1 In The 

### Court of Appeals Ninth District of Texas at Beaumont

____________________ NO . 09
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### ____________________ THE STATE OF TEXAS , Appellant
V. CHRISTOPHER LAMAR STEWART , Appellee

_______________________________________________________ ______________ On A ppeal from the 9th District Court Montgomery County, Texas Trial Cause No . 12
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- 08546 CR

________________________________________________________ _____________ MEMORANDUM OPINION In this appeal, the State challenges the trial court’s decision to suppress evidence

— a sample of Christopher Lamar Stewart’s blood

— seiz ed in a warrantless search following his arrest for driving while intoxicated

. T he State argues that under the circumstances, a warrant was not required ; it concludes the trial court abused its discretion in finding otherwise. For the reasons explained in
State v. Anderson , No. 09

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- 00400

- CR, 2014 Tex. App. LEXIS 11151 , **26

- 27 (Tex. App.

— Beaumont Oct. 8, 2014, no pet. h.) , we affirm the trial court’s orde r .2 Background
On an evening in May 2012, Jay Smith, a trooper employed by the Department of Public Safety, responded to a call about a car accident on FM 1484. When he arrived at the scene, he noticed a sedan on its roof in a ditch . The driver of the sedan , Stewart, was being treated in the back of an ambulance by emergency medical responders. Troop er Smith spoke to Stewart ; he noticed that Stewar t had an injury to his face, a strong odor of alcohol o n his breath , and red glassy eyes. Stewart told Trooper Smith that he had been driving , had been drinking , and that “he might have blacked out.” Trooper Smith administered the horizontal gaze nystagmus exam , a field sobriety test used by law enforcement

. Stewart exhibited six out of six clues on that exam , indi cating that Stewart’s ability to drive was impair ed

. O.D., who indicated that she had been following Stewart in another vehicle , was also on the scene when Trooper Smith arrived

. When he spoke to O.D., Trooper Smith noticed that she too had red glassy eyes and that she had the smell of alcohol on her breath. A fter doing field sobriety tests , Trooper Smith determined that O.D. was intoxicated and arrested her. On the way to the hospital where Stewart was taken , Trooper Smith learned that Stewart had three prior convictions for driving while intoxicated

. At the3 hospital, Trooper Smith also learned that the hospital had drawn a sample of Stewart’s blood

. After Stewart was given the statutory warnings 1 relat ing to Trooper Smith’s request for a voluntary sample , Stewart refused to give a sample of his blood

. According to Trooper Smith, “[a]t that point, statutory authorization, the mandatory blood specimen was used.” 2 See Tex. Transp. Code A nn. § 724.012(b)(3)(B) (West 2011). After the State ch arged Stewart with driving while intoxicated, Stewart filed a motion contending his Fourth Amendment rights were violated

. Stewart asked the trial court to suppress the test results from the sample Trooper Smith obtained at the hospital

. Relying on Missouri v. McNeely , 133 S.Ct. 1552 (2013), Stewart argued that absent exigent circumstances, an officer cannot legally draw a suspect’s blood without the person’s consent or a valid search warrant. Stewart

1 The statutory warning, referred to as the “ DIC 24 Mandated Statutory Warning, ” requires law enforcement officials to warn those arrested f or driving while intoxicated of the consequences of refusing to consent to the State’s request for a breath or blood specimen and that the officer, if refused the specimen, may ap p ly for a warran t authorizing a specimen to be taken

. See Tex. Transp. Code Ann. § 724.011 (West 2011), § 724.015 (West Supp. 2014 ).

2 Smith’s testimony is an apparent reference to section 724.012(b)(3)(B) of the Texas Transportation Code, which provides that the peace officer “s hall ” obtain a blood or breath specimen if the person being arrested for driving while intoxicated has, on two or more occasions, previously been convicted of or placed on community supervision for driving while intoxicated. Tex. Transp. Code A nn . § 724.012(b)(3)(B) (West 2011).4 claimed th at no exigent circumstances existed to excuse Trooper Smith’s failure to obtain a warrant

. In response, the State argued that section 724.012 of the Texas Transportati on Code authorized Trooper Smith to obtain the sample, given
Stewart ’s three prior convictions for driving while intoxicated

. See Tex. Transp. Code A nn. § 724.012(b)(3)(B)

. Additionally, t he State asserted that exigent circumstances existed to justify the warrantless search. Finally, the State suggests the trial court erred by failing to excuse Smith’s decision to conduct a warrantless search even if it violated Smith’s Fourth Amendment rights, arguing that Trooper Smith acted in good faith by rel ying on section 724.012 . According to the State , at the time Trooper Smith relied on the statute to conduct t he warrantless search at issue , McNeely had not been decided

. The trial court granted Stewart’s motion to
suppress. In its findings , the trial court concluded that the “blood specimen taken in this case was an invalid warrantless search and seizure in viol ation of [Stewart’s rights under the ] Fourth Amendment[.]” In four issues, the State contends the trial court abuse d its discretion by granting Ste wart’s motion to suppress

. In issues one and two, the State suggests that section 724.012 of the Transportation Code authorized Trooper Smith’s decision to obtain Stewart’s blood sample without a warrant regardless of whether5 exi gent circumstances existed. In issue t hree , t he State contends that it established that exigent circumstances existed with respect to the seizure at issue, allowing the State to conduct a warrantless search. In issue four , the State argues that the trial
court abused its discretion by rejecting Trooper Smith’ s explanation that he was acting under the authority he was given by the Transportation Code requir ing that he obtain a sample of Stewart’s blood, given Stewart’s prior convictions for driving while intoxicated. Standard of Review We review a trial court’s ruling on a motion to suppress under a bifurcated standard

. Turrubiate v. State , 399 S.W.3d 147, 150 (Tex. Crim. App. 2013).
F actual findings that a trial court made in a suppression hearing are reviewed using an abuse of discretion standard

. Id. Under that standard, the trial court’s determination of historical facts based on credibility assessments, when supported by the record, are given almost total deference

. Crain v. State , 315 S.W.3d 43, 48 (Te x. Crim. App. 2010). L egal questions and m ixed questions of law and fact that do not turn on credibility assessments are reviewed using a de novo standard. Id. In suppression hearings, t he trial court acts as the exclusive trier of fa c t and judge s the credibility of the witnesses. Maxwell v. State , 73 S.W.3d 278, 281 (Tex. Crim. App. 2002). Acting as the trier of fact, a t rial court may choose to believe or6 disbelieve all or any part of a witness’s testimony. State v. Ross , 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). In reviewing rulings from suppre ssion hearings, w e view the evidence in the light most favorable to the ruling, and we are obligated to uphold the ruling when it is supported by the record and is correct under any applicable theory of law. State v. Castleberry , 332 S.W.3d 460, 465 (Tex. Crim. App. 2011); Ross , 32 S.W.3d at 855

- 56. Analysis
T he Fourth Amendment to the U.S. Constitution provides protection from unreasonable searches. See Anderson , 2014 Tex. App. LEXIS 11151, at *10; see also U.S. Const. amend. IV. Only under certain specific exceptions are searches reasonable absent a warrant

. Anderson , 2014 Tex. App. LEXIS 11151, at **10

- 11 (citing Riley v. California , 134 S.Ct. 2473, 2482 (2014); McGee v. State , 105 S.W.3d 609, 615 (Tex. Crim. App. 2003)). It is the State’s burden t o show that a warrantless search falls within one of the permissible exceptions. McGee , 105 S.W.3d at 615

. In this case, the State asserts that section 724.012 of the Transportation Code authorize d Trooper Smith’s decision, given Stewart’s refusal, to obtain a sample of Stewart’s blood without a warrant

. T he State relies on subsection 724.012(b)(3)( B ) , which provides :7 (b) A peace officer shall require the taking of a specimen of the person’s breath or blood

. . . if the officer arrests the person for an offense under Chapter 49, Penal Code, involving the operation of a motor vehicle . . . 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 rece ives 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 49.065, Penal Code[.]
Tex. Transp. Code Ann. § 724.012(b)(3)( B ). We rejected the same statutory authorization argument the State raises in this case in Anderson ; nothing in the State’s brief indicates that we need to revisit th ose

same arguments here. Anderson , 2014 Tex. App. LEXIS 11151, at *26 ; see also McNeely , 133 S.Ct. at 1565

- 66

. For the reasons we explained in Anderson , issues one and two are overruled. In issue three , the State argues that Trooper Smith faced circumstances that required his immediate action , justify ing his failure to obtain a warrant

. However, the trial court , at the conclusion of the suppression hearing , concluded otherwise, noting “there was insufficient evidence of exigent or extenuating circumstances8 that would have prevented [Trooper ] Smith from obtaining a valid blood search warrant signed by a judge.”
In reviewing the trial court’s conclusion that exigent circumstances did not exist to j ustif y a warrantless search, we examine the “totality of the circumstances , ” and then analyze the facts o n a case - by

- case basis. See McNeely , 133 S.Ct. at 1556, 1558

- 59 , 1563. “We apply an objective standard of reasonableness to determine whether a warrantless search was justified, and we take into account the facts and circumstances known to the police at the time of the warrantless search.” Anderson , 2014 Tex. App. LEXIS 11151, at *31 (citing Colburn v. State , 966 S.W.2d 511, 519 (Tex. Crim. App. 1998)). Here, Trooper Smith was the only officer on the scene of a one

- vehicle accident that occurr ed around 11:15 p.m. Although he suspected Stewart of drinking and driving, he was then occupied at the scene by another driver who he also suspected had been driving while intoxicated. Although that driver, O.D., initially consented to Trooper Smith’s reque st for a voluntary blood sample, she later withdrew her consent.
A round 12:30 a.m., Trooper Smith contacted the on

- duty assistant district attorney at the jail about contact ing a judge to obtain a warrant for O.D’s blood

. Trooper Smith testified that the assistant district attorney told him that a judge was9 not available; however, the trial court, as the finder of fact, was free to reject Trooper Smith’s testimony that he was told a judge was not available . The trial court could have also reasonably conc lude d that even if the officer was told that no judge was available for O.D.’s case, a case involving no prior driving while intoxicated convictions, that did not mean that a judge would not necessarily have be en available under the circumstances involving Stewart’s case

. Stewart refused Trooper Smi t h’s request for a blood sample around 12:51

a.m. Trooper Smith did not attempt to contact the assistant district attorney again to request assistance in finding a judge to issue a warrant for Stewart’s blood

. At 1:30

a.m., Trooper Smith decided to obtain a mandatory blood sample because he believed the Transportation Code authorized him to do so without a warrant , given
Stewart’s three prior convictions. There was no evidence in the record that compelled the tr ial court to find that no judge would have been available had the circumstances of Stewart’s case been related to the assistant district attorney on call that night

. Based upon the testimony and evidence submitted at the suppression hearing, the trial court could have reasonably concluded that Trooper Smith decided to obtain the sample without a warrant because he thought he could do so under the Transpor t ation Code. Trooper Smith conceded that he did not attempt to10 obtain a search warrant for Stewart’s blood. Viewing the evidence in the light most favorable to the trial court’s ruling , and considering the trial court’s right to weigh and decide questions about the credibility of the evidence before it , and the amount of time that Trooper Smith had to seek a warrant authorizing him to obtain a sample of Stewart’s blood , the trial court’s decision to reject the State ’s claim that

no warrant was needed is a matter the trial court resolved in a reasonable manner . We overrule the State’s third issue.
In its fourth issue, the State argues the trial court failed to apply a good faith exception to the rule requiring it to exclude the evidence of an illegal search by granting Stewart’s motion. See Tex. Code Cr im. Proc. Ann. art. 38.23 (West 2005). We rejected this same argument in Anderson , and we explained that “[t]he stated exception in article 38.23(b) expressly applies only when a warrant has been issued by a neutral magistrate and the officer relied upon t he warrant. ” Anderson , 2014 Tex. App. LEXIS 11151, at *37. Because no warrant issued in Stewart’s case, the statutory exception found in article 38.23(b) does not apply. Id

. We overrule the State’s fourth issue. Having overruled all of the State’s issues, we affirm the trial court’s order.11 AFFIRMED.

_________________________ HOLLIS HORTON Justice

Submitted on June 12, 2014 Opinion Delivered November 12, 2014 Do Not Publish Before McKeithen, C.J., Horton and Johnson , JJ.