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In The

Court of Appeals

Ninth District of Texas at Beaumont

____________________

NO. 09-13-00421-CR

____________________

THE STATE OF TEXAS, Appellant

V.

CHRISTOPHER LAMAR STEWART, Appellee

_______________________________________________________ ______________

On Appeal from the 9th District Court 

Montgomery County, Texas

Trial Cause No. 12-08-08546 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—seized in a 

warrantless search following his arrest for driving while intoxicated. The 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. 09-13-00400-CR, 2014 Tex. App. LEXIS 11151, **26-27

(Tex. App.—Beaumont Oct. 8, 2014, no pet. h.), we affirm the trial court’s order.
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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. Trooper Smith spoke to Stewart; he noticed that Stewart had 

an injury to his face, a strong odor of alcohol on 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, indicating that Stewart’s ability to drive was 

impaired.

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. After 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 the 
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hospital, Trooper Smith also learned that the hospital had drawn a sample of 

Stewart’s blood. After Stewart was given the statutory warnings1 relating 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 Ann. § 

724.012(b)(3)(B) (West 2011).

After the State charged 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 

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The statutory warning, referred to as the “DIC 24 Mandated Statutory 

Warning,” requires law enforcement officials to warn those arrested for 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 

apply for a warrant authorizing a specimen to be taken. See Tex. Transp. Code 

Ann. § 724.011 (West 2011), § 724.015 (West Supp. 2014).

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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 “shall” 

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 Ann. § 

724.012(b)(3)(B) (West 2011).
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claimed that 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 

Transportation Code authorized Trooper Smith to obtain the sample, given 

Stewart’s three prior convictions for driving while intoxicated. See Tex. Transp. 

Code Ann. § 724.012(b)(3)(B). Additionally, the 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 relying on section 724.012. According to the State, at 

the time Trooper Smith relied on the statute to conduct the 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 violation of [Stewart’s

rights under the] Fourth Amendment[.]” 

In four issues, the State contends the trial court abused its discretion by 

granting Stewart’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 whether 
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exigent circumstances existed. In issue three, the 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 requiring 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). 

Factual 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 

(Tex. Crim. App. 2010). Legal questions and mixed questions of law and fact that 

do not turn on credibility assessments are reviewed using a de novo standard. Id.

In suppression hearings, the trial court acts as the exclusive trier of fact and 

judges 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 trial court may choose to believe or 
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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 suppression hearings, we 

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

The 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 to 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 

authorized Trooper Smith’s decision, given Stewart’s refusal, to obtain a sample of 

Stewart’s blood without a warrant. The State relies on subsection 

724.012(b)(3)(B), which provides:
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(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 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 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 those 

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, justifying 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 circumstances 
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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 justify a warrantless search, we examine the “totality of the 

circumstances,” and then analyze the facts on 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 occurred 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 request for a voluntary blood sample, she 

later withdrew her consent. 

Around 12:30 a.m., Trooper Smith contacted the on-duty assistant district 

attorney at the jail about contacting a judge to obtain a warrant for O.D’s blood.

Trooper Smith testified that the assistant district attorney told him that a judge was 
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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 concluded 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 

been available under the circumstances involving Stewart’s case.

Stewart refused Trooper Smith’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 trial 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 Transportation Code. Trooper Smith conceded that he did not attempt to 
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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 Crim. 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 the 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.
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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.