Reversed and Remanded and Majority and Concurring Opinions 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 legality 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 draw on Fourth Amendment grounds. On original 

submission and over my dissent, this court reversed appellant’s DWI conviction 
2

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 appellant’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 appellant preserved error on his claim that the warrantless 

blood draw violated his Fourth Amendment rights.3

 On remand, the 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. Before the suppression hearing, appellant 

amended the motion to include additional grounds for relief. Though the parties’ 

arguments at the hearing focused 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 on 
3

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 this 

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 that 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.

Appellant’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. Although appellant stated that Section 724.011 violated the 

Eighth Amendment, 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 to 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

Timeliness

The record shows 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 not 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 well as additional grounds. The suppression 

hearing focused on a ground contained in the original motion, but at the time of the hearing the 

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 the amended motion

superseded and supplanted the original motion,

11 the original motion could no 

longer be considered.12 Thus, when the trial court denied the motion to suppress, 

the trial court denied the only pending motion—appellant’s First Amended Motion

to Suppress.13 In that motion appellant raised the claim this court adjudicated on 

original submission. The trial court denied the motion 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 grounds contained in the amended motion, including the Fourth 

Amendment ground he now asserts on appeal. To preserve error, it was not 

 10A supplemental motion is an addendum to the original motion. Cf. Tex. R. Civ. P. 62–

65. See also BLACK’S LAW DICTIONARY 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 substitute—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); see 

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.

11Steere, 445 S.W.2d at 253; cf. Herrera v. State, 951 S.W.2d 197, 198–99 (Tex. App.—

Corpus Christi 1997, no pet.).

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

13See id.
6

necessary for appellant to argue that ground at the hearing.14 At the conclusion of 

the hearing, the trial court refused to suppress the evidence and denied the pending 

motion (First Amended Motion to Suppress) in its entirety. Thus, appellant 

secured the requisite adverse ruling to preserve error. 

Absence of Waiver

Though a party moving to suppress evidence may waive a ground contained 

in the motion at the hearing on the motion, no such waiver occurred. At the 

suppression hearing, appellant did not state or otherwise indicate that he was 

waiving or withdrawing his constitutional challenge to the blood-draw statute. Nor 

did 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 

the 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 blood-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. just before the blood draw, appellant stated that he wanted his attorney 

present during the blood draw; and

 14See Eisenhauer, 754 S.W.2d at 160–61; Cisneros, 290 S.W.3d at 462–63; Vicknair, 670 

S.W.2d at 288.
7

5. appellant was “uncooperative during the blood draw.”15

During the suppression hearing, appellant’s counsel stated that the 

prosecutor and he had agreed 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 anything 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 appellant 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 blooddraw statute contained in the amended motion.

Disposition of the Appeal 

On original submission, I concluded in a dissenting opinion that the 

 15At one point, appellant’s counsel asked 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 just 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 held 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 belief 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. 

16See Eisenhauer, 754 S.W.2d at 160–61; Cisneros, 290 S.W.3d at 462–63; Vicknair, 670 

S.W.2d at 288.
8

warrantless blood draw did not violate appellant’s right to be free from 

unreasonable searches and seizures because appellant 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, the Court of 

Criminal Appeals has granted the State’s motion for rehearing in Villarreal, and 

ordered the case resubmitted so that the high court could 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 context, 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

The record shows 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. 

 17See 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).

18See —S.W.3d—, No. PD-0306-14, 2014 WL 6734178 (Tex. Crim. App. Nov. 26, 2014) 

(reh’g granted).

19Id. at *11.

20See 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 of 

Criminal Appeals in Villarreal).
9

Appellant preserved error as to this complaint. Under 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 Justices Donovan and Brown (Brown, J., 

majority).

Publish — TEX. R. APP. P. 47.2(b).