Reversed and Remanded and Majority and Concurring Opinion s on Remand filed June 25 , 2015

.

In The 

## Fourteenth Court of Appeals

NO. 14

- 13

- 00208

- CR

JONATHAN ALBERT LEAL , Appellant

V.

THE STATE OF TEXAS , Appellee

On Appeal from the 122nd District Court Galveston County, Texas Trial Court Cause No. 12CR0947



### CONCURRING OPINION ON REMAND

Appellant moved to suppress evidence of his blood

- alcohol concentration by challenging the legali ty of a traffic stop that eventually led to his arrest for driving while intoxicated ( DWI )

. Appellant later amended his motion to suppress to challenge the warrantless blood dra w on Fourth Amendment grounds. On original
submission and over my dissent , th is court reversed appellant’s DWI conviction2 and remanded for a new trial. 1 Addressing an issue of first impression in this

court , the majority concluded that the trial court should have suppressed evidence
of a ppellant’s blood

- alcohol content because law enforcement officers obtained the evidence by means of a warrantless blood draw , which violated appellant’s Fourth
Amendment right to be free from unreasonable searches and seizures. 2
On its own motion, the Court of Criminal Appeals granted review of this
court’s decision, vacated the judgment, and remanded with instructions for this

court to address whether a ppellant preserved error on his claim that the warrantless blood draw violated his Fourth Amendment rights. 3 On remand, t he majority
concludes that appellant preserved error , that the trial court’s judgment should be reversed, and that the case should be remanded for a new trial. I agree, but for
different reasons.

Preservation

- of

- Error Analysis Appellant preserved error by making a timely, specific complaint in the trial
court and securing an adverse ruling. 4 Specifically, appellant moved the trial court to suppress evidence of his blood

- alcohol content, identifying grounds for this relief in a written motion to suppress. B efore the suppression hearing, appellant amended the motion to include additional grounds for relief. Though the parties’ arguments at the hearing focus ed on another ground in the motion , to preserve

error a movant need not discuss all the grounds at the hearing. 5 All that is required

1 See Leal v. State , 452 S.W.3d 14, 32 (Tex. App.

— Houston [14th Dist.] 2014), vacated , 456 S.W.3d 567 (Tex. Crim. App. 2015).

2 Id.

3 Leal v. State , 456 S.W.3d 567, 568 (Tex. Crim. App. 2015).

4 Thomas v. State , 408 S.W.3d 877, 882 (Tex. Crim. App. 2013); Fuller v. State , 827 S.W.2d 919, 928 (Tex. Crim. App. 1992)

. 5 Eisenhauer v. State , 754 S.W.2d 159, 160

– 61 (Tex. Crim. App. 1988) , overruled on3 is specificity, timeliness, and an adverse ruling

. The record establishes all three

. Specificity Among the grounds for suppression appellant identified in the amended
motion is appellant’s assertion that the warrantless blood draw was taken pursuant

to a Texas statute that , as applied, violated the Fourth Amendment

. 6 The Court of Criminal Appeals recognized that appellant’s amended motion contains a challenge

to the warrantless blood draw on Fourth Amendment grounds. 7 By including t his ground in his amended motion to suppress , appellant identified his Fourth Amendment complaint with sufficient specificity to preserve error on the claim. 8

other grounds by Heitman v. State , 815 S.W.2d 681, 690 (Tex. Crim. App. 1991) ; Cisneros v. State , 290 S.W.3d 457, 462

– 63 (Tex. App.

— Houston [14th Dist.] 2009, pet. dism’d); Vicknair v. State , 670 S.W.2d 286, 288 (Tex. App.

— Houston [1st Dist.] 1983 ) , aff’d , 751 S.W.2d 180 , 187

– 90 (Tex. Crim. App. 1988 ).

6 Appellant’s amended motion states: Challenge to Mandatory Blood Draw The State is apparently relying on a blood draw taken without a warrant under Texas Transportation Code Sec. 724.011, as amended in 2009. The Amendment purports to provide that a mandatory blood draw may be taken where an officer has credible evidence tha t an individual has been previously convicted twice of DWI. The subject amendment to Sec. 724.011 is unconstitutional on its face and as applied, as a violation of the U.S. Constitution, Amd. VIII, which prevents unreasonable searches and seizures. Appel lant’ s curious reference to the Eighth Amendment does not impact the preservation

- of

- error analysis because it is apparent from the context that appellant meant the Fourth Amendment. A lthough appellant stated that Section 724.011 violated the Eighth Amend ment, appellant’s argument was that taking a warrantless blood draw as required by the statute violated his right under the United States Constitution to be free from unreasonable searches and seizures , and this right is set forth in the Fourth Amendment t o the United States Constitution. See U.S. Const. amend. IV. The motion contains no Eighth Amendment arguments, and the odd reference appears to be a typographical error.

7 See Leal , 456 S.W.3d at 568.

8 See Thomas , 408 S.W.3d at 882.4 Ti meliness

The record s hows the following chronology of events relevant to the preservation

- of

- error analysis :

At the time of the hearing, the only live motion pending before the trial court was the amended motion to suppress. 9 The moment appellant filed the amended motion, the original motion ceased to exist

. In the context of legal pleadings and motions, an amended instrument is a substitute for the original; the old and new
instruments do no t co

- exist

— the latter takes the place of the former. This defining

9 In its opinion, the Court of Criminal Appeals stated that the suppression hearing pertained to the original motion to suppress rather than the amended motion to suppress. Leal , 456 S.W.3d at 568. Nothing in the record suggests that appellant withdrew the amended motion

or that appellant refiled the original motion , or that appellant took any other action that might arguably have brought the superseded motion back to life

. The amended motion contained all of the grounds asserted in the original motion as w ell as additional grounds. The suppression hearing focused on a ground contained in the original motion , but at the time of the hearing th e original motion was a nullity, having been replaced by operation of law upon the filing of the amended motion , which also contained the ground that was the focus of the hearing

. See Steere v. State , 445 S.W.2d 253, 253 (Tex. App.

— Houston [1st Dist.] 1969, writ dism’d)

.5 feature of an amended motion distinguishes it from a supplemental motion , which is an addition rather than a replacement

. 10 Because t he a mended motion superseded and supplanted the original motion , 11 the original motion could no longer be considered. 12 Thus, w hen the tri al court denied the motion to suppress , the trial court denied the only pending motion

— appellant’s First Amended M otion to Suppress. 13 In that motion appellant raised the claim this court adjudicated on original submission

. T he trial court denied the moti on at the suppression hearing during trial, before admitting the blood

- alcohol evidence. Thus, appellant’s objection was timely.
Adverse Ruling

At the end of the suppression hearing, the trial court denied the pending motion to suppress, which was the amended motion, thus rejecting all grounds
contained in that motion. Even though arguments at the hearing focused on
another ground for suppression of the blood

- alcohol evidence , appellant preserved error on all g rounds contained in the amended motion, including the Fourth
Amendment ground he now asserts on appeal. To preserve error, it was not

10 A supplemental motion is an addendum to the original motion

. Cf

. Tex. R. Civ. P. 62

– 65. See a lso B LACK ’ S L AW D ICTIONARY 1438, 1439 (6th ed. 1990) (defining “supplemental” as “That which is added to a thing to complete it,” and noting that supplemental affidavits, answers, complaints, and pleadings, add to the original). But, an amended motion is a su bstitute

— a replacement

— for the original. See Riney v. State , 28 S.W.3d 561, 565

– 66 (Tex. Crim. App. 2000) (noting that once indictment was amended it became the “official” indictment in the case) ; s ee also Eastep v. State , 941 S.W.2d 130, 132

– 33 (Tex. Crim. App. 1997) (holding that, in the context of indictment, an amendment is an alteration to the face of the charging instrument which affects the substance of the charging instrument ), overruled on other grounds by Riney , 28 S.W.3d at 561

. 11 Ste ere , 445 S.W.2d at 253; cf. Herrera v. State , 951 S.W.2d 197, 198

– 99 (Tex. App.

— Corpus Christi 1997, no pet.).

12 Steere , 445 S.W.2d at 253.

13 See id.6 necessary for appellant to argue that ground at the hearing. 14 At the conclusion of the hearing, t he trial court refused to suppress the evidence and denied the pending motion (First Amended Motion to Suppress) in its entirety

. Thus, a ppellant
secured the requisite adverse ruling to preserve error

. Absence of Waiver Though a party moving to suppress evidence may waive a gr ound contained in the motion at the hearing on the mo tion, no such waiver occurred. At the suppression hearing, appellant did not state or otherwise indicate that he was waiving or withdrawing his constitutional challeng e to the blood

- draw statute. Nor
d id appellant state that he was urging only the grounds that he argued or mentioned at the suppression hearing. The State did not object to appellant’s amendment of the motion to suppress , nor did the State argue that the trial court should not consider appellant’s constitutional challenge to the blood

- draw statute. Nor did the
trial court refuse to consider it. Though appellant did not devote argument to his constitutional challenge to
th e blood

- draw statute in his oral presentation to the trial court, the evidence adduced at the suppression hearing included the following:

1. when asked to voluntarily provide a blood sample, appellant refused to do so;
2. Officer Hodges was required by the blo od

- draw statute to have a blood sample taken from appellant ; 3. appellant was taken to a hospital emergency room where a blood sample was taken;
4. j ust before the blood draw , appellant stated that he wanted his attorney present during the blood draw; and

14 See E isenhauer , 754 S.W.2d at 160

– 61; Cisneros , 290 S.W.3d at 462

– 63; Vicknair , 670 S.W.2d at 288.7 5. appe llant was “uncooperative during the blood draw

. ” 15
During the suppression hearing, appellant’s counsel stated that the prosecutor and he had a g reed to first present evidence regarding the validity of the stop and then present evidence regarding other issues. After the parties each presented the validity

- of

- the

- stop evidence , each side presented additional
evidence , and appellant argued that one or more of his statements that the State wanted to use against him at trial were made after he requested a lawyer. No further evidence was presented. Near the end of the hearing, as the lunch break drew near, the trial court asked counsel if there was an ything else “we need to talk about right now.” Appellant’s counsel responded “No, not here.” To preserve

error, however, appellant was not required to talk about his constitutional challenge
to the blood

- draw statute at the suppression hearing when appel lant had presented the ground by means of his written motion to suppress. 16 Appellant’s counsel did nothing at the suppression hearing sufficient to waive the challenge to the blood

draw statute contained in the amended motion.
Disposition of the Appeal On original submission, I concluded in a dissenting opinion that the

15 At one point, appellant’s counsel ask ed Officer Hodges how many people held appellant down during the blood draw, and Officer Hodges answered “three.” Without striking the testimony, the trial court then stated “Let’s not go there right now. I want to hear ju st Motion to Suppress issues.” Appellant’s counsel did not respond to this statement and continued his examination of the witness . It is not clear what the trial court meant by this comment. The trial court may have meant that the number of people who h eld appellant down while his blood was drawn over appellant’s objection was not relevant to any issue in the amended motion to suppress, including the challenge to the mandatory blood

- draw statute. Even presuming that the trial court was expressing a beli ef that there was no issue in the amended motion to suppress regarding the blood

- draw statute, appellant’s counsel never expressed any agreement with this belief.

16 See E isenhauer , 754 S.W.2d at 160

– 61; Cisneros , 290 S.W.3d at 462

– 63; Vicknair , 670 S.W.2 d at 288.8 warrantless blood draw did not violate appellant’s right to be free from
unreasonable searches and seizures because a ppellant impliedly consented to the
blood draw under Texas Transportation Code section 724.012(b)(3)(B). 17 After
this court issued its judgment , the Court of Criminal Appeals issued its opinion in
State v. Villarreal

. 18 In Villarreal , the high court held that implied consent under Texas Transportation Code section 724.012(b) “cannot substitute for the free and voluntary consent that the Fourth Amendment requires.” 19 Since then, t he Court of Criminal Appeals has granted the State’s motion for rehearing in Villarreal , and
ordered the case resubmitted so that the high court c ould consider the arguments presented by the State in its rehearing motion. To date, the Court of Criminal Appeals has not withdrawn or changed its opinion or judgment in Villarreal , nor has the court issued a new opinion or judgment. In this con text, the Fourteenth Court of Appeals still is bound by the majority opinion in Villareal . Under that standing precedent, the trial court’s judgment in the case under review must be
reversed and the case remanded for a new trial. 20

Conclusion

T he record sh ows that appellant made a timely, specific complaint that the warrantless drawing of his blood violated his Fourth Amendment right to be free
from unreasonable searches and seizures , and secured an adverse ruling

.

17 See Leal v. State , 452 S.W.3d 14, 32

– 40 (Tex. App.

— Houston [14th Dist.] 2014), vacated , 456 S.W.3d 567 (Tex. Crim. App. 2015).

18 See

— S.W.3d

— , No. PD

- 0306

- 14, 2014 WL 6734178 (Tex. Crim. App. Nov. 26, 2014) (reh’g granted).

19 Id. at *11.

20 See Villarreal,

— S.W.3d at

— , 2014 WL 6734178 at *8

– 21; State v. Tercero , — S.W.3d

— , — , 2015 WL 1544519, at *2

– 6 (Tex. App.

— Houston [1st Dist.] Apr. 2, 2015, no pet. h.) (applying Villarreal as binding precedent after rehearing motion was granted by the Court o f Criminal Appeals in Villarreal ).9 Appellant prese rved error as to this com plaint

. U nder binding precedent from the Court of Criminal Appeals, this court must conclude that appellant did not impliedly consent for Fourth Amendment purposes to the blood draw under Texas Transportation Code section 724.012(b)(3)(B) and that the warrantless blood draw violated appellant’s Fourth Amendment rights. Thus , I respectfully concur in the court’s judgment on remand

.

/s/ Kem Thompson Frost Chief Justice

Panel consists of Chief Justice Frost and Justi ces Donovan and Brown ( Brown, J., majority )

.
Publish

— T EX

. R. A PP

. P. 47.2( b).