## I N T H E C O U R T O F C R I M I N A L A P P E A L S O F T E X A S

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T H E S T A T E O F T E X A S

v . D A V I D V I L L A R R E A L , A p p e l l e e

O N S T A T E ’ S P E T I T I O N F O R D I S C R E T I O N A R Y R E V I E W F R O M T H E T H I R T E E N T H C O U R T O F A P P E A L S

N U E C E S C O U N T Y
K E L L E R , P . J . , f

i l e d a d i s s e n t i n g o p i n i o n i n w h i c h H E R V E Y , J . , j o i n e d . The Supreme Court has cre ated a continuum of exceptions to the warr ant re quirement that inform the analy s i s in the prese nt case . (1) Parolee s are subject to war rantless, suspicionless, intrusive sear ches

. (2) Probationers are subject to war rantless intrusive sear ches if there is 1

rea sonable suspi cion to believe the y have c ommitt ed an of

fense

. (3) People a

rre sted on probable 2

cause for serious offe nses are subject to war rantless sear ches by the collection of DNA from a bucca l

Samson v. California , 547 U.S. 843 (2006) (se arc h of shirt pocke t). 1 United States v. Knights , 534 U.S. 112 (2001) (se arc h of apa rtment). 2VILLARREAL DISS ENT — 2

swab. I believe that the sear ch in this case falls betwee n the second and third cate g ories of case s. 3
I respe ctfully

dissent.
I n King , the Supreme Court re l i ed i n p art on an arr estee ’s reduc ed expectation of privac y wher e the arr estee was “alr eady in valid police custody for a serious offe nse supported by probable

cause .” The sear ch was analy zed by ref ere nce to “re asonable ness, not individualiz ed suspicion.” 4 5 Reasonable ness is deter

mined by weig hing “‘the promotion of l egit imate g overnme ntal interests’
ag ainst ‘the deg ree to which [t he sear ch] intrudes upon an individual’s privac y .’” The fac t that the 6 bucca l swab wa s minim ally intrusive weig hed hea

vily in the Court’s decision. 7 The sear ch in the prese nt case was more intrusive than the sear ch in King , but appellee was

more than simply an “ar

restee.” He had at least two prior convictions for DWI , and that is the
prec ise rea son that h e was subject to the mandatory -blood-dra w statute. The fac t of his prior convictions is what put this case be tween King and Knights

. I n Knights , the Supreme Court considere d the “tot ality of the circ umstances” to decide whether the war

rantless sear ch of a probationer ’s apar tment violated the Constit u ti on. Among other 8 things, the Court took into acc ount the high rec idivism rate of probationer s. The rele vant provision 9

Maryland v. King , 133 S.Ct . 1958 (2013). 3 Id. at 1970. 4 Id

. 5 Id. (quoting W

yoming v. Houghton , 526 U.S. 295, 300 (1999)) (bra ckete d materia l in King ). 6 Id. at 1969. 7 Knights , 534 U.S. at 118. 8 Id. at 120. 9VILLARREAL DISS ENT — 3

of t he Tex as st atute requires not just the pos sibili ty of re ci divism, but rec idivism in fac t, in that it require s a person to have been convicted of or place d on probation in two prior DWI case s. And the offe nse for which the person is under arr est must be an intox ication offe nse. I n Knights , the Court said, “[The State’s] interest in appre hending violators of the criminal law, there by protec ting potential victims of criminal enter prise, may there fore justifiably focus on probationer s in a way that it does not on the ordinary citizen.” 1 0 The question boils down to whether a per s o n with two prior DWI convictions is simil ar

en o u gh to a probationer that the totality of the circ umstances allows a sear ch that would not b e allowed for someone without that criminal re co rd

. Be fore King , that would have been a difficult position to defe nd. Now that the Supreme Court has held that the mere fac t that a person is arr ested for a serious offe nse justifies a war rantless, standardized, minimally intrusive sear ch, there appea rs to be room for a statute that permits a wa rra ntless, standardized, more intrusive sear ch of a person

arr ested for

DWI who has two prior

convictions for D WI

. The touchstone of the Four th Amendment is reas o n ab leness. Under the totality of the circ umstances, what happene d in this case does not strike me as unrea sonable. There fore, I
respe ctfully

dissent. Filed: Nove mber 26, 2014 Publis h

Id. at 121.

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