Texas Courts of Appeals
No. 14-12-00642-CR 10/15/13
Is Transportation Code §724.012(b)(1)(C), mandating a blood draw when an officer reasonably believes an individual will be transported to a hospital as a result of an intoxication-related accident, unconstitutional as applied in this case because the underlying DWI was a misdemeanor?
No. Nothing in the language of the statute or the holdings of the Supreme Court in Missouri v. McNeely or California v. Schmerber suggests that whether an offense is a misdemeanor or felony affects the 4th Amendment analysis. The warrantless draw in this case was supported by several exigent circumstances, including the need to investigate the crash, the reasonable belief that a passenger would be transported for medical treatment, and the passage of time before the draw could be performed.
There is no evidence in the record to show that obtaining a warrant would have further delayed the blood draw or affected the efficacy of the sample.
This is now the leading decision on the viability of the mandatory blood draw statute (§724.012 of the Transportation Code), even after the decision of the United States Supreme Court in Missouri v. McNeely. But we always knew that the ultimate word would be coming from the Supreme Court itself. It does not appear that the Supreme Court will be deciding a mandatory blood draw case or implied consent case anytime soon, so the next significant decision should come from the Court of Criminal Appeals, perhaps in this case. With the issue being so significant, and with the presence of a dissenting opinion (which is as well-written and thorough as the majority), the Court of Criminal Appeals will almost certainly be reviewing this decision.
No. 04-12-00487-CR 10/9/13
Did the jury charge improperly allow the jury to find the defendant guilty of continuous sexual abuse of a child based on acts committed in Dallas and Tarrant Counties when the indictment alleged the offense occurred in Tarrant County and the defendant was tried there?
No. Nothing in PC §21.02 requires that all constituent offenses occur in the same county. The location where the acts occur is not an element of the offense, and there was sufficient evidence to support venue in Tarrant County.
This is a pretty standard venue decision—based upon existing venue law—but it is very good to have this decision in a continuous sexual abuse case. Add this to the now-numerous court decisions that have upheld the State’s ability to use and prosecute that offense.