IN THE COURT

OF CRIMINAL APPEALS OF TEXAS

TROY SCOTT BURCIE, § 

APPELLANT § 

 § 

V. § PD-0723-15

 § 

THE STATE OF TEXAS, § 

APPELLEE § 

 

§ § § 

STATE'S PETITION FOR DISCRETIONARY REVIEW

§ § § 

SHAREN WILSON

Criminal District Attorney

Tarrant County, Texas

DEBRA WINDSOR, Assistant 

Criminal District Attorney

Chief, Post-Conviction

TANYA S. DOHONEY

Assistant Criminal District Attorney

Tim Curry Criminal Justice Center

401 W. Belknap

Fort Worth, Texas 76196-0201

(817) 884-1687 FAX (817) 884-1672

State Bar No. 02760900

ccaappellatealerts@tarrantcountytx.gov

LISA C. MCMINN, 

State Prosecuting Attorney 

ORAL ARGUMENT IS NOT REQUESTED 

PD-0723-15

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 7/15/2015 1:09:37 PM

Accepted 7/17/2015 1:20:30 PM

ABEL ACOSTA

CLERK
ii

IDENTITY OF THE PARTIES AND COUNSEL

The State of Texas is represented by the Hon. Sharen Wilson, 

Tarrant County Criminal District Attorney. Additionally, representing the 

State on appeal is the Hon. Tanya S. Dohoney, Assistant Criminal District 

Attorney and Hon. Debra Windsor, Post-Conviction Chief. At the trial level, 

Hon. Erin Cofer and Hon. Tanya S. Dohoney represented the prosecution. 

The State’s attorneys’ address is Office of the Criminal District Attorney of 

Tarrant County, Tim Curry Criminal Justice Center, 401 W. Belknap, Fort 

Worth, Texas 76196-0201. 

Appellant, Defendant below, is Troy Scott Burcie. Hon. Abe Factor, 

Factor & Campbell, 5719 Airport Freeway, Fort Worth, Texas, 76117

represented Appellant at trial and now on appeal. Hon. Tim Robinson, 

2010 N. Park Blvd., #112, Grapevine, Texas 76051 also represents 

Appellant on appeal. 

The Hon. Mollee Westfall, judge of the 371st Judicial District Court in 

Tarrant County, Texas, presided over Appellant’s case.
iii

SUBJECT INDEX

PAGE

IDENTITY OF THE PARTIES AND COUNSEL........................................... ii

SUBJECT INDEX ...................................................................................... iii

INDEX OF AUTHORITIES.......................................................................... v

STATEMENT REGARDING ORAL ARGUMENT........................................1

STATEMENT OF THE CASE .....................................................................2

STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE .............2

STATEMENT OF FACTS ...........................................................................3

QUESTIONS PRESENTED FOR REVIEW.................................................4

FIRST QUESTION FOR REVIEW ..............................................................4

Does a warrantless, nonconsensual blood draw conducted 

pursuant to TEX. TRANSP. CODE § 724.012(b) violate the Fourth 

Amendment? (1CR at 21, 81–82; 2RR at 5, 61) 

SECOND QUESTION FOR REVIEW .........................................................4

Are Fourth Amendment warrant-preference exceptions the sole 

measure of Fourth Amendment reasonableness in warrantless 

scenarios? (1CR at 21, 81–82; 2RR at 5, 61) 

THIRD QUESTION FOR REVIEW..............................................................4

Do exclusionary rule principles mandate suppression of blood 

evidence seized via a warrantless, nonconsensual, valid-at-thetime mandatory blood draw? (1CR at 21, 81–82; 2RR at 5, 61) 
iv

ARGUMENTS AND AUTHORITIES............................................................5

I. Valid, compelled statutory blood draw ...............................................6

A. Codification of Fourth Amendment principles............................7

B. Special-needs framework adds to the reasonableness 

calculation ................................................................................9

C. Erroneous consideration of the “Less Intrusive Means” 

test .........................................................................................10

II. Implied-consent draws are reasonable ............................................11

III. Exclusionary rule inapplicable and not invoked................................13

CONCLUSION AND PRAYER..................................................................16

CERTIFICATE OF COMPLIANCE............................................................17

CERTIFICATE OF SERVICE....................................................................17

APPENDIX ................................................................................................ A
v

INDEX OF AUTHORITIES

Cases

Breithaupt v. Abram,

352 U.S. 432 (1957) .................................................................................13

Burcie v. State, 

No. 08-13-00212-CR, 2015 WL 2342876

(Tex. App.—Fort Worth Mar. 14, 2015)...................................................3, 5

Cole v. State,

454 S.W.3d 89 (Tex. App.—Texarkana 2014, pet. granted)..................5n, 6

Davis v. United States,

564 U.S. ___, 131 S. Ct. 2419 (2011).......................................................14

Douds v. State,

434 S.W.3d 842 

(Tex. App.—Houston [14th Dist.] June 5, 2014, pet. granted)...............5n, 6

Heien v. North Carolina,

___ U.S. ___, 135 S. Ct. 530 (2014)...................................................15, 16

Holidy v. State,

No. 06-13-00261-CR, 2014 WL 1722171 

(Tex. App.—Texarkana Apr. 30, 2014, pet. granted)

(mem. op., not designated for publication)................................................5n

Hulit v. State,

982 S.W.2d 431 (Tex. Crim. App. 1998) .............................................11, 12

Illinois v. Krull,

480 U.S. 340 (1987) .................................................................................14

Maryland v. King,

569 U.S. ___, 133 S. Ct. 1958 (2013).......................................................12
vi

McGee v. State,

105 S.W.3d 609 (Tex. Crim. App. 2003) ...................................................12

McGruder v. State,

No. 10-13-00109-CR, ___ S.W.3d ___, 2014 WL 3973089

(Tex. App.—Waco 2014, pet. granted) .....................................................5n

Michigan Dept. of State Police v. Sitz,

496 U.S. 444 (1990) .................................................................................12

Michigan v. DeFillippo,

443 U.S. 31 (1979) ...................................................................................15

Miles v. State,

241 S.W.3d 28 (Tex. Crim. App. 2007) .......................................................7

Missouri v. McNeely,

569 U.S. ___, 133 S. Ct. 1552 (2013)................................................passim

Reeder v. State,

428 S.W.3d 930 (Tex. App.—Texarkana 2014, pet. granted)....................5n

Segundo v. State,

270 S.W.3d 79 (Tex. Crim. App. 2008), 

cert. denied, 558 U.S. 828 (2009).............................................................12

Skinner v. Railway Labor Executives' Ass'n,

489 U.S. 602 (1989) ....................................................................... 9, 10, 11

Smith v. State,

No. 13-11-00694-CR, ___ S.W.3d ___, 2014 WL 5901759 

(Tex. App.—Corpus Christi 2014, pet. granted) ........................................5n

Sotelo v. State, 

913 S.W.2d 507, 510 (Tex. Crim. App. 1995) .........................................13n

State v. Villarreal,

PD-0306-14, ___ S.W.3d ___, 

2014 WL 6734178 (Tex. Crim. App. 2014).........................................passim
vii

Tharp v. State,

935 S.W.2d 157 (Tex. Crim. App. 1996) ...............................................9, 10

Vernonia School Dist. 47J v. Acton,

515 U.S. 646 (1995) .................................................................................10

Weems v. State,

434 S.W.3d 655 (Tex. App.—San Antonio 2014, pet. granted)............5n. 6

Welsh v. Wisconsin,

466 U.S. 740 (1984) ...................................................................................8

Statutes, Rules, Constitutions

TEX. CODE CRIM. PROC. art. 14.04................................................................8

TEX. CODE CRIM. PROC. art. 18.16................................................................7

TEX. CODE CRIM. PROC. art. 38.23........................................................14, 16

TEX. PENAL CODE § 1.07............................................................................14

TEX. PENAL CODE § 49.04........................................................................2, 7

TEX. PENAL CODE § 49.09........................................................................2, 7

TEX. TRANS. CODE § 524.012.......................................................................9

TEX. TRANS. CODE § 724.012..............................................................passim

TEX. R. APP. P. 66.3 ....................................................................................6

U.S. CONST. amend. IV .........................................................................8, 11
1

IN THE COURT

OF CRIMINAL APPEALS OF TEXAS

TROY SCOTT BURCIE, § 

APPELLANT § 

§ 

V. § PD-0723-15

§ 

THE STATE OF TEXAS, § 

APPELLEE § 

STATE’S PETITION FOR DISCRETIONARY REVIEW

TO THE HONORABLE JUDGES OF 

THE COURT OF CRIMINAL APPEALS:

Comes now the State of Texas, by and through her Tarrant County 

Criminal District Attorney, and respectfully urges this Court to grant 

discretionary review of this cause in accordance with the rules of appellate 

procedure.

STATEMENT REGARDING ORAL ARGUMENT

Although the reasonableness of statutory mandatory blood draws 

merits argument, this Court has already granted petitions on similar issues 

and heard arguments from other parties regarding the issues discussed 

herein. Hence, the State does not request argument in this case. 
2

STATEMENT OF THE CASE

Appellant pled guilty to felony driving while intoxicated [DWI]. TEX.

PENAL CODE §§ 49.04, 49.09.1 (CR1:87–91, 93–94). At the time of the 

offense, officers seized Appellant’s blood pursuant to the mandatory blood 

draw contained in Texas’ implied consent law. TEX. TRANSP. CODE

§724.012(b)(3). Before the El Paso Court of Appeals, Appellant relied on 

the Supreme Court’s McNeely decision. Missouri v. McNeely, 569 U.S. 

___, 133 S. Ct. 1552 (2013). The germane facts are undisputed, that is, 

that the State relied on Texas’ mandatory blood-draw statute to support the 

instant warrantless seizure. (2RR). 

Appellant’s claim stems from an adverse pretrial ruling. (1CR at 93–

95). Following the May 2013 suppression hearing, the trial judge rejected 

the defense argument attacking the validity of blood seized pursuant to the 

Texas implied-consent statute. (1CR at 21, 81–82; 2RR at 5, 61). 

Appellant later pled guilty pursuant to an agreement with the prosecution; 

this appeal ensued. (1CR at 93–95). 

STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE

The El Paso Court of Appeals reversed the trial court’s suppression 

ruling in an unpublished opinion authored by Chief Justice Ann Crawford 

 

1

 Statutory references cited throughout refer to the current version unless noted. 
3

McClure; Justices Rodriguez and Hughes rounded out the panel. Burcie v. 

State, No. 08-13-00212-CR, 2015 WL 2342876 (Tex. App.—Fort Worth 

Mar. 14, 2015). No one sought rehearing. The State timely files this 

petition, following one extension.

STATEMENT OF FACTS

Appellant’s felony DWI arose when an officer saw him driving without 

his headlamps illumined. (2RR at 7–8). After the stop, the Fort Worth 

officer discovered facts leading him to believe that Appellant drove while 

intoxicated (slurred speech, bloodshot eyes, aroma of alcohol). (2RR at 8–

13). In the subsequent DWI investigation, the arresting officer sought a 

mandatory specimen under the Texas implied-consent law because: 1) he 

harbored probable cause to believe that Appellant committed DWI; 2) he 

had received reliable information regarding Appellant’s two prior DWI 

convictions; and 3) Appellant refused to provide a specimen. (2RR at 12–

13, 15–17, 19, 28–31). Therefore, an officer transported Appellant to the 

county hospital for a compelled blood draw. TEX. TRANSP. CODE

§ 724.012(b)(3). (2RR at 18–22, 25–26, 32–38; 3RR at SX2, SX3). 

Additional evidence revealed that Fort Worth police officers have 

experience obtaining blood draw warrants and procedures in place to 
4

facilitate such warrants. (2RR at 26–27, 33, 50–52). However, the 

arresting officer did not seek a warrant because he relied on the existing 

mandatory provisions of the Texas implied-consent statute. (2RR at 19,

27, 29, 36). 

QUESTIONS PRESENTED FOR REVIEW

FIRST QUESTION FOR REVIEW

Does a warrantless, nonconsensual blood draw

conducted pursuant to TEX. TRANSP. CODE § 724.012(b)

violate the Fourth Amendment?

(1CR at 21, 81–82; 2RR at 5, 61) 

SECOND QUESTION FOR REVIEW

Are Fourth Amendment warrant-preference exceptions 

the sole measure of Fourth Amendment reasonableness 

in warrantless scenarios?

(1CR at 21, 81–82; 2RR at 5, 61)

THIRD QUESTION FOR REVIEW

Do exclusionary rule principles mandate suppression of

blood evidence seized via a warrantless, nonconsensual,

valid-at-the-time mandatory blood draw? 

(1CR at 21, 81–82; 2RR at 5, 61)
5

ARGUMENT AND AUTHORITIES

This Court is in the midst of grappling with the issues presented 

herein. Whilst a November 2014 decision addressed the merits of the 

Fourth Amendment issue in one of the several McNeely-related cases then 

pending, what appeared decided is now in flux since the Court granted –

2014 WL 6734178 (Tex. Crim. App. 2014) (reh’g granted, re-submitted 

Mar. 18, 2015).2

 The El Paso court’s May decision heavily relied on 

this Court’s original Villarreal opinion. Burcie, 2015 WL 2342876, at *1–4.

The State’s instant petition focuses on two aspects of any McNeelyrelated consequences: the validity of a statutorily-compelled draw and the 

invalidity of the exclusionary rule’s application. Villarreal only resolved the 

merits of the mandatory-draw issue, not addressing the applicability of the 

 

2 Additionally, the appellate milieu includes six other submitted McNeely-inspired cases, 

with yet another case granted and waiting in the wings for submission. Douds v. State, 

434 S.W.3d 842 (Tex. App.—Houston [14th Dist.] June 5, 2014, pet. granted) 

(submitted on arguments Mar. 13, 2015, PD-0857-14); Weems v. State, 434 S.W.3d 

655 (Tex. App.—San Antonio 2014, pet. granted) (submitted on arguments Nov. 19, 

2014, PD-0635-14); Reeder v. State, 428 S.W.3d 930 (Tex. App.—Texarkana 2014, 

pet. granted) (submitted on arguments Jan. 14, 2015, PD-0601-14); Smith v. State, No. 

13-11-00694-CR, ___ S.W.3d ___, 2014 WL 5901759 (Tex. App.—Corpus Christi 2014, 

pet. granted) (submitted Apr. 29, 2015, PD-1615-CR); McGruder v. State, No. 10-13-

00109-CR, ___ S.W.3d ___, 2014 WL 3973089 (Tex. App.—Waco 2014, pet. granted) 

(submitted Apr. 15, 2015, PD-1263-14); Holidy v. State, No. 06-13-00261-CR, 2014 WL 

1722171 (Tex. App.—Texarkana Apr. 30, 2014, pet. granted) (mem. op., not designated 

for publication) (submitted on arguments Jan. 14, 2015, PD-0622-14); see also Cole v. 

State, 454 S.W.3d 89 (Tex. App.—Texarkana 2014, pet. granted Apr. 22, 2015) 

(briefing in progress, PD-0077-15).
6

exclusionary rule. Villarreal, 2014 WL 6734178. Nevertheless, that issue 

is already before this Court. See Cole, 454 S.W.3d at 89 (fourth ground 

granted); see also Weems, 434 S.W.3d at 666 (applying exclusionary rule); 

Douds, 434 S.W.3d at 861–62 (same). In other words, this Court has 

already granted review on both issues presented herein. 

This Court should grant review because this case focuses on: 

important legal questions that have not yet been finally addressed; matters 

in conflict in the interim appellate courts; the misinterpretation of a Supreme 

Court decision; and the misapplication of that Supreme Court case to 

Texas implied-consent statute. TEX. R. APP. P. 66.3(a)(b)(c)(d)(f). 

I. Valid, compelled statutory blood draw

The State’s appellate stance is in lockstep with that of prosecutors 

from other counties across the State who have already had cases granted 

for review on a McNeely-related issue. Hence, the State respectfully asks 

this Court to dispose of the instant case in a manner consistent with the 

petitions in Villarreal, Douds, Weems, Reeder, Smith, McGruder, Holidy, 

and Cole. Here, the officer reasonably relied on an existing, ubiquitous 

narrowly-focused, reasonable statute to obtain a compelled blood draw. 

The seizure occurred when the officer—at the time of the offense—

possessed probable cause that Appellant’s impaired and intoxicated 
7

conduct constituted felony DWI. TEX. PENAL CODE §§ 49.04, 49.09; TEX.

TRANSP. CODE § 724.012(b)(2). 

In addition, the State differs with Villarreal’s original-submission 

decision and further asserts that several important arguments should be 

considered on the merits. 

A. Codification of Fourth Amendment principles

Villarreal failed to consider that the implied-consent statute codified 

Fourth Amendment principles. For instance, this Court has previously 

recognized a statutory codification of the exigency exception. See Miles v. 

State, 241 S.W.3d 28, 39–40 n.54 (Tex. Crim. App. 2007) (citing TEX. CODE 

CRIM. PROC. art. 18.16). McNeely recognized that every case involving the 

dissipation of alcohol included some exigency. McNeely, 133 S. Ct. at 

1561, 1568. This ever-present exigency must be considered when 

assaying the reasonableness of statutory draws. 

Combine the static alcohol-evaporation-exigency consideration with 

the Legislature’s clear codification of the gravity-of-the-offense exigency. 

The implied-consent statute extinguished a defendant’s right to refuse 

where an officer possesses probable cause to believe that certain 

enumerated, egregious circumstances exist. TEX. TRANSP. CODE 

§ 724.012(b). Defendants only lose their refusal right under carefully 
8

circumscribed scenarios involving felonious intoxication-related offenses 

and/or resultant injuries necessitating hospitalization. Id. The statute only 

applies to the most serious categories of DWI offenders.

This statutory limitation amounts to a codification of an additional 

recognized exigency unrelated to blood-alcohol dissipation. Welsh v. 

Wisconsin held that the Fourth Amendment authorizes common-sense 

consideration of the underlying offense’s gravity when weighing the 

existence of an exigency. Welsh v. Wisconsin, 466 U.S. 740, 751–52 

(1984) (exigency calculations include consideration of a crime’s severity). 

Consideration of a crime’s gravity is the essence of reasonableness 

because the State’s interest is greater in a more serious case. Cf. TEX.

CODE CRIM. PROC. art. 14.04 (authorizing warrantless arrests for felonies 

where an officer did not observe the offense). 

Of course, it almost goes without saying that Texas’ implied-consent 

legislation codified Fourth Amendment probable cause requirements. U.S.

CONST. amend. IV. Predicate elements of the implied consent statute 

codify this well-known quantum-of-evidence as a requirement for a 

compelled search. TEX. TRANSP. CODE § 724.012(b). The probable cause 

requirement—in tandem with the codified gravity-of-the-crime and 

dissipation-of-alcohol exigencies—creates a neutral, non-arbitrary 
9

framework authorizing a narrowly-defined seizure from an already-incustody arrestee. These refinements in the implied-consent statutes 

structure embrace the essence of Fourth Amendment reasonableness. 

B. Special-needs framework adds to the reasonableness 

calculation

The now-withdrawn Villarreal decision rejected application of the 

Supreme Court’s special needs doctrine to the mandatory blood draw 

framework. Villarreal, 2014 WL 6734178, at *14–15; see Skinner v. 

Railway Labor Executives’ Ass’n, 489 U.S. 602, 619 (1989). However, the 

Court did not consider that blood drawn pursuant to Chapter 724’s mandate 

also implicates administrative license revocation [ALR] procedures, a 

separate regulatory process that focuses on protecting the traveling public 

by removing offenders from the road. See TEX. TRANSP. CODE

§ 524.012(b)(1) (mandating license suspension based upon BAC). 

“The primary purpose of the administrative license suspension statute 

is not to deter the licensee or to seek retribution, but to protect the public 

from the carnage on the public roads of Texas caused by drunk drivers.” 

Tharp v. State, 935 S.W.2d 157, 159 (Tex. Crim. App. 1996). Such 

regulation focuses on the government’s strong interest in removing 

intoxicated drivers from the road, just as railroad regulation in Skinner
10

sought to increase railway safety by detecting intoxicated employees. 

Compare Skinner, 489 U.S. at 620–21 with Tharp, 935 S.W.2d at 159. 

Special needs’ principles recognize the statute’s provision of a 

neutral, detached vehicle for protecting citizens from impaired drivers and 

defendants from unfettered discretion. The special-needs exception 

constitutes another factor to consider in a non-dualistic analysis that 

renders Texas’ compelled-draw framework reasonable. 

C. Erroneous consideration of the “Less Intrusive 

Means” test

The original Villarreal decision considered the ready availability of 

warrants when rejecting the validity of Texas’ mandatory draw statute. 

Villarreal, 2014 WL 6734178, at *18 (finding no compelling need to uphold 

warrantless, nonconsensual blood searches where warrants are “often 

readily available”). However, factors such as electronic warrants and the 

availability of a magistrate shift the focus away from an officer’s conduct 

and, instead, weigh considerations of alternative means. But see McNeely, 

133 S. Ct. at 1560–64 (Part IIB’s alternative means analysis applied when 

determining whether per se exigency existed). 

The Supreme Court resoundingly rejected applying less-intrusivealternative-practices arguments to Fourth Amendment cases not resolved 

under the exigency exception. Vernonia School Dist. 47J v. Acton, 515 
11

U.S. 646, 663–64 n.3 (1995) (upholding warrantless, random urine 

screening of athletes after considering diminished privacy, 

unobtrusiveness, and severity of need, spurning arguments relying on less 

intrusive alternatives); Skinner, 489 U.S. at 629 n.9 (upholding random, 

suspicionless drug screening of railway employees under special needs 

exception and discarding less-drastic-and-equally-effective-means 

arguments). One footnote in Skinner flatly debunks the propriety of 

considering less-drastic alternatives in scenarios that include warrantless 

and even suspicionless seizures for toxicological testing, similar to 

Appellant’s facts. Id. 

The State maintains that less-restrictive-alternatives logically apply 

when a seizure’s validity rests solely on the temporal factors presenting an 

exigency; less-drastic, post-hoc what-ifs do not apply, however, to 

reasonableness calculations factoring in other warrantless exceptions. 

Hence, Villarreal’s analysis mistakenly applied this eschewed construct. 

II. Implied-consent draws are reasonable

Reasonableness has always been the linchpin of the Fourth 

Amendment, venerated in the provision’s plain language. U.S. CONST. 

amend IV; Hulit v. State, 982 S.W.2d 431, 435–36, 438 (Tex. Crim. App. 

1998). Discernment of what is “reasonable” requires courts to consider the 
12

balance between an individual’s privacy and legitimate governmental 

interests, especially when public safety is of utmost concern. See 

Maryland v. King, 569 U.S. ___, 133 S. Ct. 1958, 1979 (2013); Michigan 

Dept. of State Police v. Sitz, 496 U.S. 444, 455 (1990); Segundo v. State, 

270 S.W.3d 79 (Tex. Crim. App. 2008), cert. denied, 558 U.S. 828 (2009). 

Villarreal viewed the choice between applying a Fourth Amendment 

exception and consideration of a reasonableness balancing approach as 

mutually exclusive analytical constructs. The State respectfully believes 

that this black-white consideration of these two concepts is mistaken, 

especially in light of the fact that this Court has relied upon the balancing 

approach to assay reasonableness on similar issues. See Segundo, 270 

S.W.3d at 96–99; McGee v. State, 105 S.W.3d 609 (Tex. Crim. App. 2003); 

Hulit, 982 S.W.2d at 434 n.1, 436. 

Again, the statute is reasonable. Years ago, the Supreme Court 

recognized that a framework requiring a driver’s consent was anything but 

nonsensical. The Breithaupt court pointed to then recently adopted 

implied-consent provisions and wrote: 

It might be a fair assumption that a driver on the highways in 

obedience to a policy of the State, would consent to have a 

blood test made as part of a sensible and civilized system 

protecting himself as well as other citizens not only from the 

hazards of the road due to drunken driving, but also from some 

use of dubious lay testimony.
13

Breithaupt v. Abram, 352 U.S. 432, 435 n.2 (1957). The State contends 

that compelled draws under implied-consent provisions are inherently 

reasonable when weighing the needs of all involved. Indeed, Fourth 

Amendment reasonableness underpins the statute. The well-known 

exceptions—as argued in the myriad cases already before this Court—

considered individually and in concert with each other, alongside a 

balancing of the competing interests, all support the continued viability of 

Texas’ implied-consent framework. 

III. Exclusionary rule inapplicable and not invoked3

Statutory mandatory blood-draws are reasonable. But see Villarreal, 

2014 WL 6734178 (opinion on original submission; under re-submission). 

When the ink dries on Villarreal and future McNeely-related decisions and if 

those cases are adverse to the State on the merits, the rules requiring 

evidence exclusion should not apply to mandatory blood-draw scenarios 

that occurred prior to the Supreme Court’s April 2012 pronouncement.

Federally, the good-faith exception to the Fourth Amendment’s 

exclusionary rule applies when law enforcement, at the time of the search, 

 

3 Although unnecessary for preservation purposes, the State notes that it voiced this 

exclusionary rule argument below. See Sotelo v. State, 913 S.W.2d 507, 510 (Tex. 

Crim. App. 1995). The El Paso Court refrained from considering this issue, however. 

Burcie, 2015 WL 2342876, at *1-4.
14

acted with objectively reasonable reliance on (1) a statute, later declared 

unconstitutional, or (2) binding judicial precedent, subsequently overruled. 

Illinois v. Krull, 480 U.S. 340, 349–57 (1987) (statutes); Davis v. United 

States, 564 U.S. ___, 131 S. Ct. 2419, 2428–34 (2011) (caselaw). 

Under state law, the Texas exclusionary rule is not invoked 

because—at the time of the offense—no violation occurred. The State 

recognizes that article 38.23(b)—Texas’ limited good faith exception—

requires a warrant. TEX. CODE CRIM. APP. § 38.23(b). Notwithstanding, 

invocation of exclusionary rule principles relies on article 38.23(a). That 

subsection’s plain language requires a violation for exclusion to be

triggered. When Appellant’s blood was drawn, no one credibly questioned 

the validity of the officer’s statutory authority. In other words, at the time of 

the seizure, the officer followed then-existing law. See TEX. CODE CRIM.

PROC. art. 38.23(a); see also TEX. PENAL CODE § 1.07(a)(30) (defining “law” 

as meaning the state and federal constitution and statutes, in addition to 

the written opinions of a court of record); see also Davis, 131 S. Ct. at 

2427–28 (“obtained” applies to unlawfulness at the time of the seizure; 

exclusion not triggered in an absence of police culpability). Simply put, the 

instant circumstances do not invoke exclusion. 
15

The Supreme Court mentioned, in dictum, the application of the 

exclusionary rule versus Fourth Amendment violations in a non-blood-draw 

scenario decided recently. In Heien, the Court weighed the validity of an 

investigatory stop where the officer misunderstood the traffic code provision 

he relied on to support the stop. See Heien v. North Carolina, ___ U.S. 

___, 135 S. Ct. 530, 538–39 (2014). The Supreme Court considered the 

reasonableness of the officer’s mistake that lead to the stop and arrest 

when considering remedies. In so doing, the Court pointed out the myriad 

decisions finding exclusionary-rule invocation inappropriate where the 

officer’s conduct—valid at the time—was later declared unconstitutional. 

Id. With only one justice dissenting, the Supreme Court’s decision 

pondered the exclusionary rule’s limits which had been briefly considered in 

Michigan v. DeFillippo. Heien, 135 S. Ct at 538–39; see generally

Michigan v. DeFillippo, 443 U.S. 31, 3–9 (1979) (suggesting that exclusion 

might have been appropriate had the provision been “grossly and flagrantly 

unconstitutional”). 

Although the Heien discussion is merely dicta, it reiterates the 

importance of focusing on the fact that the instant officer’s conduct fully 

complied with mandatory, settled law at the time of Appellant’s arrest. 

Heien, 135 S. Ct. at 538–39. McNeely and subsequent caselaw 
16

questioning implied-consent blood draws came later. Since, no violation 

occurred at the time of the Appellant’s 2011 blood draw, Texas’ 

exclusionary provision does not apply. TEX. CODE CRIM. PROC. art. 

38.23(a). And since any legal error by the officer was reasonable, Fourth 

Amendment cases do not mandate the remedy of exclusion. See Heien, 

135 S. Ct. at 539. 

CONCLUSION AND PRAYER

Review should be granted and the decision of the Court of Appeals 

should be reversed; Appellant’s felony DWI conviction should be upheld.

Respectfully submitted,

SHAREN WILSON

Criminal District Attorney

Tarrant County, Texas

DEBRA WINDSOR, Assistant 

Criminal District Attorney

Chief, Post-Conviction

/s/ Tanya S. Dohoney 

TANYA S. DOHONEY

Assistant Criminal District Attorney

Tim Curry Criminal Justice Center

401 W. Belknap

Fort Worth, Texas 76196-0201

(817) 884-1687

FAX (817) 884-1672

State Bar No. 02760900

ccaappellatealerts@tarrantcountytx.gov
17

CERTIFICATE OF COMPLIANCE

This document complies with the typeface requirements of TEX. R.

APP. P. 9.4(e) because it has been prepared in a conventional typeface no 

smaller than 14-point for text and 12-point for footnotes. This document 

also complies with the word-count limitations of TEX. R. APP. P. 9.4 (i) 

because it contains less than 3500 words, excluding any parts exempted 

by TEX. R. APP. P. 9.4(i)(1), as computed by Microsoft Word, the computer 

software used to prepare the document.

/s/ Tanya S. Dohoney 

TANYA S. DOHONEY

CERTIFICATE OF SERVICE

A true copy of the State's petition for discretionary review has been eserved to opposing counsel, the Hon. Abe Factor, lawfactor@yahoo.com, 

5719 Airport Freeway, Fort Worth, Texas, 7611, on this, the 15th day of July

2015.

/s/ Tanya S. Dohoney 

TANYA S. DOHONEY

H:\DOHONEY.D11\PDRS\063015 burcie mcneely pdr and tables.docx
A

APPENDIX

Troy Scott Burcie v. State,

2015 WL 2342876

(Tex. App.—El Paso 2015)
Burcie v. State, Not Reported in S.W.3d (2015)

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

2015 WL 2342876

Only the Westlaw citation is currently available.

SEE TX R RAP RULE 47.2 FOR DESIGNATION 

AND SIGNING OF OPINIONS.

(DO NOT PUBLISH)

Court of Appeals of Texas,

El Paso.

Troy Scott Burcie, Appellant,

v.

The State of Texas, Appellee.

No. 08–13–00212–CR | May 14, 2015

Appeal from 371st District Court of Tarrant County, 

Texas (TC # 1287926D)

Attorneys and Law Firms

Charles M. Mallin, Tanya S. Dohoney, for The State of 

Texas.

Abe Factor, Tim Robinson, for Troy Scott Burcie.

Before McClure, C.J., Rodriguez, and Hughes, JJ.

OPINION

ANN CRAWFORD McCLURE, Chief Justice

*1 This DWI case presents an issue which has percolated 

through the courts of appeals, and which now has been 

resolved by the Texas Court of Criminal Appeals: can the 

State, consistent with the Fourth Amendment to the U.S. 

Constitution, take an involuntary blood sample based only 

upon the Texas implied consent statute? 

TEX.TRANSP.CODE ANN. § 724.012(b)(West 2011). 

Following the Texas Court of Criminal Appeals recent 

answer to that question in State v. Villarreal, No. 

PD–0306–14, 2014 WL 6734178 (Tex.Crim.App. Nov. 

26, 2014, pet.granted), we reverse the conviction below.

FACTUAL SUMMARY

The underlying facts are uncontested. Appellant was 

indicted for felony DWI, having had two prior 

convictions. The indictment arose out of Appellant’s 

arrest on July 2, 2012. Officer Reyes of the Fort Worth 

Police Department initiated a traffic stop when he 

observed Appellant driving without headlights at 10:10 

p.m. in the evening.1 Based on Appellant’s slurred speech, 

bloodshot eyes, and the odor of alcohol, Officer Reyes 

performed a field sobriety test. Appellant gave six of six 

positive clues for intoxication on the horizontal gaze 

nystagmus test; eight of eight clues on the walk and turn 

test; and three of seven clues on standing on one leg test. 

Appellant claimed at the time to have had “one beer with 

dinner.”

1 This case was transferred from our sister court in Fort 

Worth pursuant to the Texas Supreme Court’s docket 

equalization efforts. See Tex. Gov’t Code Ann. § 

73.001 (West 2013). We follow the precedents of the 

Fort Worth Court to the extent they might conflict with 

our own. See Tex.R.App. P. 41.3.

The officer placed Appellant under arrest at 10:50 p.m. A 

pat down search turned up a prescription pill bottle 

belonging to Appellant, but which contained a 

non-matching medication identified as OxyContin. The 

officer transported Appellant to the City jail where a 

blood sample was requested, but refused by Appellant. A 

criminal history check turned up two prior DWIs.

Based on the two prior DWIs, and Section 742 of the 

Transportation Code, the officer took Appellant to a local 

hospital where a blood sample was taken without his 

consent at 12:19 a.m. Officer Reyes’ testimony makes 

clear that the Transportation Code was the single basis for 

obtaining the blood draw:

Q. Okay. And is it your understanding that—or tell 

me why you were going to get a blood specimen 

from him.

A. Well, at that point he was—he already had two 

prior convictions. He was arrested for DWI. So at 

that time we—it’s a mandatory specimen. Even 

though he—he did not want to provide one, we have 

to, by law at the time, get one from him, and that’s 

what we were doing.

Q. Okay. And so you were following what you 

believed to be the law in requiring you to get a blood 

specimen?

A. Yes, ma’am.
Burcie v. State, Not Reported in S.W.3d (2015)

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

Fort Worth has a procedure in place to obtain a warrant 

during the late night hours, but Officer Reyes did not 

utilize it because of Section 724 of the Transportation 

Code

Appellant filed a motion to suppress the blood sample 

claiming that a warrantless blood draw violated the Fourth 

Amendment, particularly in light of the U.S. Supreme 

Court’s recent decision in Missouri v. McNeely, 569 U.S. 

––––, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013). The State 

responded by arguing that the actual holding of McNeely

was narrow and not at issue in this case. It further asserted 

that a number of exceptions to the Fourth Amendment, 

including an implied consent exception under the 

Transportation Code, the “special needs” exception, the 

“search incident to arrest” exception, the automobile 

exception, and a cumulative “non-dualistic” exception to 

the Fourth Amendment justified the officer’s actions. The 

trial court denied the motion to suppress without findings 

of fact or conclusions of law.

*2 Appellant then entered a guilty plea, reserving the 

ruling on the suppression motion for appeal. He was 

sentenced to two years in prison and assessed a fine. In a 

single issue, Appellant contends the trial court abused its 

discretion in upholding the involuntary blood draw in 

light of McNeely. The State responds, as it did below, 

contending McNeely is inapplicable, and justifying the 

involuntary blood draw on several exceptions to the 

Fourth Amendment: implied consent, search incident to 

arrest, and the “cumulative, non-dualistic approach to 

exceptions and reasonableness.”

ANALYSIS

The United States Supreme Court in Schmerber v. 

California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 

(1966) held that an involuntary blood draw could pass 

Fourth Amendment scrutiny. The court first 

acknowledged that taking blood from a person constituted 

a search and seizure under the Fourth Amendment. Id. at 

767. But the involuntary blood draw was reasonable 

under the exigent circumstances exception to the Fourth 

Amendment based on three facts established by the record 

in that case. Id. at 770–71. First, the court acknowledged 

that the percentage of alcohol in the blood begins to drop 

after a person stops drinking because the body eliminates 

it from the system (thus causing the destruction evidence). 

Id. Second, there was already a delay in taking the 

accused to the hospital because the officer had to 

investigate the scene of the accident where the accused 

was found. Id. Finally, the Court states that there was no

time to seek out a magistrate and secure a warrant. Id.

Noting these “special facts” the court agreed the 

involuntary blood draw was appropriate. Id.

The court revisited the involuntary blood draw issue in 

Missouri v. McNeely where the State of Missouri

contended that the singular fact that alcohol dissipates 

from the body was sufficient by itself to create an exigent 

circumstance justifying a warrantless seizure of a 

defendant’s blood. 133 S.Ct. at 1560. A plurality of the 

court disagreed. It rejected a per se rule, instead 

reaffirming that whether the exigent circumstances 

exception is met must be judged on the totality of 

circumstances on a case by case basis. Id. at 1561. The 

court also explicitly stated that a warrantless blood draw 

must fall under one of the recognized exceptions to the 

Fourth Amendment. Id. at 1558.

The Texas courts of appeals grappled with whether 

Missouri v. McNeely invalidated non-consensual blood 

draws taken under the Texas Transportation Code. The 

Code mandates blood draws when an officer arrests a 

person for DWI and the person is either involved in an 

accident involving serious injury or death, or that person 

has two or more prior convictions for DWI. 

TEX.TRANSP.CODE ANN. § 724.012(b).

2 The courts of 

appeals have uniformly rejected the State’s various 

arguments attempting to distinguish McNeely or apply 

other exceptions to work around it. See Aviles v. State,

443 S.W.3d 291 (Tex.App.–San Antonio, 2014, pet. 

filed); Sutherland v. State, 436 S.W.3d 28 

(Tex.App.–Amarillo 2014, pet. filed); Douds v. State, 434 

S.W.3d 842 (Tex.App.–Houston [14th Dist.] 2014, pet. 

granted); Weems v. State, 434 S.W.3d 655 (Tex.App.–San 

Antonio 2014, pet. granted); Holidy v. State, No. 

06–13–00261–CR, 2014 WL 1722171 

(Tex.App.–Texarkana Apr. 30, 2014, pet. granted)(mem. 

op., not designated for publication).3

2 Germane to this case. Section–724.012(b) provides:

(b) A peace officer shall require the taking of a 

specimen of the person’s breath or blood under any 

of the following circumstances 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:

3 We note that the trial court here heard the motion to 

suppress on May 31, 2013 which was little more than a 
Burcie v. State, Not Reported in S.W.3d (2015)

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3

month after McNeely was handed down, and the trial 

court did not have the benefit of any of the recent cases 

construing McNeely and the Transportation Code.

*3 Any remaining doubt about these issues was resolved 

by the Texas Court of Criminal Appeals decision in State 

v. Villarreal, No. PD–0306–14, 2014 WL 6734178 

(Tex.Crim.App. Nov. 26, 2014, pet.granted). In 

Villarreal, an officer initiated a traffic stop and in 

questioning the driver, found him to have slurred speech, 

red, watery eyes, and the strong smell of alcohol. Id. at 

*1. The driver refused to take the standard field sobriety 

tests. Id. When a background check showed the driver had 

several prior DWI convictions, the arresting officer took 

the driver to a hospital for a blood draw, despite the 

driver’s non-consent. Id. at *2. The officer viewed the 

Transportation Code as mandating the blood draw, and 

while he “could have” obtained a warrant, he believed 

that the statute made a warrant unnecessary. Id. We view 

these facts as indistinguishable from Appellant’s 

situation.

The trial court in Villarreal held the blood draw improper. 

Id. at *3. The court of appeals affirmed and the Texas 

Court of Criminal Appeals squarely confronted the State’s 

implied consent argument under the Transportation Code. 

Id. at *6. It also addressed the State’s (B) on two or more 

occasions, has been previously convicted of or placed on 

community supervision for an offense under Section 

49.04 [misdemeanor DWI].... alternative arguments that 

the automobile, search incident to arrest, and special 

needs exceptions to the Fourth Amendment applied. Id. at 

*14–15. Lastly the court addressed the State’s claim that a 

general Fourth Amendment balancing test could justify 

the involuntary blood draw. Id. at *16. The Court rejected 

each of the State’s proffered basis for the blood draw, 

concluding:

We hold that the provisions in the 

Transportation Code do not, taken 

by themselves, form a 

constitutionally valid alternative to 

the Fourth Amendment warrant 

requirement. We thus reject the 

State’s assertion that a warrantless, 

nonconsensual blood draw 

conducted pursuant to those 

provisions can fall under one of the 

established exceptions to the 

warrant requirement described 

above, and we further reject the 

State’s suggestion that such a 

search may be upheld under a 

general Fourth Amendment 

balancing test.

Id. at *20.

The only distinguishing feature between Villarreal and 

this case is that in Villarreal the trial court granted the 

motion to suppress and here the trial court denied it. 

Under the applicable standard of review, we do afford 

almost total deference to the trial court’s determination of 

the historical facts that the record supports. Guzman v. 

State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). When the 

trial court is not asked to make findings of fact and 

conclusions of law, we view the evidence in the light 

most favorable to the trial court’s ruling and assume that 

the trial court made implicit findings of fact that support 

its ruling as long as those findings are supported by the 

record. Carmouche v. State, 10 S.W.3d 323, 328 

(Tex.Crim.App.2000). We also afford the same amount of 

deference to a trial courts’ rulings on the application of 

the law to the facts—so called mixed questions of law and 

fact—if resolution of those questions turns on an 

evaluation of credibility and demeanor. Guzman, 955 

S.W.2d at 89. But we review de novo “mixed questions of 

law and fact” not falling within this category. Id. In 

Villarreal, for instance, the Court of Criminal Appeals 

noted that it reviewed the trial court’s ruling de novo

because the underlying facts were not disputed. 2014 WL 

6734178 at *10.

In this case, there are also no disputed facts, at least none 

that would implicate any of the Fourth Amendment 

exceptions raised by the State. Each of the exceptions to 

the Fourth Amendment that the State urges in this case 

were expressly rejected by the Texas Court of Criminal 

Appeals in Villarreal.4 Only the exigent circumstances 

exception was not at issue in Villarreal, 2014 WL 

6734178 *9. But none of the facts in this record supports 

the kind of exigent circumstances that the U.S. Supreme 

Court found sufficient in Schrimer. Appellant was 

detained in a traffic stop and not an accident as in 

Schrimer. He was transported to a hospital less than two 

hours later for the blood draw. There was no indication 

that a magistrate judge was not available to issue a 

warrant had Officer Reyes pursued one.

4 One exception urged here, the “cumulative, 

non-dualistic approach to exceptions and 

reasonableness” appears to us to be the same “general 

Forth Amendment balancing test” rejected by the Court 

of Criminal Appeals in Villarreal. To the extent it is 

meant to be something different, the State’s one page 

presentation of that argument here cites no cases 

establishing it as distinct exception under the Fourth 

Amendment. All of the other exceptions advanced by 
Burcie v. State, Not Reported in S.W.3d (2015)

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4

the State are identically worded to those expressly 

rejected in Villarreal.

*4 We also note that following Villarreal, the Fort Worth 

Court of Appeals decided Burks v. State, 454 S.W.3d 705 

(Tex.App.–Fort Worth 2015, pet. filed) which overturned 

a trial court’s denial of a motion to suppress. The 

defendant in that case, as here, was pulled over for a 

traffic violation, found to have overt signs of intoxication, 

and was taken for an involuntary blood draw because he 

had two or more prior convictions for DWI. Id. at 707. 

The officer believed the implied consent provisions of the 

Transportation Code permitted the blood draw. Id. Based 

on Villarreal, the Fort Worth Court reversed the trial 

court order denying the motion to suppress and the 

conviction. Id. at 708. Burks is particularly instructive to 

us because in this transferred case, we are bound to follow 

the precedents of the transferring court of appeals. See

TEX.R.APP.P. 41.3.

We accordingly sustain Appellant’s single issue and we 

reverse the trial court’s order denying Appellant’s motion 

to suppress and the trial court’s judgment of conviction, 

and remand the case to the trial court for further 

proceedings consistent with this opinion.

All Citations

Not Reported in S.W.3d, 2015 WL 2342876

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.