
    Jonathan Albert LEAL, Appellant v. The STATE of Texas, Appellee
    NO. 14-13-00208-CR
    Court of Appeals of Texas, Houston (14th Dist.).
    Majority and Concurring Opinions on Remand filed June 25, 2015
    
      Mark W. Stevens, Galveston, TX, for appellant.
    Allison Lindblade, Galveston, TX, for state.
    Panel consists of Chief Justice Frost and Justices Donovan and Brown.
   MAJORITY OPINION ON REMAND

Marc W. Brown, Justice

Appellant Jonathan Albert Leal appealed the trial court’s denial of his motion to suppress and motion for new trial. In our original opinion reversing the trial court’s judgment, we held that the warrantless blood draw violated Leal’s Fourth Amendment rights. Leal v. State, 452 S.W.3d 14, 32 (Tex. App.-Houston [14th Dist.] 2014), vacated and remanded, 456 S.W.3d 567 (Tex.Crim.App.2015). On its own motion, the Court of Criminal Appeals granted review of our decision, vacated our judgment, and remanded the case to us to address only “whether appellant preserved his claim that the warrantless blood draw violated his Fourth Amendment rights.” Leal, 456 S.W.3d at 568. Although we implicitly held in our original opinion that Leal preserved his claim, we now explicitly conclude and explain that he did so.

As a preliminary matter, because our original opinion disposed of the merits of Leal’s primary arguments, we do not address them again here. See Keehn v. State, 245 S.W.3d 614, 614 n. 1 (Tex.App.Fort Worth 2007), aff'd, 279 S.W.3d 330 (Tex.Crim.App.2009); see, e.g., Weatherford v. State, 840 S.W.2d 727, 728-29 (Tex.App.-Eastland 1992, pet. ref'd) (considering on remand only the issues explicitly raised by Court of Criminal Appeals). We therefore incorporate our original opinion by reference.

In order for a complaint to be presented on appeal, a timely request, objection, or motion must have been made to the trial court stating the grounds for the ruling with sufficient. specificity to make the trial court aware of the complaint, and the trial court must .have expressly or implicitly ruled on the request, objection, or motion. Tex. R. App. P. 33.1(a)(1)(A). The complaining party must have clearly conveyed to the trial court the particular complaint raised on appeal, including the precise and proper application of law as well as the underlying rationale. Pena v. State, 285 S.W.3d 459, 463-64 (Tex.Crim.App.2009). Error preservation does not involve a hyper-technical or formalistic use of words or phrases; rather, straightforward communication in plain English is sufficient. Id. at 464. The party must let the trial judge know (1) what he wants; (2) why he thinks he is entitled to it; and (3) do so clearly enough for the judge to understand him.at a time when the judge is in the proper position to do something about it. Id. We consider the context in which the complaint was made and the parties’ shared understanding at that time. Id. A defendant who presents an argument to the trial judge in time for the judge to rule on. it has preserved the issue for appellate 'review. See Clarke v. State, 270 S.W.3d 573, 580 (Tex.Crim.App.2008). “A trial court’s ruling on a matter need not be expressly stated if its actions or other statements otherwise unquestionably indicate a ruling.” Rey v. State, 897 S.W.2d 333, 336 (Tex.Crim.App.1995).

Leal’s claim was preserved when the trial court implicitly overruled his amended motion to suppress. Leal timely filed an amended motion to suppress objecting to the warrantless blood draw on Fourth Amendment grounds. See Porath v. State, 148 S.W.3d 402, 409 (Tex.App.Houston’[14th Dist.] 2004, no pet.) (motion to suppress is a specialized objection to the admission of evidence). Specifically, citing Missouri v. McNeely,—U.S.—, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013), which had not yet been decided, Leal claimed that the repeat-offender provision of the implied-consent statute violated the Fourth Amendment. The record shows that the trial court was aware of Leal’s objection; however, the trial court did not explicitly rule on the amended motion at the suppression hearing. Leal renewed his objection at trial when the State offered a report containing an analysis of Leal’s blood. The trial court then admitted the report and allowed the analyst to testify regarding Leal’s blood alcohol content. Based on the trial court’s action in allowing the State to present evidence of Leal’s blood alcohol content to the jury, the court implicitly overruled Leal’s amended motion to suppress, and Leal preserved his claim that the warrantless blood draw violated his Fourth Amendment rights. See Rey, 897 S.W.2d at 336-37; see, e.g., Cantu v. State, 994 S.W.2d 721, 730-31 (Tex.App.-Austin 1999, pet. dism’d) (error was preserved when trial court did not expressly rule on defendant’s objection to expert witness’s qualifications, but permitted expert to answer the question if he knew); Riddle v. State, No. 02-02-00231-CR, 2003 WL 21983252, at *3 (Tex.App.-Fort Worth Aug. 21, 2003, pet. ref'd) (mem. op.; not designated for publication) (error was preserved when trial court did not expressly rule on portion of defendant’s motion to suppress dealing with inventory search, but allowed officer to testify before the jury about the inventory search).

Furthermore, Leal presented his claim to the trial court in his supplemental motion for new trial. Leal was sentenced on February 14, 2013. He timely filed a motion for new trial on March 8, 2013. See Tex. R. App. P. 21.4(a). The original motion did not challenge the legality of the warrantless blood draw. The Supreme Court decided McNeely on April 17, 2013. On April 22, 2013, Leal filed a supplemental motion for new trial citing McNeely and claiming that the warrantless blood draw violated his Fourth Amendment rights. Under rule 21.4(b), the supplemental motion was not timely filed. See Tex. R. App. P. 21.4(b). On April 26, 2013, at the new-trial hearing, Leal asked for and was given leave to supplement his original motion for new trial. The State did not object. See State v. Moore, 225 S.W.3d 556, 569 (Tex.Crim.App.2007) (trial court retains authority to allow untimely amendment to original motion for new trial within seventy-five-day period, so long as the State does not object). At the hearing, Leal’s counsel argued, based on the Supreme Court’s holding in McNeely, that the warrantless blood draw violated Leal’s Fourth Amendment rights. The State presented counter-arguments on the merits of Leal’s claim, demonstrating the parties’ shared understanding that Leal’s constitutional rights were at stake. See Pena, 285 S.W.3d at 464. The trial court denied Leal’s motion for new trial in an order dated May 21,2013.

In sum, Leal timely presented his complaint to the trial court in both his amended motion to suppress and his supplemental motion for new trial. See Pena v. State, 353 S.W.3d 797, 807 (Tex.Crim.App. 2011) (complaint is timely if made as soon as ground of objection becomes apparent). Leal’s complaint was adequately specific to put the trial court on notice of his Fourth Amendment challenge to the wan-antless blood draw. See, e.g., Gillenwaters v. State, 205 S.W.3d 534, 537 (Tex.Crim.App. 2006) (although motion for new trial did not mention “vague” or “vagueness,” defendant’s complaint was adequately specific when he claimed on several occasions during trial that the statute was “unconstitutionally vague”). The trial court ruled on Leal’s complaint when it admitted, over objection, evidence obtained as a result of the warrantless blood draw and denied Leal’s supplemental motion for new trial. See Tex. R. App. P. 33.1; Rey, 897 S.W.2d at 336. We therefore conclude that Leal preserved his claim that the warrantless blood draw violated his Fourth Amendment rights. Accordingly, we reverse the trial court’s judgment and remand to the trial court for a new trial consistent with our original opinion. See Leal, 452 S.W.3d at 32.

(Frost, C.J., concurring)

CONCURRING OPINION ON REMAND

Kem Thompson Frost, Chief Justice

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 and remanded for a new trial. 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.

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. On remand, the majority con-eludes 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. 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. All that is required 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. The Court of Criminal Appeals recognized that appellant’s amended motion contains a challenge to the warrantless blood draw on Fourth Amendment grounds. 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.

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. 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 feature of an amended motion distinguishes it from a supplemental motion, which is an addition rather than a replacement. Because the amended motion superseded and supplanted the original motion, the original motion could no longer be considered. 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. 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 necessary for appellant to argue that ground at the hearing. 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
5. appellant was “uncooperative during the blood draw.”

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. 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 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). After this court issued its judgment, the Court of Criminal Appeals issued its opinion in State v. Villarreal. 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.” 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.

Conclusion

The record shows that appellant made a timely, specific complaint that the warrant-less drawing of his blood violated his Fourth Amendment right to be free from unreasonable searches and seizures, and secured an adverse ruling. 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 war-rantless blood draw violated appellant’s Fourth Amendment rights. Thus, I respectfully concur in the court’s judgment on remand. 
      
      . When the State offered the report, Leal’s counsel stated, “Subject to all prior objections, no specific objection at this time.” Leal’s “prior objections” included his amended motion to suppress. See Porath, 148 S.W.3d at 409; cf. Bhola v. State, No. 14-09-00154-CR, 2010 WL 2501116, at *4 (Tex. App.-Houston [14th Dist.] June 22, 2010, no pet.) (mem. op.; not designated for publication) (concluding defendant did not abandon his motion to suppress when he stated at trial, "Subject to the previous objections, no objections.”)
     
      
      . 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).
     
      
      . Id.
      
     
      
      . Leal v. State, 456 S.W.3d 567, 568 (Tex.Crim.App.2015).
     
      
      . 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).
     
      
      . Eisenhauerv. State, 754 S.W.2d 159, 160-61 ' (Tex.Crim.App.1988), overruled on 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).
     
      
      .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.
     
      
      . See Leal, 456 S.W.3d at 568.
     
      
      . See Thomas, 408 S.W.3d at 882.
     
      
      .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).
     
      
      .A 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.
     
      
      . Steere, 445 S.W.2d at 253; cf. Herrera v. State, 951 S.W.2d 197, 198-99 (Tex.App.-Corpus Christi 1997, no pet.),
     
      
      . Steere, 445 S.W.2d at 253.
     
      
      . See id.
      
     
      
      . See Eisenhauer, 754 S.W.2d at 160-61; Cisneros, 290 S.W.3d at 462-63; Vicknair, 670 S.W.2d at 288. '
     
      
      .At 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.
     
      
      . See Eisenhauer, 754 S.W.2d at 160-61; Cisneros, 290 S.W.3d at 462-63; Vicknair, 670 S.W.2d at 288.
     
      
      . 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).
     
      
      . See — S.W.3d —, No. PD-0306-14, 2014 WL 6734178 (Tex.Crim.App. Nov. 26, 2014) (reh’g granted).
     
      
      . Id. at —, 2014 WL 6734178, at *11.
     
      
      . See Villaireal, — S.W.3d at —, 2014 WL 6734178 at *8-21; State v. Tercero, 467 S.W.3d 1, 4-9 (Tex.App.-Houston [1st Dist.] 2015, no pet. h.) (applying Villarreal as binding precedent after rehearing motion was granted by the Court of Criminal Appeals in Villarreal).
      
     