
    The STATE of Texas, Appellant v. Allen TERCERO, Appellee
    NO. 01-14-00120-CR
    Court of Appeals of Texas, Houston (1st Dist.).
    Opinion issued April 2, 2015
    Rehearing and Rehearing En Banc Overruled June 30, 2015
    
      John F. Healey, Jr., Dist. Atty., Jason Bennyhoff, Asst. Dist. Atty., Fort Bend County, Richmond, for the State.
    Leslie Paris Legrand III, Houston, for Appellee.
    Panel consists of Justices Keyes, Bland, and Massengale.
   OPINION

Evelyn V. Keyes, Justice

In this driving while intoxicated (“DWI”) case, the State of Texas appeals from the trial court’s order granting appel-lee Allen Tercero’s motion to suppress results of a warrantless blood-draw. In two issues, the State argues that (1) the trial court erred in concluding that drawing Tereero’s blood without a warrant violated the Fourth Amendment of the United States Constitution, and (2) the trial court erred “when it impliedly held that Texas Transportation Code [section] 724.012(b)(3)(B) is unconstitutional.”

We affirm.

Background

Officers K. Hogg and J. Huang observed Tercero’s vehicle driving late at night with a flat tire. They followed Tercero into a nearby parking lot. Officer Hogg approached Tercero, who was then standing outside his vehicle talking on a cell phone, and noticed that he demonstrated signs of intoxication, including the smell of alcohol on his breath, bloodshot eyes, and slow, slurred speech. Tercero refused to perform field sobriety tests, so Officer Hogg placed him under arrest for DWI. Terce-ro refused to provide a specimen of his breath or blood. However, the officers learned that he had two previous convictions for DWI and believed they had authority to conduct a warrantless blood draw pursuant to Transportation Code chapter 724. Accordingly, they transported Tercero to a local hospital where a medical professional collected the specimen of Tercero’s blood.

Officer Hogg testified that he encountered Tercero in a parking lot across the street from the police station, and, thus, he was in close proximity to the police department. He testified that there was no exigency that affected his ability to procure a warrant. He stated that he could have obtained a warrant if he had wanted to do so, but he had chosen not to, based on his understanding of the applicable provisions of the Transportation Code.

Tercero moved to suppress evidence against him, including any statements and blood evidence, on the basis that his arrest was warrantless and, therefore, illegal under both the Fourth Amendment of the United States Constitution and the Texas Constitution. Tercero further argued at the end of the suppression hearing that the recent United States Supreme Court case Missouri v. McNeely supported his contention that the warrantless, noncon-sensual taking of his blood sample violated his Fourth Amendment rights.

The trial court granted Tercero’s motion to suppress in part, ordering that the blood evidence should be suppressed because it was taken without a warrant and because “[no] exigent circumstances existed to justify a warrantless blood draw.” The trial court specifically found that Tercero’s blood was drawn without his consent or a warrant, that Officer Hogg “did not seek a warrant even though he testified he had the means to secure a warrant without significantly undermining the efficacy of the search,” and that “[n]o exigent circumstances existed because there were several officers on the scene to aid [in] investigating the DWI and Officer Hogg testified he could have secured a warrant if he desired and [he] himself testified no exigent circumstances existed excusing him from securing a warrant.” The trial court concluded that Officer Hogg’s blood draw was a search and seizure in violation of the Fourth Amendment of the United St'ates Constitution, that a warrant was required to seize Tercero’s blood absent exigent circumstances, and that no exigent circumstances existed to justify a warrantless blood draw. This appeal by the State followed.

Motion to Suppress

In its first issue, the State argues that the trial court erred in suppressing the results of Tercero’s blood test. Specifically, the State argues that Tercero was “deemed to have consented to submit to the taking of one or more specimens” of blood pursuant to Texas’s implied consent statutory framework as set out in Transportation Code chapter 724. It also argues that McNeely did not invalidate the Texas mandatory blood draw scheme, that the “totality of the circumstances” test set out in Schmerber v. California is still valid, and that “the mandatory blood draw statute here essentially enshrines an exigency in the statutory framework of the kind recognized by Schmerber.”

The State further argues that even if McNeely does invalidate the implied consent and mandatory blood draw statutes, it should not be applied retroactively to this case. In supplemental briefing, the State argues that the officer’s warrantless drawing of the blood sample was undertaken as a result of a reasonable mistake of law and, thus, the blood draw without a warrant was reasonable under the Fourth Amendment.

A. Standard of Review

We review a ruling on a motion to suppress evidence for an abuse of discretion. Shepherd v. State, 273 S.W.3d 681, 684 (Tex.Crim.App.2008) (citing State v. Dixon, 206 S.W.3d 587, 590 (Tex.Crim.App.2006)). When we review a trial court’s ruling on a motion to suppress, we give “almost total deference to a trial court’s express or implied determination of historical facts and review de novo the court’s application of the law of search and seizure to those facts.” Id. We view the evidence in the light most favorable to the trial court’s ruling. Wiede v. State, 214 S.W.3d 17, 24 (Tex.Crim.App.2007) (quoting State v. Kelly, 204 S.W.3d 808, 818 (Tex.Crim.App.2006)). The trial court is the “sole trier of fact and judge of credibility of the witnesses and the weight to be given to their testimony.” St. George v. State, 237 S.W.3d 720, 725 (Tex.Crim.App.2007). The trial court may choose to believe or disbelieve any part or all of a witness’s testimony. Green v. State, 934 S.W.2d 92, 98 (Tex.Crim.App.1996). We sustain the trial court’s ruling if it is reasonably supported by the record and correct on any theory of law applicable to the case. Laney v. State, 117 S.W.3d 854, 857 (Tex.Crim.App.2003).

The Fourth Amendment protects against unreasonable searches and seizures. U.S. Const. amend. IV; State v. Villarreal, — S.W.3d —, —, No. PD-0306-14, 2014 WL 6734178, at *8 (Tex.Crim.App. Nov. 26, 2014). The taking of a blood specimen is a search and seizure under the Fourth Amendment. Schmerber v. California, 384 U.S. 757, 767, 86 S.Ct. 1826, 1834, 16 L.Ed.2d 908 (1966); Villarreal, — S.W.3d at —, —, 2014 WL 6734178, at *9.

“In general, to comply with the Fourth Amendment, a search of a person pursuant to a criminal investigation (1) requires a search warrant or a recognized exception to the warrant requirement, and (2) must be reasonable under the totality of the circumstances.” Villarreal, S.W.3d at —, —, 2014 WL 6734178, at *8; see also Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967) (holding that warrantless search or seizure is per se unreasonable unless it falls under recognized exception to warrant requirement). Established exceptions to the warrant requirement include the consent exception, the exigency exception, the automobile exception, the search-incident-to-arrest exception, and the special-needs doctrine. See Villarreal, — S.W.3d at —, —, 2014 WL 6734178, at *8 (discussing consent, automobile, search-incident-to-arrest, and special-needs exceptions); Gore v. State, 451 S.W.3d 182, 193-97 (Tex.App.-Houston [1st Dist.] 2014, pet. filed) (discussing exigency exception). There is no case that establishes Texas’s implied consent statute as an exception to the warrant requirement. See Villarreal, — S.W.3d at —, —, 2014 WL 6734178 at *8, 17 (rejecting argument that warrantless, nonconsensual blood draw conducted pursuant to implied consent statute should be upheld as reasonable in light of legislature’s clear intent to except such searches from warrant requirement).

In Schmerber v. California, the Supreme Court upheld a warrantless blood test of a DWI suspect involved in a car crash because the officer “might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened the destruction of evidence.” 384 U.S. at 770-71, 86 S.Ct. at 1835-36. In reaching this conclusion, the Schmerber Court stated, “Search warrants are ordinarily required for searches of dwellings, and absent an emergency, no less could be required where intrusions into the human body are concerned.” Id. at 770, 86 S.Ct. at 1835. In excepting Schmerber’s blood test from this general warrant requirement, the Supreme Court identified exigent circumstances present in that case: the dissipation of alcohol as the body functions to eliminate it from the system, the time taken to investigate the crash and bring the accused to the hospital, and the lack of time to seek out a magistrate and obtain a warrant. Id. at 770-71, 86 S.Ct. at 1835-36. The Schmer-ber Court also considered the fact that the test chosen to measure the accused’s blood-alcohol level was a reasonable one and that it was conducted in a reasonable manner. Id. at 771, 86 S.Ct. at 1836. The Court concluded that Schmerber’s right to be free of unreasonable searches or seizures was not violated, and it stated, “It bears repeating, however, that we reach this judgment only on the facts of the present record.” Id. at 772, 86 S.Ct. at 1836.

The Supreme Court has since recognized the exigent-circumstances exception to the warrant requirement as applying “when the exigencies of the situation make the needs of law enforcement so compelling that a warrantless search is objectively reasonable under the Fourth Amendment.” Missouri v. McNeely, — U.S. —, 133 S.Ct. 1552, 1558, 185 L.Ed.2d 696 (2013); Kentucky v. King, 563 U.S. 452, —, 131 S.Ct. 1849, 1856, 179 L.Ed.2d 865 (2011). “To determine whether a law enforcement officer faced an emergency that justified acting without a warrant, this Court looks to the totality of the circumstances.” McNeely, 133 S.Ct. at 1559 (citing Brigham City v. Stuart, 547 U.S. 398, 406, 126 S.Ct. 1943, 1949, 164 L.Ed.2d 650 (2006)); see Schmerber, 384 U.S. at 770-71, 86 S.Ct. at 1835-36 (applying totality-of-circumstanees approach in analyzing whether exigent circumstances justified warrantless blood test).

In McNeely, the Supreme Court considered and rejected Missouri’s claim that “so long as the officer has probable cause and the blood test is conducted in a reasonable manner, it is categorically reasonable for law enforcement to obtain the blood sample without a warrant.” 138 S.Ct. at 1560-61. The McNeely Court refused to recognize a per se exigency justifying a war-rantless search and held, “consistent with general Fourth Amendment principles, that exigency in this context must be determined case by case based on the totality of the circumstances.” Id. at 1556. McNeely reaffirmed that a warrantless search of a person for the purpose of gathering evidence in a criminal investigation can be justified “only if it falls within a recognized exception” to the warrant requirement, and that this principle applies to compulsory blood collection during a DWI investigation. Id. at 1558; Villarreal, — S.W.3d at —, —, 2014 WL 6734178, at *9.

B. Texas’s Implied Consent Statute as an Exception to the Warrant Requirement

Here, the State first argues that Tercero was “deemed to have consented” to the blood test under provisions of the Texas Transportation Code that establish implied consent to the taking of breath or blood specimens for all drivers arrested on suspicion of DWI, principally section 724.011, which provides:

If a person is arrested for an offense arising out of acts alleged to have been committed while the person was operating a motor vehicle in a public place ... the person is deemed to have consented, subject to this chapter, to submit to the taking of one or more specimens of the person’s breath or blood for analysis to determine the alcohol concentration or the presence in the person’s body of a controlled substance, drug, dangerous drug, or other substance.

Tex. Transp. Code Ann. § 724.011(a) (Vernon 2011); Villarreal, — S.W.3d at —, —, 2014 WL 6734178, at *6.

Section 724.011 is “modified by section 724.013, which establishes a right to refuse to provide a breath or blood sample in routine DWI cases.” Tex. Transp. Code Ann. § 724.013 (Vernon 2011) (providing that “a specimen may not be taken if a person refuses to submit to the taking of a specimen designated by a peace officer”); Villarreal, — S.W.3d at —, —, 2014 WL 6734178, at *6.

' However, Transportation Code section 724.012(b) establishes that when certain aggravating factors are present during a DWI stop an officer is required to obtain a specimen even if the suspect refuses. Tex. Transp. Code Ann. § 724.012(b) (Vernon 2011); Villarreal, — S.W.3d at —, —, 2014 WL 6734178, at *6. Specifically, section 724.012(b)(3)(B) provides that a peace officer “shall require the taking of a specimen of the person’s breath or blood” if the arrest is for an offense “involving the operation of a motor vehicle ... and the person refuses the officer’s request to submit to the taking of a specimen voluntarily” and if, “at the time of the arrest, the officer possesses or receives reliable information from a credible source that the person ... on two or more occasions, has been previously convicted of ... an offense under Section 49.04, 49.05, 49.06, or 49.065, Penal Code.” Tex. Transp. Code Ann. § 724.012(b)(3)(B); Villarreal, — S.W.3d at —, —, 2014 WL 6734178, at *7. Thus, in relevant part, the Transportation Code provides for a mandatory blood draw if the defendant has two prior DWI convictions.

The State essentially argues that the mandatory blood draw may be taken pursuant to the implied-consent statute without a warrant and without the necessity of establishing a recognized exception to the warrant requirement. In State v. Villarreal, however, the Court of Criminal Appeals rejected the State’s contention that the implied-consent and mandatory-blood-draw provisions of the Transportation Code establish a constitutionally yalid basis for conducting a nonconsensual, war-rantless search. Villarreal, — S.W.3d at —, —, 2014 WL 6734178, at *6-8. The Court of Criminal Appeals held that, “to be valid for Fourth Amendment purposes, consent must be freely and voluntarily given based on the totality of the circumstances, and must not have been revoked or withdrawn at the time of the search.” Id. at *11, — S.W.3d at —, — (citing Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 2047-48, 36 L.Ed.2d 854 (1973), and Florida v. Jimeno, 500 U.S. 248, 252, 111 S.Ct. 1801, 1804, 114 L.Ed.2d 297 (1991)).

This Court has likewise held that the implied-consent and mandatory-blood-draw provisions do not justify a blood draw undertaken in the absence of a warrant or recognized exception to the warrant requirement. Gore, 451 S.W.3d at 193. We held that “implied consent that cannot be withdrawn does not meet the requirements for voluntary consent under the Fourth Amendment.” Id.; see also State v. Anderson, 445 S.W.3d 895, 908 (Tex.App.-Beaumont 2014, no pet.) (concluding that section 724.012(b) “does not constitute an exception to the Fourth Amendment’s warrant requirement”); Aviles v. State, 443 S.W.3d 291, 294 (Tex.App.-San Antonio 2014, pet. filed) (op. on remand) (holding same); Forsyth v. State, 438 S.W.3d 216, 222-23 (Tex.App.-Eastland 2014, pet. ref'd) (holding that implied consent under Transportation Code is not equivalent to voluntary consent for Fourth Amendment purposes).

The Court of Criminal Appeals in Villarreal stated, “We agree with these courts’ assessments that, in the context of a non-consensual, warrantless bodily search of a person suspected of criminal activity, a statute providing for irrevocable implied consent cannot supply the type of voluntary consent necessary to establish an exception to the Fourth Amendment warrant requirement.” — S.W.3d at —, —, 2014 WL 6734178, at *14. It concluded that “implied consent that has been withdrawn or revoked by a suspect cannot serve as a substitute for the free and voluntary consent that the Fourth Amendment requires.” Id. at *11, — S.W.3d at

Here, it is undisputed that Tercero refused to provide either a blood or breath specimen at the time he was arrested for DWT and that Officer Hogg did not obtain a warrant. We conclude that, under the totality of the circumstances, Tercero had not freely and voluntarily given consent to the search, and he revoked or withdrew any implied consent at the time of the search. Thus, we conclude that Tercero did not provide consent to the blood draw consistent with the requirements of the Fourth Amendment. See Schneckloth, 412 U.S. at 227, 93 S.Ct. at 2047-48; Villarreal, — S.W.3d at —, —, 2014 WL 6734178, at *11, 14; Gore, 451 S.W.3d at 193.

C. General Fourth Amendment Balancing Test

The State further argues, however, that McNeely did not invalidate Schmerber, which applied the totality-of-the-circumstances test to a determination of whether exigent circumstances justified deviating from the general warrant requirement in a particular case. 384 U.S. at 770-71, 86 S.Ct. at 1835-36. It argues that “[t]he ultimate question in Fourth Amendment analysis is that of reasonableness, which necessarily weighs privacy interests versus societal interests in public safely and law enforcement,” and that Texas’s mandatory-blood-draw and implied-consent statutory scheme satisfies this balancing test.

We acknowledge that McNeely did not overrule Schmerber. See McNeely, 133 S.Ct. at 1556 (clarifying that Schmerber did not create per se exigency exempting blood alcohol tests from warrant requirement and that determination of existence of exigent circumstances must be done on case-by-case basis based on totality of circumstances); see also Gore, 451 S.W.3d at 194 (“The McNeely court did not overrule Schmerber, it merely held that exigency must be determined on a case-by-case basis, and that the metabolization of alcohol did not create a per se situation of exigency.”). However, McNeely reaffirmed the Supreme Court’s prior holdings that “a warrantless search of the person is reasonable only if it falls within a recognized exception” to the warrant requirement. McNeely, 133 S.Ct. at 1558 (citing United States v. Robinson, 414 U.S. 218, 224, 94 S.Ct. 467, 471-72, 38 L.Ed.2d 427 (1973)).

The Court of Criminal Appeals recognized this holding in Villarreal and concluded that a search of a person conducted pursuant to a criminal investigation requires a search warrant or a recognized exception to the warrant requirement. — S.W.3d at —. —, 2014 WL 6734178, at *8 (citing McNeely, 133 S.Ct. at 1558, Riley v. California, — U.S. —, 134 S.Ct. 2473, 2482, 189 L.Ed.2d 430 (2014), and King, 131 S.Ct. at 1856). In Villarreal, the State argued, as it does here, that the warrantless taking of a blood sample could be upheld under a general Fourth Amendment balancing test when the defendant has had two prior DWI convictions and has thus impliedly consented to the blood draw. Id. at *16. The Court of Criminal Appeals rejected this argument, stating, “[W]e disagree that a balancing test is appropriate given the context.” Id. at *17, — S.W.3d at —, —. The Villarreal court cited several United States Supreme Court opinions, including McNeely and Riley, in concluding that “[t]he Supreme Court has made clear that, in the context of an active criminal investigation, and when the primary goal of law-enforcement activity is the gathering of evidence, a warrantless search of a person is unreasonable unless it falls within an established exception to the warrant requirement.” Id. (citing McNeely, 133 S.Ct. at 1558, and Riley, 134 S.Ct. at 2482).

The Court of Criminal Appeals further stated that even if it were to accept the viability of a balancing test as a substitute for the established exceptions to the warrant requirement, it “would conclude that, on balance, a DWI suspect’s privacy interest outweighs the State’s interest in preventing drunk driving through warrantless searches.” Id. at *18, — S.W.3d at —, —. It opined, “McNeely reaffirmed the principle that a compelled physical intrusion beneath the skin to obtain evidence in a criminal investigation implicates significant privacy interests, and this privacy interest is not automatically diminished simply because an individual is suspected of a serious DWI offense.” Id. (citing McNeely, 133 S.Ct. at 1558).

McNeely also held that “‘the general importance of the government’s interest in [curbing DWI offenses] does not justify departing from the warrant requirement without a showing’ that some established exception, such as exigency, applies.” Id. (quoting McNeely, 133 S.Ct. at 1565). The Court of Criminal Appeals “acknowledge[d] the magnitude of the drunk driving problem in Texas and the government’s legitimate and substantial interest in curbing that problem,” but it held that solving the problem “through warrantless, nonconsensual searches of suspects’ blood” violates the Fourth Amendment, especially “in light of the fact that warrants for such blood testing are often readily available.” Id.

Here, we likewise “decline to disregard [these] well-establish[ed] principles in favor of a more generalized balancing-of-interests test.” See id. at *17-18, — S.W.3d at —, —. We conclude, as the court did in Villarreal, that a general balancing test is not appropriate here to justify a warrantless blood draw, and even if it were, the State’s interest in curbing drunk driving through the use of warrant-less searches does not outweigh a DWI suspect’s privacy interest. We conclude that the warrantless taking of Tercero’s blood sample pursuant to Texas’s implied-consent and mandatory-blood-draw statutory scheme did not satisfy the requirements of the Fourth Amendment without a showing that some established exception to the warrant requirement applied and that, here, none did apply. See id. at *11, 18, — S.W.3d at —, —, —; Gore, 451 S.W.3d at 193; see also McNeely, 133 S.Ct. at 1565 (holding that “the general importance of the government’s interest in [curbing DWI offenses] does not justify departing from the warrant requirement without a showing” that some established exception to warrant requirement applies).

The State does not argue that any other exception to the warrant requirement applies in this case. See Amador v. State, 221 S.W.3d 666, 672-73 (Tex.Crim.App.2007) (holding that once defendant establishes absence of warrant, State must prove that warrantless search was reasonable under totality of circumstances); Gore, 451 S.W.3d at 193 (holding, where appellant withdrew any implied consent that she may have given and affirmatively refused to give consent for warrantless blood draw, that warrantless search “may not be premised on the consent exception to the warrant requirement” and that “the State must come forth with some other recognized exception to the warrant requirement”). In fact, the trial court found, based on Officer Hogg’s own direct testimony, that no exigent circumstances existed to justify a warrantless blood draw. Nor did it find, any other established exception to the warrant requirement.

D. Application of McNeely

The State argues that even if McNeely invalidates the Transportation Code’s mandatory-blood-draw and implied-consent provisions, it should not be applied “retroactively” to this case.

New constitutional rules governing the conduct of criminal prosecutions must be “applied retroactively to all cases, state or federal, pending on direct review or not yet final” when the rule was announced, regardless of whether they constitute a clear break from past precedent. Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 716, 93 L.Ed.2d 649 (1987); Steadman v. State, 360 S.W.3d 499, 504 n.13 (Tex.Crim.App.2012); Taylor v. State, 10 S.W.3d 673, 678 (Tex.Crim.App.2000).

We first note that it does not appear that McNeely set out a new constitutional rule — rather, it declined to recognize one. McNeely clarified that Schmerber did not create a per se exigency in the case of blood alcohol evidence, but instead only recognized that exigent circumstances might, in limited circumstances, provide an exception to the warrant requirement. McNeely, 133 S.Ct. at 1556-58. McNeely reaffirmed the Supreme Court’s prior rul--ings that the admissibility of blood evidence taken pursuant to the exigency exception to the warrant requirement must be reviewed on a case-by-case basis under a totality of thé circumstances. Id. Moreover, even if McNeely and the Texas cases applying it did set out a new rule, that rule would apply here. McNeely was decided in April 2013, and the hearing on Tercero’s motion to suppress occurred on September 13, 2013. Thus; this case was clearly not yet final at the time McNeely was announced and it applies here on direct appeal. See Griffith, 479 U.S. at 328, 107 S.Ct. at 716; Steadman, 360 S.W.3d at 504 n. 13; Taylor, 10 S.W.3d at 678.

E. Good-Faith Exception to Texas’s Exclusionary Rule for Mistake of Law

The State further argues that because Officer Hogg acted in good faith reliance on the Transportation Code’s provisions at the time he collected Tercero’s blood sample, the evidence should not be excluded under Texas’s exclusionary rule, set out in Code of Criminal Procedure article 38.23.

However, Officer Hogg’s good faith reliance on his belief that the Transportation Code permitted him to collect Tercero’s blood sample without a warrant or a recognized exception to the warrant requirement is irrelevant here. Texas has adopted an exclusionary rule that is broader than its federal counterpart. Miles v. State, 241 S.W.3d 28, 34 (Tex.Crim.App.2007). The Texas exclusionary rule provides:

(a) No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.
(b) It is an exception to the provisions of Subsection (a) of this Article that the evidence was obtained by a law enforcement officer acting in objective good faith reliance upon a warrant issued by a neutral magistrate based on probable cause.

Tex. Code Crim. Proc. Ann. art. 38.23 (Vernon 2005).

Thus, evidence obtained in violation of a constitutional provision shall not be admitted in evidence against Tercero, and the only exception provided for by the Texas Legislature depends upon issuance of a warrant based on probable cause. Id. It is undisputed that no such warrant existed in this case, and thus this “good-faith exception” does not apply here. See Douds v. State, 434 S.W.3d 842, 861-62 (Tex.App.-Houston [14th Dist.] 2014, pet. granted).

The State argues that we should expand the statutory “good-faith” exception to include this situation, where the officer acted on a good faith belief that the law justified his actions. However, the State’s reliance on Heien v. North Carolina and similar federal authority is misplaced. In Heien, the Supreme Court concluded that the Fourth Amendment allowed reasonable suspicion as required for a traffic stop or an investigatory stop to rest on a reasonable mistake of law. — U-S. -, 135 S.Ct. 530, 536-37, 190 L.Ed.2d 475 (2014). Heien is distinguishable on its facts because it dealt with the formation of reasonable suspicion necessary to initiate an investigatory stop, not a mistake of law that might permit a warrantless, nonconsensual search of a person. See id. And, as our sister court recognized in a similar case, “The Court of Criminal Appeals has previously rejected an effort to broaden [Texas’s statutory] good-faith exception using federal precedent, and it has refused to adopt federal exceptions inconsistent with the text of our statutory exclusionary rule.” Douds, 434 S.W.3d at 861-62 (citing Wehrenberg v. State, 416 S.W.3d 458, 473 (Tex.Crim.App.2013), State v. Daugherty, 931 S.W.2d 268, 270 (Tex.Crim.App.1996), and Howard v. State, 617 S.W.2d 191, 193 (Tex.Crim.App.1979) (op. on reh’g)).

Accordingly, we decline to apply the “reasonable mistake of law” reasoning from Heien to create a new exception inconsistent with the text of article 38.23. Because the warrantless, nonconsensual blood draw here violated Tercero’s Fourth Amendment rights, we conclude that the trial court did not err in suppressing the blood evidence. See Laney, 117 S.W.3d at 857 (holding that we sustain trial court’s ruling if it is reasonably supported by record and correct on any applicable theory of law).

We overrule the State’s first issue.

Constitutionality of Transportation Code section 724.012

In its second issue, the State argues that the trial court erred in impliedly ruling that Transportation Code section 724.012(b)(3)(B) is unconstitutional. However, we reject the contention that the trial court impliedly found Transportation Code section 724.012(b)(3)(B) unconstitutional. The trial court did not issue any findings of fact or conclusions of law relevant to the facial constitutionality of the statute, nor was it asked or required to do so in this case.

This Court has previously held that section 724.012(b) was not facially unconstitutional even though it was applied in a way that violated a particular defendant’s Fourth Amendment rights. Gore, 451 S.W.3d at 188-89, 197-98. We stated in Gore that “[s]eetion 724.012(b) merely requires an officer to take a blood or breath specimen in certain circumstances” and that the statute is “mandatory” in the sense that “the officer has no discretion in [the enumerated situations] to obtain either a blood or a breath specimen.” Id. at 188 (quoting McGruder v. State, No. 10-13-00109-CR, — S.W.3d-,:-, 2014 WL 3973089, at *3 (Tex.App.-Waco Aug. 14, 2014, pet. granted)). We observed that “as written, section 724.012(b) does not require a blood or breath specimen to be taken contrary to the Fourth Amendment” and that “[i]t is the officer’s failure to obtain a warrant and the State’s failure to prove an exception to the warrant requirement, not the mandatory nature of the blood draw statute, that violate the Fourth Amendment.” Id. at 189 (quoting McGruder, — S.W.3d at-, -, 2014 WL 3973089, at *3, and citing Douds, 434 S.W.3d at 861). We concluded that “a nonconsensual blood draw, with a warrant, would not be constitutionally infirm.” Id.

Likewise, here, the trial court was' not required to determine that section 724.012(b) was facially unconstitutional in order to determine that the nonconsensual, warrantless taking of Tercero’s blood specimen violated his Fourth Amendment rights.

We overrule the State’s second issue.

Conclusion

We affirm the ruling of the trial court granting Tercero’s motion to suppress his nonconsensual, warrantless blood sample.  