurring 

opinion in which KELLER, P.J., YEARY, and SLAUGHTER, JJ., joined. MCCLURE, J., 

concurred.

OPINION

Can a peace officer legally arrest a suspect, without a warrant, for killing another 

person while driving intoxicated, even though the accident did not occur in the officer’s 

presence? Yes. The Texas Code of Criminal Procedure 14.03(a)(1) has been interpreted to 

allow any peace officer to arrest a person found in a “suspicious place” and the 

circumstances of the case reasonably show that the person is guilty of a felony or breach 
2

of the peace. We find that the arrest met the requirements of this statute, and that the officer 

formed probable cause to believe that both a felony and breach of the peace had occurred. 

Accordingly, we reverse the court of appeals and the trial court’s suppression of Appellee’s 

arrest and all evidence arising from it and remand the case to the trial court for further 

proceedings.

PROCEDURAL HISTORY

This case has travelled a long and convoluted journey to reach this Court for the 

third time. Prior to our Court granting review, this case has been before both Houston 

courts of appeals on four separate occasions, petitions for discretionary review were filed 

and denied twice at our Court, and the State’s petition for writ of certiorari was 

subsequently denied at the United States Supreme Court. Appellee was tried and convicted

on two separate charges by a jury. The conviction for felony murder was reversed by the

First Court of Appeals and remanded for a new trial. The conviction for failure to stop and 

render aid was affirmed by the First Court of Appeals and is not before this Court. This 

case has also been presided over by seven successive trial judges. The original judge on 

the case became ill prior to trial and another was recused in a contested motion to recuse. 

There was no live testimony presented on the current issue before this Court; the trial judge 

simply relied on the records and testimonies taken during prior pretrial proceedings and the 

jury trial. As a result, the transcripts of this proceeding had to be supplemented. The latest

ruling now before this Court was made by Judge Brady Elliott who is no longer the judge 
3

of the 268th District Court. On remand, consequently, an eighth judge will continue with 

this case.

FACTS 

On the date alleged in the indictment, at approximately 12:35 am, Appellee Sean 

Michael McGuire, with his wife as a passenger, drove his truck into a motorcycle driven 

by David Stidman causing Stidman’s death.

1 McGuire made a U-turn and drove to a nearby 

Shell gas station a tenth of a mile from the accident scene. There, he called his mother and 

two law enforcement friends.2 Police investigating the collision were also informed that 

McGuire was waiting at the gas station. One of the officers, Trooper Tomlin, who 

responded to the collision scene went to the gas station to investigate. There, he 

encountered McGuire and his wife. He also encountered McGuire’s mother—who had 

come to the gas station after McGuire called—standing outside of McGuire’s truck. 

Trooper Wiles also came to the gas station from the crash scene shortly after Trooper 

Tomlin. Trooper Tomlin observed a piece of metal from the back fender of the motorcycle 

wrapped around the front of McGuire’s truck. Trooper Tomlin also observed McGuire to 

have “red glassy eyes” and “an odor of alcohol coming from his person.”3 When he asked 

1 Trooper Filmore testified that reports of the collision were received by around 12:40 am. 

The accident, he estimated, may have actually occurred up to five minutes prior to the report to 

the police—making the collision time roughly 12:35 am. Trial Tr. 74-75.

2 Other than passing information onward, the two law enforcement friends were not 

involved in the investigation. One friend was a deputy chief and the other was a narcotic officer. 

3 Trooper Filmore confirmed these observations of intoxication later at the scene of the 

accident. Trial Tr. 34.
4

McGuire what happened, McGuire told him that he “hit something” while driving and that 

his wife, sitting in the passenger seat at the time, had told him he “hit a person.” In order 

to continue the investigation and because both McGuire and his wife were showing signs 

of intoxication, McGuire’s mother was asked to bring the truck to the scene of the collision 

while McGuire and his wife were transported there by patrol car.

4

Continuing the investigation at the scene of the accident, police found gouges on 

the road and other evidence indicating that after McGuire’s truck hit Stidman, the truck 

continued to drag the motorcycle for 829 feet before coming to rest. Additionally, Stidman, 

himself, was thrown 214 feet from the point of impact and hit a guardrail. Concluding that 

McGuire was driving while intoxicated at the time of the collision leading to Stidman’s 

death, Trooper Wiles arrested McGuire on suspicion of causing Stidman’s death by reason 

of intoxicated operation of a motor vehicle and failure to stop and render aid, both felony 

offenses.

At a nearby hospital, McGuire’s blood was drawn without a warrant or consent to 

determine his blood alcohol content. Somewhere between 90 minutes and 2.5 hours had 

passed from the time of the collision to the moment his blood was drawn. The State charged 

McGuire with felony murder by causing Stidman’s death while driving intoxicated

(enhanced to a first-degree felony by two prior out-of-state charges for driving while 

4 While riding in the patrol car, both McGuire and his wife were detained “pending further 

investigation” but not under arrest. They were not handcuffed and the patrol car doors were left 

unlocked. Furthermore, McGuire rode in the front passenger seat to the crash site. Trial Tr. 152-

53. 
5

intoxicated), a second count of intoxication manslaughter with a vehicle, and failure to stop 

and render aid. The jury convicted him of felony murder and failure to stop and render aid. 

The felony murder conviction was reversed in light of Missouri v. McNeely5 however, 

McGuire’s conviction for failure to stop and render aid was affirmed by the First Court of 

Appeals. 

On remand and before the second trial began, Appellee filed a new motion to 

suppress, this time to suppress the arrest. Specifically he argued that the “only exception 

to the warrant requirement which could possibly apply in this case” was under 14.01(b)

which requires an “offense committed in [the officer’s] presence or within his view.” 

Appellee, thus, requested suppression over the following items after his detention:

1. Photographs or video depictions of [Appellee].

2. Audio recordings of [Appellee].

3. Video recordings of [Appellee].

4. Statements of [Appellee].

5. Any other tangible items taken from [Appellee], his person or the vehicle 

he was allegedly operating not listed above;6

The State argued McGuire’s arrest was lawful because probable cause existed, and 

he was found in a suspicious place under Tex. Code Crim. Proc. art. 14.03(a)(1). The State 

did not mention exigency at all in its written response. Furthermore, no new evidence was 

5 McGuire v. State, 493 S.W.3d 177 (Tex. App.—Houston[1st Dist.] 2016, pet. ref'd), cert. 

denied, 581 U.S. 1006 (2017); Missouri v. McNeely, 569 U.S. 141, 151 (2013).

6 (1 Corr. CR 14) (“Motion to Suppress Evidence”). We note that Appellee did not include 

his vehicle nor any evidence obtained prior to detention. 
6

submitted to the court during the suppression hearing, nor did anybody testify. The trial 

court did not hear any testimony and simply reviewed the pleadings, the 2012 suppressionhearing transcript, and testimony from the 2016 trial.7 The trial court ultimately granted 

the suppression motion pertaining to the warrantless arrest based on those records. 

With regard to which evidence was to be suppressed, the trial court clarified the 

boundaries during the suppression hearing. The court stated:

THE COURT: Well, let's clarify. Items taken from the vehicle, I'm not 

going to grant suppression as to that . . . .8

THE COURT: "Tangible items taken from the defendant," I'm striking 

that . . . . Any information they received from the 

defendant prior to that time is useable. He was being 

detained at that point in time . . . .

9

THE COURT: From the time that he was placed in the car at the Shell 

station to the time that he was placed under arrest at the 

site of the dead body, that comes in . . . .10

THE COURT: [A]t that point in time where this officer says, "You're 

under arrest," . . . is suppressed; and everything that 

arose from that -- the conversations that occurred 

therefrom is suppressed.11

7 The transcripts for these hearings were missing from the original record forwarded to this 

Court. They were produced through a supplement. 

8

 (1 RR 35).

9

 (1 RR 37). The trial court’s copy of the motion to suppress shows that the judge crossed 

out the entire “Any other tangible items . . . .” provision, and amended all other provisions with 

the limitations of either “after arrest/shown body” or “after placed in PD vehicle after arrest.”

(1 Corr. CR 14).

10 (1 RR 58). 

11 (1 RR 60). 
7

In short, the evidence to be suppressed did not include any physical evidence and 

was limited to what “arose” from his arrest. This would include such post-arrest evidence 

as McGuire’s statements after arrest, dashcam video and audio recordings with McGuire 

in the police vehicle after arrest, and McGuire’s booking photo.

This brings us to the present-day appeal by the State to this Court. Under the record 

brought before this Court, it is unclear what specific evidence Appellee sought to suppress.

The record does not show whether such evidence would benefit or hurt either party’s case.

However, with the suppression of the arrest and its fruits in place, the admissible 

inculpatory evidence includes the following:

• McGuire was operating the vehicle. 

• McGuire made three phone calls (his mother and two acquaintances in law 

enforcement) indicating he hit “something.”

• McGuire’s wife, a passenger at the time of the collision, told him he hit a person.

• McGuire stopped his vehicle at a Shell station approximately 0.1 miles from the 

crash site instead of stopping at the scene and rendering aid.

• Physical evidence of a piece of motorcycle stuck in the grill of McGuire’s truck. 

• McGuire states to Trooper Wiles, “My wife said I hit a person.”

• McGuire cried, covered his face, crouched, and stated he was “sorry” multiple 

times when near the motorcycle at the crash scene. 

• The motorcycle was dragged approximately 829 feet.

• McGuire didn’t notice the piece of motorcycle in the grill of his truck. He “didn’t 

seem to know where it came from.”

• Trooper Wiles noticed a strong odor of alcohol on McGuire, bloodshot and glassy 

eyes, and a dazed look on his face.

• McGuire refused a field-sobriety test by Trooper Wiles.
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Nevertheless, because some evidence is suppressed and assuming for the moment that it is

indeed determinative to the case, we now address whether suppression was warranted.12

Standard of Review for Motions to Suppress

An appellate court reviews a trial court’s ruling on a motion to suppress for an abuse 

of discretion. 13 Almost complete deference is given to the court's determination of 

historical facts and its rulings on the application of law to those questions of fact.14 The 

same deference is afforded to the trial court in deciding mixed questions of law and fact 

that are based on an assessment of credibility and demeanor.15 For mixed questions of law 

and fact that do not involve an evaluation of credibility and demeanor, however, we 

conduct a de novo review.16 If the trial court’s ruling is correct on any theory of law 

applicable to the case and reasonably supported by the evidence, the ruling will be upheld.17

Seizures under Texas Law

12 On appellate review, it can be difficult to evaluate the weight or need of any specific 

item of evidence without at least some pointers as to how the party intends to rely on it or not. 

13 Crain v. State, 315 S.W.3d 43, 48 (Tex. Crim. App. 2010).

14 Id. 

15 Id.

16 Id.

17 Calloway v. State, 743 S.W.2d 645, 651-52 (Tex. Crim. App. 1988). 
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Federal and State constitutional provisions explicitly protects the right of the people 

to be free from “unreasonable seizures and searches.” Generally, searches and seizures may 

only be conducted pursuant to a warrant unless a recognized exception to the warrant 

requirement applies. Warrants for seizures and searches will not issue “without probable 

cause.” Probable cause exists, under the totality of the circumstances, if the evidence shows 

at the moment of arrest that “the facts and circumstances within the officer’s knowledge 

and of which he had reasonably trustworthy information were sufficient to warrant a 

prudent man in believing that the arrested person had committed or was committing an 

offense.”18 “Probable cause to arrest must point like a beacon toward the specific person 

being arrested.”19

In that vein, Texas law also requires statutory authority to arrest when the arrest is 

warrantless.20 Texas Code of Criminal Procedure 14.03(a)(1) provides one such avenue of 

authority for warrantless arrests:

Any peace officer may arrest, without warrant . . . persons found in 

suspicious places and under circumstances which reasonably show that such 

persons have been guilty of some felony, violation of Title 9, Chapter 42, 

Penal Code, breach of the peace, or offense under Section 49.02, Penal Code, 

or are about to commit some offense against the laws; . . . .

18 Parker v. State, 206 S.W.3d 593, 596-97 (Tex. Crim. App. 2006). 

19 Id. at 597. 

20 State v. Steelman, 93 S.W.3d 102, 107 (Tex. Crim. App. 2002). 
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We have historically recognized that an overly liberal construction of the authority to 

determine what is a “suspicious place” could give police the arbitrary and unlawful “power 

to pass summary judgment upon a human being, and incarcerate him in a dungeon, 

although innocent of any crime against law or society.”21 Thus, in order to maintain “the 

obvious legislative intent of Chapter 14, protection of individual rights and furtherance of 

legitimate law enforcement,” this Court has recognized that the use of “persons found in 

suspicious places” under Article 14.03 should “authorize warrantless arrests in only limited 

situations.”22 In doing so, our case law construing this statutory authority has evolved often 

parallel to the requirements of the Fourth Amendment on the federal side. 

Accordingly, we have said that “[t]he determination of whether a place is a 

‘suspicious place’ is a highly fact-specific analysis” because “few, if any, places are 

suspicious in and of themselves.” 23 “Rather, additional facts available to an officer plus 

reasonable inferences from those facts in relation to a particular place may arouse 

justifiable suspicion.” 24 Though several different factors “may be used to justify the 

determination of a place as suspicious,” this Court has recognized at least one important 

21 Joske v. Irvine, 43 S.W. 278, 280 (Tex. Civ. App. 1897), rev’d on other grounds, 44 

S.W. 1059 (Tex. 1898) (construing the predecessor statute, Article 249 of the Code of Criminal 

Procedure of 1895, to the modern Article 14.03). See also Joske v. Irvine, 44 S.W. 1059 (Tex. 

1898) (“We are therefore of opinion that the record shows that plaintiff’s arrest was unlawful.”).

22 Johnson v. State, 722 S.W.2d 417, 421 (Tex. Crim. App. 1986). 

23 Dyar v. State, 125 S.W.3d 460, 468 (Tex. Crim. App. 2003); Johnson, 722 S.W.2d at 

421.

24 Johnson, 722 at 421.
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factor common to most scenarios: “The time frame between the crime and the apprehension 

of a suspect in a suspicious place is short.”25 This Court and a number of the courts of 

appeals have consequently found suspects lawfully arrested in “suspicious places” where 

(1) the suspect was arrested at a crime scene or somewhere linked to it, (2) shortly after a 

crime had taken place, and (3) the totality of the facts known to the police officer 

objectively point to the suspect’s guilt in the commission of a felony or other breach of the 

peace under 14.03(a)(1).26

Analysis

The appellate court below found suppression warranted because the State relied on 

but failed to fulfill the requirements of Tex. Code Crim. Proc. 14.03(a)(1). We note again 

there was no hearing or evidence received by Judge Elliott, he simply relied on the record 

from the prior hearings. Although the question of exigent circumstances was never argued 

in the suppression briefs and hearing, the court below relied on our opinion in Swain v. 

State27 to require exigency as a required condition under the definition of “persons found 

25 Dyar, 125 S.W.3d at 468.

26 See Johnson, 722 at 420-21 (detailing how Johnson, an apartment maintenance 

employee, was placed under warrantless arrest after police determined that (1) Johnson roughly 

matched the witness’s description, (2) there was no sign of forced entry, (3) Johnson’s set of master 

keys were found in the hallway in front of the door to the murder scene, (4) Johnson arrived on the 

scene minutes after police and offered an odd explanation for being there, and (5) blood was found 

on his pants); Dyar, 125 S.W.3d at 197 (detailing how Dyar was arrested for DWI after he was 

found by police still bleeding from his mouth minutes after wrecking his truck and walking on foot 

to his nearby home). 

27 Swain v. State, 181 S.W.3d 359 (Tex. Crim. App. 2005).
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in suspicious places” in Article 14.03(a)(1). Thus, under the court of appeals’ 

interpretation, Article 14.03(a)(1) requires “(1) probable cause existed, (2) the person was 

found in a suspicious place, and (3) ‘exigent circumstances call for immediate action or 

detention by police.’”28 Opining that the State failed to provide evidence showing exigent 

circumstances (even though the question was never argued at the trial level),29 the court of 

appeals affirmed the suppression of the arrest and evidence flowing from it. 

The State now asks this Court to disavow Swain and remove the exigency 

requirement under Article 14.03(a)(1)’s “suspicious places.” Failing that, the State 

alternatively asserts that exigency exists under the facts of this case. Regardless of whether 

exigent circumstances are absolutely required under Article 14.03(a)(1), we find that there 

were exigent circumstances in this case to justify a warrantless arrest. If ever there was a 

case to be made for exigency, this case defines it. As a result, there is no need to disavow 

Swain at this time. Exigent circumstances to execute a warrantless arrest is supported 

throughout the record. Although there may be a case to made in the future with different 

facts that may not satisfy Article 14.03 (a)(1), those facts are not before us and there is no 

need to go down that road.

30 We are not in the business of issuing advisory opinions to 

unknown facts.

28 State v. McGuire, 586 S.W.3d 451, 457 (Tex. App.—Houston [1st Dist.] 2019) (quoting 

Swain v. State, 181 S.W.3d 359, 366 (Tex. Crim. App. 2005)). 

29 The only arguments heard by the trial judge consisted of whether the gas station was a 

“suspicious place” since that was not the crime scene. 

30 See e.g., Armstrong v. State, No. 05-21-00333-CR, 2022 WL 2816540 (Tex. App.—

Dallas July 19, 2022, pet. granted).
13

Probable Cause: Evidence Pointed to Appellee Like a Beacon

A review of the facts known to police show probable cause to arrest “pointed like a 

beacon toward[s]” Appellee.31 Though he was at a gas station, Appellee was only a short 

distance from the crash site—only a tenth of a mile away and only a short time after the 

estimated time of the crash. There were motorcycle parts lodged in the grill of his truck 

that he could not explain. Evidence at the crash site showed that Stidman, the victim, was 

hit while riding his motorcycle and was dragged roughly 829 feet. Stidman died at the 

scene. Appellee’s wife who was riding in the passenger seat during the collision told 

Appellee that he had “hit a person.” Furthermore, Appellee had made calls to his mother 

and two law enforcement friends and admitted that he “hit something.” In addition to 

finding a cooler full of beer in Appellee’s truck bed, police observed Appellee to have a 

strong odor of alcohol, bloodshot glassy eyes, and a dazed look on his face. Finally, 

Appellee refused to submit to standard field sobriety testing. These facts were sufficient to 

warrant an objectively prudent person to believe that Appellee had committed intoxication 

manslaughter if not felony murder. He had also failed to stop and render aid in a motor 

collision resulting in serious injury. Alternatively, police also had probable cause to believe 

that Appellee had unlawfully caused the death of another. Unlawfully causing the death of 

another, for the purposes of Article 14.03(a)(1), is at the very least a breach of the peace.

32

31 Parker, 206 S.W.3d at 597.

32 “Texas courts have defined and interpreted the term ‘breach of the peace’ to mean an act 

that threatens to disturb the tranquility enjoyed by the citizens.” Ste-Marie v. State, 32 S.W.3d 446, 
14

To the extent that the trial court found otherwise on either of these points was clearly 

erroneous.

Suspicious Place and Exigent Circumstances

The State argues on discretionary review that the court of appeals erred in affirming 

the trial court’s suppression when the issue of exigency was not raised nor ruled on by the 

trial court. Because Appellee never raised the issue, nor put them on fair notice that it was 

contested, there was no reason for the State to present evidence or call witnesses to testify 

towards exigency. Thus, the State argues that they were unfairly deprived of an “adequate 

opportunity to develop a complete factual record” regarding exigency.33 The State further 

argues that Article 14.03(a)(1) does not expressly contain an exigency requirement and that 

construing it to require exigency leads to absurd results. In response, Appellee argues that 

exigency actually was litigated in the trial court and that it is the fault of the State in 

choosing not to present further evidence of it.

We agree with the State in that they were not given fair notice of the exigency 

question which is not specifically mentioned in the statute. This unfairly deprived them of 

an adequate opportunity to develop a complete factual record. However, although the 

factual record regarding the question of exigency has not been completely developed, the 

existing factual record sufficiently establish that exigent circumstances exist here. As we 

449 (Tex. App.—Houston[14th Dist.] 2000, no pet.); see also Romo v. State, 577 S.W.2d 251 

(Tex. Crim. App. 1979) (finding DWI to be a breach of the peace under the Texas Penal Code).

 33 State v. Esparza, 413 S.W.3d 81, 90 (Tex. Crim. App. 2013). 
15

previously noted, based on these facts, exigency existed to make a warrantless arrest, and 

there is no need to ignore it. 

Exigent circumstances are circumstances that “call for immediate action or 

detention by police.” 34 Accordingly, fact-specific scenarios may fulfill 14.03(a)(1)’s 

exigency requirement where it is overly impractical for police officers to obtain an arrest 

warrant while still furthering the goals of the public good under the totality of the 

circumstances. 35 Factors that may be considered include (1) whether the subject of 

probable cause is likely to leave the scene, (2) whether evidence of criminality is likely to 

be destroyed, degraded, or lost, and (3) whether the subject of probable cause poses a 

continuing and present danger to others. 36 Other considerations may multiply the 

34 Swain, 181 S.W.3d at 366. 

35 See Kentucky v. King, 563 U.S. 452, 460 (2011) (allowing exception to the Fourth 

Amendment warrant requirement when the “exigencies of the situation make the needs of law 

enforcement so compelling that a warrantless search is objectively reasonable under the Fourth 

Amendment.”); Payton v. New York, 445 U.S. 573, 590 (allowing warrantless arrests inside a home 

if there are exigent circumstances). 

Although it was in a different type of Fourth Amendment event (blood draws), the Supreme 

Court in McNeely discussed and approved warrantless police action in fact specific scenarios not 

too different from the instant case:

We added that particularly in a case such as this, where time had to be taken to 

bring the accused to a hospital and to investigate the scene of the accident, there

was no time to seek out a magistrate and secure a warrant. Given these special facts, 

we found that it was appropriate for the police to act without a warrant. 

Missouri v. McNeely, 569 U.S. 141, 151 (2013) (internal citations and quotes omitted).

36 Dyar v. State, 125 S.W.3d 460, 471 (Tex. Crim. App. 2003) (Cochran, J., concur); see 

Swain, 181 S.W.3d at 366 (“Any ‘place’ may become suspicious [under Article 14.03(a)(1)] when 

a person at that location and the accompanying circumstances raise a reasonable belief that the 

person has committed a crime and exigent circumstances call for immediate action or detention 

by police.” (emphasis added)).
16

magnitude of the exigency such as how difficult or time-consuming it is to obtain a warrant 

in relation to the above factors. 

The totality of the facts in this case, though underdeveloped towards this point, show 

Appellee was in a “suspicious place” and exigent circumstances existed.37 Police were 

faced with investigating a roadway homicide likely induced by driving while intoxicated. 

Police were faced with the challenge of conducting at least a preliminary investigation at 

around 1:00 am in the dark of night on a poorly lit intersection. Their ability to preserve 

and recover as much physical evidence as possible was significantly diminished compared 

to during business hours and under broad daylight. As Trooper Tomlin testified, debris 

from the accident and other evidence, such as skid marks, trails of vehicle fluids, and 

roadway scratches, needed to be identified and recorded because they disappear over time. 

Furthermore, there were only four DPS troopers on duty in the entire county that night. 

And three of them, including Trooper Tomlin, were spread out over 829 feet of roadway 

37 We agree with Justice Keyes’s dissent from the First Court of Appeals regarding what 

constitutes a suspicious place:

‘Few places, if any, are inherently suspicious. The determination of whether a place 

is suspicious requires a highly fact specific analysis.’ As the Court of Criminal 

Appeals has explained, under article 14.03(a)(1),

Any place may become suspicious when an individual at the 

location and the accompanying circumstances raise a reasonable 

belief that the individual committed a crime and exigent 

circumstances call for immediate action or detention by the police.

McGuire, 586 S.W.3d 451, 466 (Tex. App.—Houston [1st Dist.] 2019) (Keyes, J., dissent) (first 

quoting Lewis v. State, 412 S.W.3d 794, 802(Tex. App.—Amarillo 2013, no pet.); and then quoting 

Swain, 181 S.W.3d at 366) (internal citations omitted). 
17

stretching from the point of impact to the final resting place of the motorcycle. According 

to Trooper Tomlin, it took the three troopers “a couple of hours” by mostly flashlight to 

finish investigating the scene.38 Though Appellee was cooperative to this point, there was 

no guarantee that he would not leave the scene at his earliest opportunity. And if he left in 

his vehicle, Appellee could have presented a danger to others. 

In addition to the need to collect and preserve physical evidence at the scene, there 

was also an increasing need to preserve evidence of intoxication in Appellee’s blood.39 In 

addition to the natural attrition of the level of blood alcohol content over time, any 

additional consumption of alcohol or other intoxicants would have detrimentally degraded 

the reliability of any later collected blood draw evidence. Because McNeely had not been 

decided by the Supreme Court, the officers investigating the scene could not have known 

38 According to Trooper Tomlin, a number of Fort Bend Sherriff’s deputies were also at 

the scene on the night of the collision, but they were mostly occupied with directing traffic (on an 

intersection near State Highway 99) so the investigating team of law enforcement wouldn’t be hit 

while investigating the scene. 

39 In a blood draw suppression hearing leading up to the first trial, after both attorneys 

offered their knowledge of how late-night warrants are obtained in the county, Judge 

Higginbotham concluded the following:

I’ve heard the argument of counsel and gone over your pleadings and these 

cases [including Missouri v. McNeely] that have been presented here. 

I believe that in this case, as I know it, that the police probably acted in 

accordance with what the law was at that time, as far as the Transportation Code.

Also, I think that there may have been exigent circumstances. I don’t know 

how. Was there a – was there a case, supreme court case, it doesn’t define exigent 

circumstances. I just know that it’s – that it is not defined as trying to do something 

about the dissipation of alcohol. And the totality of what I’ve heard here, I’m going 

to deny your supplemental motion to suppress.

Mar. 7, 2014 Pretrial Tr. 73 (emphasis added).
18

a warrant was required on the date in question. Nevertheless, they had ample information 

and evidence to form probable cause to arrest Appellee. All of the information that the 

police possessed, including the place in which he was found, “pointed like a beacon” 

towards Appellee and shining an inculpatory light upon him.

40 At the minimum, there was 

probable cause to arrest him for failure to stop and render aid. 

Blood was drawn somewhere between 2:00 and 3:00 am—roughly 90 minutes to 

more than two hours after the collision. This delay was without any time taken to obtain a 

warrant. Assertions by the attorneys for the State and Appellee with personal knowledge

suggest that obtaining a warrant Appellee’s arrest would have added potentially hours of 

more delay (and was thereby very impractical).41

During pretrial hearing on March 7, 2014, the attorneys (both having some prior 

personal experience in obtaining warrants) detailed the unpredictability and difficulty of 

obtaining a warrant in the middle of the night in Fort Bend County. Around the time of 

trial, the steps to obtaining a warrant included the following. Depending on the night, an 

assistant district attorney may or may not have been on call to assist with getting a warrant. 

If no assistant district attorney was available, the officer would have had to prepare the 

40 Parker, 206 S.W.3d at 597.

41 See McNeely, 569 U.S. at 156 (“[E]xigent circumstances justifying a warrantless blood 

sample may arise in the regular course of law enforcement due to delays from the warrant 

application process.”). We realize that McNeely only deals with the seizure of blood in a DWI 

investigation as opposed to the DWI arrest in this case. However, there are useful parallels in the 

determination of “exigency” that may be applicable here. 
19

warrant and affidavit themself and then contact a judge (from a list of judges and their 

phone numbers) to see if they were available to sign it. While there might have been a 

judge assigned to be “on call” for that night, according to the prosecutor, the “on call” 

judge was not always reliable or responsive. Trooper Tomlin testified that he was once 

unable to find a judge to sign off on a warrant in a prior instance in the middle of the night. 

The officer or on-call ADA would then drive to the judge’s house—however far that might 

be—and get the warrant signed before returning to the scene for its execution. Furthermore, 

while some judges in Fort Bend County were willing to transmit warrants by facsimile, per 

the prosecutor, at least some were unable or unwilling to do so.42 In summary, although 

there was no evidence regarding that specific night, the general added difficulty of getting 

a warrant at night combined with the type of crime and the need to preserve evidence are 

sufficient to demonstrate exigent circumstances under these specific facts. 

Conclusion

Under the facts of this case, the court of appeals below erred in finding suppression 

was warranted under Article 14.03(a)(1). We reverse the court of appeals and the trial 

court’s suppression of Appellee’s arrest and all evidence arising from it, and remand the 

case back to the trial court.

42 See id. at 154-55 (finding natural blood-alcohol dissipation to no longer automatically 

qualifies as an exigency in a DWI scenario but must instead be evaluated on a case-by-case basis—

after noting that search warrants can be obtained via electronic, telephonic, or radio 

communications but also acknowledging that electronic warrants may still be time-consuming and 

that “improvements in communications technology do not guarantee that a magistrate judge will 

be available when an officer needs a warrant after making a late-night arrest.”).
20

Delivered: February 21, 2024

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