
    Walter Tendai CHIDYAUSIKU, Appellant v. The STATE of Texas, State
    NO. 02-14-00077-CR, NO. 02-14-00078-CR
    Court of Appeals of Texas, Fort Worth.
    DELIVERED: February 19, 2015
    
      Wes Ball, Arlington, TX, for Appellant.
    Sharen Wilson, Criminal District Attorney; Debra A. Windsor, Chief of the Post-Conviction Division; Tanya S. Dohoney, Dawn Ferguson, Assistant Criminal District Attorneys for Tarrant County, Fort Worth, TX, for State.
    PANEL: LIVINGSTON, C.J.; DAUPHINOT and GABRIEL, JJ.
   OPINION

LEE ANN DAUPHINOT, JUSTICE

After the denial of his motions to suppress, Appellant Walter Tendai Chidyausi-ku pled guilty to intoxication assault and intoxication manslaughter, charged in separate indictments, reserving his right to appeal the denial of his motions to suppress. He pled “not true” to the deadly-weapon allegation in each case. A jury convicted him as instructed to do by the trial court, found the deadly-weapon allegation in each case true, and assessed his punishment at three years’ confinement for his conviction of intoxication assault and ten years’ confinement for his conviction of intoxication manslaughter. The trial court sentenced him accordingly, with the sentences to run concurrently.

In two points, Appellant challenges the trial court’s denial of his motions to suppress the evidence obtained from the war-rantless, mandatory, and involuntary blood draw. Because the trial court reversibly erred by denying his motion to suppress in each case, we reverse the trial court’s judgments and remand both causes to the trial court for a new trial or other proceedings consistent with this opinion.

Brief Facts

Appellant was involved in a car wreck at a four-way stop intersection in Arlington, Texas. Appellant’s automobile approached the intersection at a fast speed and then failed to stop, striking the vehicle operated by Tina R. As a result of the collision, Tina suffered severe bodily injuries causing her to be hospitalized for six weeks. Additionally, the wreck resulted in the death of Tina’s ten-year-old son.

The City of Arlington Fire Department and the DWI unit of the City of Arlington Police Department responded to the wreck. Officer Brian Martin spoke with Appellant when he arrived on the scene and noticed that Appellant had been crying and was a bit emotional. Appellant admitted to having had two alcoholic drinks at a bar after work before the collision occurred. Appellant also told Officer Martin that he had been trying to rinse his mouth with mouthwash just before the collision to mask the smell of cigarette smoke, and may have even swallowed some mouthwash, because he was on his way to meet his son.

Officer Martin directed Appellant to perform field sobriety tests because Appellant showed signs of impairment such as poor balance, bloodshot and glassy eyes, and the smell of alcohol from his mouth. When asked about the specific results of the tests, Officer Martin testified that Appellant had scored six of six points on the horizontal-gaze-nystagmus test and four of eight on the walk-and-turn test, failing . both, but that he had passed the final test by scoring zero on the one-leg stand.

As a result of those tests, Officer Martin placed Appellant under arrest for driving while intoxicated. Appellant was then transported to the Medical Center of Arlington (MCA), where he was asked to give a blood sample. He refused, so blood-draw technician Adam Tomlinson performed the bloqd draw without Appellant’s consent while Officer Martin was present. Tomlinson worked for the MCA “as a side gig part time while [also] working on the ambulance [at Arlington EMS].” As an Emergency Department Tech II at MCA, some of Tomlinson’s primary duties included “[smarting IVs, drawing blood, [inserting and removing] Foley catheters[,] ... transporting patients[,] and assisting the nurses and doctors in other procedures.” After the sample was collected, Officer Martin transported the blood vials to the main police station and locked them in the evidence room, where they remained refrigerated. Analyst Joyce Ho tested Appellant’s blood.

In both cases, Appellant filed a motion to suppress the blood evidence on the ground that it was seized without a warrant and without consent, under the auspices of transportation code section 724.012, authorizing mandatory blood draws, and triggering section 724.017, which lists those authorized to draw blood under the implied consent statutes. Appellant argued in his motions to suppress that under section 724.017, a qualified technician must draw the blood, that the statute excludes emergency medical services personnel from the definition of “qualified technician,” and that because Tomlinson holds an EMT paramedic license, he is included in emergency medical services personnel. Appellant also contended that the mandatory blood draw was a search, and he moved to suppress the blood evidence on the ground that the Fourth Amendment “does not permit non-consensual blood draws in every instance,” citing Missouri v. McNeely in his brief supporting his motion in each case. The trial court denied the motions in both cases.

At trial, subject to Appellant’s objections to the blood evidence, he and the State stipulated to the result of Ho’s analysis showing that he had a blood-alcohol concentration of 0.12. Dr. Robert Johnson, Chief Toxicologist for the Tarrant County Medical Examiner’s Office, testified concerning Appellant’s 0.12 blood-alcohol concentration.

Motion to Suppress

We review a trial court’s ruling on a motion to suppress evidence under a bifurcated standard of review. We give almost total deference to a trial court’s rulings on questions of historical fact and application-of-law-to-fact questions that turn on an evaluation of credibility and demeanor, but we review de novo application-of-law-to-fact questions that do not turn on credibility and demeanor.

It is well established that [t]he Fourth Amendment (of the United States Constitution) proscribes all unreasonable searches and seizures, and it is- a cardinal principle that searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.

The Texas Court of Criminal Appeals instructs us that

a nonconsensual search of a DWI suspect’s blood conducted pursuant to the mandatory-blood-draw and implied-consent provisions in the Transportation Code, when undertaken in the absence of a warrant or any applicable exception to the warrant requirement, violates the Fourth Amendment.

The Supreme Court of the United States has held,

Our cases have held that a warrantless search of the person is reasonable only if it falls within a recognized exception. That principle applies to the type of search at issue in this case, which involved a compelled physical intrusion beneath McNeel/s skin and into his veins to obtain a sample of his blood for use as evidence in a criminal investigation. Such an invasion of bodily integrity implicates an individual’s most personal and deep-rooted expectations of privacy.

To be constitutionally permissible, á warrantless search must fall within one of the well-accepted exceptions to the warrant requirement.' We have found no exception to the warrant requirement that would justify the search in the cases now before this court. The only possible exigency suggested by the records is the natural dissipation of alcohol in Appellant’s body. But, as the McNeely court held, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant. Examining the totality of the circumstances here, we see no basis to justify Appellant’s blood draw on the ground of exigency. The records show that the Arlington Police Department and the Arlington judiciary, in a commendable commitment to assuring Fourth Amendment protections, have established a protocol and procedure to obtain search warrants efficiently and without undue delay. In 2011 alone, 288 search warrants were procured. The records reflect that this procedure, described by Officer Martin, Sergeant Steve Chow, also of the City of Arlington Police Department, and Judge Stewart Milner, the chief municipal judge of the City of Arlington, was efficient and available twenty-four hours a day, seven days a week, holidays included. The records do not reflect any other exception to justify the search. We further point out that this court has ah ready rejected the State’s argument that the evidence should not be excluded under article 38.23. We therefore hold that the trial court erred by denying Appellant’s motion to suppress the blood test results in each case.

Harm

Because the denial of Appellant’s motions to suppress and the admission of the fruits of the unlawful search of Appellant by means of a warrantless, nonconsen-sual blood draw violated his Fourth Amendment constitutional rights, we perform the harm analysis mandated by rule 44.2(a) of the Rules of Appellate Procedure:

If the appellate record in a criminal case reveals constitutional error that is subject to harmless error review, the court of appeals must reverse a judgment of conviction or punishment unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment.

In each case, if the denial of the motion to suppress contributed in some measure to the State’s leverage in the plea-bargaining process and may have contributed to Appellant’s decision to relinquish his constitutional rights of trial and confrontation, we cannot conclude beyond a reasonable doubt that the error did not contribute to the conviction or punishment. As a result, the error cannot be found harmless. We cannot say that the denial of Appellant’s motion to suppress the results of the blood test did not contribute to his decision to enter a guilty plea in each case. Consequently, we cannot say that the erroneous denial of his motion to suppress did not contribute to his conviction in each case. Because the trial court reversibly erred by denying Appellant’s motion to suppress in each case, we are compelled to sustain his first point in each case. We therefore do not reach his remaining point in each case, which challenges the blood draw under section 724.017.

Conclusion

Having held that the trial court reversibly erred by denying Appellant’s motions to suppress, we reverse the trial court’s judgments and remand both caüses to the trial court for a new trial or other proceedings consistent with this opinion.

GABRIEL, J., filed a concurring opinion in which LIVINGSTON, C.J., joins.

LEE GABRIEL, JUSTICE,

concurring.

I agree that the trial court’s judgments must be reversed and remanded for further, consistent proceedings. I write separately to clarify the parameters of this court’s holdings.

This case involves a mandatory blood draw under transportation code section 724.012(b)(1), which implies consent for a breath or blood sample if a suspected impaired driver is in an accident and someone other than the impaired driver “has suffered bodily injury and been transported to a hospital ... for medical treatment.” Tex. Transp. Code Ann. § 724.012(b)(1)(C) (West 2011). The court of criminal appeals, in a case involving section 724.012(b)(3), recently held that “a nonconsensual search of a DWI suspect’s blood conducted pursuant to the mandatory-blood-draw and implied-consent provisions in the Transportation Code, when undertaken in the absence of a warrant or any applicable exception to the warrant requirement, violates the Fourth Amendment.” State v. Villarreal, No. PD-0306-14, — S.W.3d -, -, 2014 WL 6734178, at *21 (Tex.Crim.App. Nov. 26, 2014) (5-4 opinion). Thus, the warrantless blood draw under section 724.012(b)(1) in this case violated the Fourth Amendment and must be suppressed in the absence of any exception to the warrant requirement.

I agree that there are no exceptions to the warrant requirement in this case because the record reveals (1) no exigency; (2) that Appellant did not consent to the search; and (3) that the automobile, search-incident-to-arrest, and special-needs exceptions are inapplicable. See id. at -, 2014 WL 6734178, at *10-16; Lloyd v. State, 453 S.W.3d 544, 547-48 (Tex.App.-Dallas 2014, no pet. h.). However, the police officers at the time of the blood draw did nothing wrong by relying on a then-valid statute to compel a blood specimen without a warrant when faced with two people who were severely injured after Appellant was in a wreck -with them, one of whom — a ten-year-old boy — later died. Similarly, the trial court understandably held that section 724.012(b)(1) specifically authorized the blood draw and was, in effect, an exception to the warrant requirement. Whether or not the police had a “commendable ... protocol” in place to secure a warrant as stated by the opinion, the police justifiably relied on an authorizing statute to compel the warrantless search. I recognize that there is no good-faith exception to the exclusionary rule, see Burks v. State, 454 S.W.3d 705, 709 (Tex.App.-Fort Worth 2015, no pet. h.), but I believe it imperative to avoid any implication that the police officers or the trial court in this case were willfully or knowingly disregarding constitutional requirements. In any event, the State failed to prove under the totality of the circumstances that the warrantless search was nevertheless reasonable based on an established exception to the warrant requirement. See Amador v. State, 221 S.W.3d 666, 672-73 (Tex.Crim.App.2006) (holding once defendant establishes a search or seizure occurred without a warrant and rebuts the presumption of proper police conduct, the burden shifts to the State to prove the reasonableness of the search or seizure).

Having found error, the opinion correctly proceeds to a harm analysis under rule 44.2(a). Tex.R.App. P. 44.2(a). Neither Appellant nor the State briefed whether any harm flowed from the constitutional error; thus, it is unclear whether Appellant argues that the error contributed to his decision to plead guilty, to his punishment as assessed by the jury, or both. But the court of criminal appeals has indicated that even though the blood-test results were admitted only during punishment, the harm from the trial court’s denial of appellant’s motion to suppress, if any, is deeply connected to Appellant’s decision to plead guilty. See Holmes v. State, 323 S.W.3d 163, 172-73 (Tex.Crim.App.2009); see also Sanchez v. State, 98 S.W.3d 349, 357-58 (Tex.App.-Houston [1st Dist.] 2003, pet. ref'd). Thus, any harm arising from the trial court’s denial should be looked at relative to Appellant’s decision to plead guilty. See Gentry v. State, No. 12-13-00168-CR, 2014 WL 4215544, at *4 (Tex.App.-Tyler Aug. 27, 2014, pet. filed) (mem. op., not designated for publication) (in an appeal from DWI conviction where defendant pleaded guilty and jury assessed punishment and after concluding warrantless blood draw violated Fourth Amendment, appellate court considered “whether the trial court’s admission of the blood test evidence contributed to Appellant’s decision to plead ‘guilty ”); Forsyth v. State, 438 S.W.3d 216, 225 (Tex.App.-Eastland 2014, pet. ref'd) (same holding in case where defendant pleaded guilty and trial court assessed punishment); Jaganathan v. State, 438 S.W.3d 823, 828-29 (Tex.App.-Houston [14th Dist.] 2014, pet. granted) (same). But see Noriega v. State, No. 04-13-00744-CR, 2014 WL 7339735, at *2 (Tex.App.-San Antonio Dec. 23, 2014, no pet. h.) (mem. op., not designated for publication) (concluding defendant who pleaded guilty to DWI and had jdry assess punishment was not harmed by admission at punishment of blood-test results obtained without a warrant because “the jury would [not] have assigned much weight to the statutory blood draw evidence in view of the other evidence of the extent of defendant’s intoxication”).

Under rule 44.2(a), we must reverse the trial court’s judgments unless we can determine beyond a reasonable doubt that the error did not contribute to Appellant’s decision to plead guilty. In other words, we must conclude beyond a reasonable doubt that the trial court’s failure to suppress the blood-test results did not influence Appellant’s decision to plead guilty. Forsyth, 438 S.W.3d at 225. The record shows that after the trial court announced that it was denying the motions to suppress, Appellant’s counsel stated that it was Appellant’s “intention ... to enter pleas of guilty” and that he specifically intended to preserve his right to appeal the trial court’s suppression rulings. Counsel further stated that Appellant would “enter a plea to this now” to “not fuss about things that aren’t in dispute” and would take up the “legal issue” later on appeal. I believe these statements by counsel preclude a finding that Appellant’s decision to plead guilty was not influenced by the trial court’s denials of his motions to suppress. See Gentry, 2014 WL 4215544, at *4; Jaganathan, 438 S.W.3d at 829.

With these comments, I concur in the court’s reversal of the trial court’s judgments and remand for further, consistent proceedings.

LIVINGSTON, C.J. Joins. 
      
      . See Tex.Code Crim. Proc. art. 42.08(a) (West Supp. 2014).
     
      
      . See State v. Villarreal, No. PD-0306-14, — S.W.3d -, -, 2014 WL 6734178, at *20 (Tex.Crim.App. Nov. 26, 2014) (holding that implied consent statutes, "taken by themselves, [do not] form a constitutionally valid alternative to the Fourth Amendment warrant requirement”).
     
      
      . Tex. Transp. Code Ann. § 724.012 (West 2011), § .017 (West Supp. 2014).
     
      
      . - U.S. -, 133 S.Ct. 1552, 1557, 185 L.Ed.2d 696 (2013).
     
      
      . Amador v. State, 221 S.W.3d 666, 673 (Tex.Crim.App.2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997).
     
      
      . Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607 (Tex.Crim.App.2005); Johnson v. State, 68 S.W.3d 644, 652-53 (Tex.Crim.App.2002).
     
      
      . Gonzales v. State, 369 S.W.3d 851, 854 (Tex.Crim.App.2012) (internal quotation marks and citation omitted).
     
      
      . Villarreal, - S.W.3d at -, 2014 WL 6734178, at *21.
     
      
      . McNeely, 133 S.Ct. at 1558 (citations and internal quotation marks omitted).
     
      
      . Id. at 1558-59; Villarreal, - S.W.3d at -, 2014 WL 6734178, at *9.
     
      
      . McNeely, 133 S.Ct. at 1568.
     
      
      . See id.
      
     
      
      . See Villarreal, — S.W.3d at -, 2014 WL 6734178 at *10 (rejecting implied consent, exceptions to the warrant requirement-— the automobile exception, the special-needs exception, and the search-incident-to-arrest-exception, as well as the treatment of the blood draw as a seizure, not a search and employing a balancing test as justifications for mandatory blood draw).
     
      
      . See Burks v. State, 454 S.W.3d 705, 709 (Tex.App.-Fort Worth 2015, no pet. h.) (noting that “there is no exception to our statutory exclusionary rule for an officer’s good faith reliance on a statute”).
     
      
      . See id. at 706, 709 (reversing trial court's order denying motion to suppress in DWI-felony repetition blood-draw case).
     
      
      . Tex.R.App. P. 44.2(a).
     
      
      . See McKenna v. State, 780 S.W.2d 797, 799-800 (Tex.Crim.App.1989); Castleberry v. State, 100 S.W.3d 400, 404 (Tex.App.-San Antonio 2002, no pet.); Woodberry v. State, 856 S.W.2d 453, 458-59 (Tex.App.-Amarillo 1993, no pet.).
     
      
      . See Burks, 454 S.W.3d at 709 (implicitly holding error harmful by reversing trial court’s judgment and order denying motion to suppress in DWI-felony repetition blood draw case).
     
      
      
        .See Tex.R.App. P. 47.1.
     
      
      . The opinion states that the "only possible exigency suggested by the record is the natural dissipation of alcohol in Appellant's body.” I disagree to the extent this statement could be construed as a holding that dissipation is the only arguable exigency in this type of case. I agree, however, that the record in this case shows no exigency sufficient to justify a warrantless search.
     