By the Honorable David Newell
Court of Criminal Appeals Judge in Austin
As I write this, I kind of feel like Steve Martin in the movie The Jerk explaining what a patron might win at the guess-your-weight booth.[1] Normally, I cover terms of the Court of Criminal Appeals when doing caselaw updates, but here, I am really pulling highlights from a paper I wrote in anticipation of presenting at some regional conferences for the Center for the Judiciary, so I am covering March 2019 to May 2020. I make no guarantees that any of these cases are ones you want me to highlight or even that they might amuse you. I can promise only that I will make the summaries bite-sized. If you have ever eaten any of my cooking, you know to ingest at your own peril.[2]
10. Don’t ask the United States Supreme Court if implied-consent laws authorize the warrantless seizure of blood from an intoxicated and unconscious driver. Stop me if you’ve heard this one before. The United States Supreme Court granted review on that very question but ended up not answering it. In Mitchell v. Wisconsin,[3] the Court recognized, albeit in a plurality, that while there is no per se exigency in the metabolization of alcohol into the bloodstream that justifies the warrantless seizure of an intoxicated driver’s blood, an unconscious and intoxicated driver could present a medical emergency. That medical emergency, in addition to the dissipation of the alcohol in the unconscious driver’s bloodstream and the inability to obtain a breath sample, combine to create exigent circumstances to seize and analyze the blood.
One of the swing votes in this case was Justice Thomas, who has always believed that probable cause to believe a driver is intoxicated, along with the dissipation of alcohol, amounts to exigent circumstances justifying a warrantless search and seizure.[4] So he agreed with the plurality on the issue of exigency. Three dissenters noted that the State had actually conceded that the seizure was not justified under a theory of exigent circumstances, and Justice Gorsuch dissented simply to observe that the Court was supposed to address the issue of implied consent, not exigency.
But if you are looking for closure, the Texas Court of Criminal Appeals later held in State v. Ruiz[5] that the implied-consent statute did not authorize the warrantless search and seizure of blood from an unconscious and intoxicated driver. There is obviously a lot more to these cases than this summary, so I commend them both to your reading.
9. A police officer has reasonable suspicion to stop a truck if he runs the license plate and finds the registered owner has a revoked driver’s license. In Kansas v. Glover,[6] the United States Supreme Court considered a stop where a Kansas deputy sheriff ran the license plate on a pick-up and found out that the registered owner had his license revoked. The deputy pulled the truck over. The owner of the truck, Glover, turned out to also be the driver, but the deputy did not know that until after he had stopped the truck.
Writing for the majority, Justice Thomas noted that “reasonable suspicion” does not require “scientific certainty” even if it requires more than a “hunch.” The bottom line is that the Court looked at inferences from the facts at hand and whether it was reasonable for the officer to infer that the owner of the truck was the one driving it.[7]
8. If you’re driving drunk, do not throw a lit cigarette out of the window because that’s reasonable suspicion to stop, even if you don’t start a fire.[8] Michael Wood was driving while intoxicated and flicked a lit cigarette out of the driver’s side window in front of a police officer. The officer stopped Wood and later arrested him for DWI. Wood argued that §365.012 of the Health and Safety Code, which deals with littering, makes disposing of lighted litter, including a cigarette, an offense only if a fire is ignited as a result. The trial court suppressed the evidence, but the Third Court of Appeals reversed. In State v. Wood,[9] the court of appeals held that the officer’s observation of an object being discarded was enough to provide reasonable suspicion. The court of appeals also noted that Subsection 365.012(a) of the Health and Safety Code still allowed for punishment for littering even if the lighted trash doesn’t start a fire, albeit for an offense with a lower punishment range.
7. Does weaving within one’s lane of traffic, even if done safely, amount to reasonable suspicion to stop for failure to maintain a single lane? I would love to answer this question for you, but the issue is currently pending. I will note two, count ’em two, cases you might want to be aware of from intermediate courts of appeals that have tackled the issue. In the first, police pulled over a U-Haul that was suspected of involvement in multiple burglaries. The officer had observed the rear tire of the vehicle straddling the lane divider shortly after rounding a curve. The trial court granted the motion to suppress because even though the driver’s tires crossed the striped lines without signaling a lane change, there were no other vehicles in the vicinity. The Thirteenth Court of Appeals affirmed in State v. Hardin.[10] The court of appeals acknowledged the plurality opinion of the Court of Criminal Appeals in Leming v. State,[11] had observed that it is an offense for someone to leave the marked lane without signaling regardless of whether the action was safe, but did not follow it because it was not binding authority.
Conversely, in State v. Meras,[12] the Tenth Court of Appeals held that a stop for failing to maintain a single marked lane was a traffic offense justifying a traffic stop regardless of whether there was any evidence of unsafe driving. The court of appeals chose to follow the reasoning of the plurality in Leming. As you can see from above, Hardin has already been granted for review, so we’ll see whose cuisine reigns supreme.[13]
6. If getting a search warrant for blood is doable, a warrantless blood draw might not be justified under exigent circumstances. Trooper David Kral was called out to a car wreck. Eyewitnesses identified Phillip Couch as having driven his Corvette recklessly into the wrong lane and hitting a truck head on. Couch had refused treatment at the scene. It took Trooper Kral[14] about 90 minutes from the time he was called to when he completed field sobriety tests. Kral then transported Couch to a hospital in New Braunfels, a drive that took about 45 minutes. (So we’re at about 2 hours and 15 minutes now.) At the hospital, Kral began drafting a blood search warrant to draw Couch’s blood, which took about 30 minutes (up to 2:45 now). When he could not reach a judge, Kral decided to take Couch’s blood without a warrant based upon the Texas Transportation Code.[15] Kral got Couch’s blood about three hours after he had been dispatched to the collision. The trial court suppressed the evidence because there was no showing of exigency.
The Third Court of Appeals affirmed in State v. Couch.[16] According to the court of appeals, the facts did not support a conclusion that the search would be “significantly undermined” by the time it would have taken to get a warrant. In particular, the court noted the availability of other officers to assist, procedures for obtaining a blood warrant via fax or in person, and no evidence indicating what time period would amount to a “significant delay.”[17]
5. And speaking of exigency, does the State need to show exigent circumstances to justify a “suspicious place” arrest under Art. 14.03(a)(1)? Sean Michael McGuire drove while intoxicated and ran into a motorcycle, killing the driver. After the collision, McGuire pulled into a nearby gas station and waited for police after he called his mother and two other people he knew in law enforcement. He was arrested without a warrant, and his blood was later drawn without a warrant. The trial court suppressed the evidence on the basis that Art. 14.03(a)(1) did not authorize the “suspicious place” arrest in this case without a showing of exigency.
The First Court of Appeals agreed in State v. McGuire.[18] The court of appeals explained that Article 14.03(a)(1) requires a showing of:
1) probable cause;
2) a suspicious place; and
3) exigent circumstances that call for immediate action or detention by police.
Here, the State did not argue that the dissipation of alcohol established an exigency justifying the arrest. Further, there were no facts supporting exigent circumstances.[19]
4. A magistrate’s terrible handwriting doesn’t prevent good-faith reliance upon a blood search warrant even if the signature is illegible (but everyone, please try to write legibly). Police arrested Cesar Arellano for driving while intoxicated. The arresting officer submitted a sworn affidavit to the on-duty magistrate for a search and seizure warrant for blood. The magistrate signed the blank signature line form of the search warrant in cursive. Aside from the cursive signature, the magistrate’s name was not typed or handwritten anywhere on the warrant. Arellano argued that the warrant was invalid because it failed to comply with Art. 18.04(5) of the Code of Criminal Procedure, which provides, among other things, that the magistrate’s name is in clearly legible handwriting or in typewritten form. The trial court granted the motion to suppress after repeatedly asking the State which magistrate had signed the warrant, to no avail. The court of appeals affirmed.
The Court of Criminal Appeals reversed in State v. Arellano.[20] The Court recognized the deficiency in the warrant but held that the deficiency did not automatically preclude an application of the “good-faith” exception to the state exclusionary rule in Art. 38.23(b). The Court remanded the case to the court of appeals to consider whether the blood evidence should be suppressed.
3. Make sure the State “wheeled” the defendant with something other than his own extra-judicial statements. Bene Taylor’s Volkswagen stalled out on the Southwest Freeway, demonstrating that driving a hooptee is not an adequate deterrent for driving while intoxicated. Tragically, this led to a collision. Taylor appeared intoxicated and later admitted to drinking “three beers” and driving. Taylor argued there was no evidence to establish the corpus delicti of the offense of driving because no evidence showed he was driving. The Fourteenth Court of Appeals disagreed in Taylor v. State.[21] The court noted that Taylor’s car was stopped in the main lane of the Southwest Freeway, with Taylor observed standing alone outside the car near the front door.
In another recent case, Van Alstyne Police got a call from a motorist that a gray minivan was driving dangerously and going all over the median. The police found the van parked in a McDonald’s parking lot moments after the caller indicated that the van had pulled into a McDonald’s parking lot. Police found Robert Harrell in the driver’s seat with his seatbelt on. Two other people were sitting in the back of the van. Spoiler alert: Harrell was intoxicated, and he admitted to driving the van. On appeal from his conviction, Harrell argued there was insufficient evidence establishing that he had operated a motor vehicle in a public place.
The Fifth Court of Appeals agreed and reversed. In Harrell v. State,[22] the court of appeals explained that the jury would have had to infer that Harrell was the person driving the van when the caller saw it on the highway based on the fact that he was sitting in the driver’s seat with his seat belt fastened. This was not sufficient based on facts to support a finding beyond a reasonable doubt.
The Court of Criminal Appeals has granted review in Harrell but not in Taylor. But more importantly, look at the added value here! Two cases for the price of one free summary.
2. Cars are not deadly weapons per se, so the State must present evidence regarding the way the car was used to justify a deadly weapon finding. Donald Couthren was driving on a frontage road when Frank Elbrich stepped in front of the vehicle and was struck. Couthren stopped and helped the bloodied Elbrich into the car. Ordinarily a trip to the hospital would be in order, but instead, Couthren drove to his girlfriend’s house to exchange vehicles.[23] At his girlfriend’s house, an argument ensued,[24] and police were called. At this point, police observed Elbrich bloody and incoherent still in the passenger seat of Couthren’s vehicle. Couthren admitted he struck the pedestrian but related that Elbrich was the one who stepped in front of him. Couthren later admitted to having consumed two “Four Loko” alcoholic beverages (thereby raising his loko level to eight). The State charged Couthren with felony driving while intoxicated and sought a deadly weapon finding based upon the use of the car. The court of appeals affirmed, but the Court of Criminal Appeals reversed in part.
In Couthren v. State,[25] the Court held that the only evidence establishing the collision was Couthren’s testimony that Elbrich stepped out in front of him; without more, the evidence did not establish how the car was used to cause serious bodily injury. Holding otherwise would effectively designate a motor vehicle a deadly weapon per se despite not being listed as such by the Legislature.[26]
1. An Art. 38.41 certificate of blood analysis signed by an assistant lab director, rather than the analyst, authorizes admission of a blood analysis report when the defendant failed to object 10 days prior to trial. After Andrew Williams killed a jogger with his car (by using it in a manner capable of causing death), the State charged him with failure to stop and render aid and manslaughter. The State told Williams and the trial court 50 days before trial that it would rely upon an Art. 38.41 certificate of analysis rather than live testimony from the analyst, but the assistant lab director signed the report rather than the analyst. When the State sought to introduce the report at trial, Williams objected that the failure to call the analyst to testify violated the Confrontation Clause.
In Williams v. State,[27] the Court of Criminal Appeals rejected this argument. The Court held that Williams had waived his Confrontation Clause complaint by failing to object at least 10 days prior to trial as the statute required. Even though the report failed to provide the information regarding the analyst required under the statute, the statute itself did not require the affidavit be sworn to by the analyst, so Williams’s argument at trial was that the report had to be sworn to by the analyst rather than the assistant director. Even though it did not comply with the statute, having included the information regarding the assistant lab director substantially complied with the statute. Of course, Williams was never bound by the certificate and could have insisted that the State call the analyst to testify by objecting 10 days prior to trial. Consequently, there was no Confrontation Clause violation.
Conclusion
And thus concludes our sometimes careening adventure through some of the more significant cases and issues in DWI law over the last year, give or take a month or three. I hope you have found something in here that was helpful going forward and that the summaries were in the appropriate serving size. Most importantly, I hope this article whet your appetite to read these cases yourself so you can get the full dining experience. Bon appétit.
Endnotes
[1] The Jerk (Universal 1979) (anything between the ashtrays and the thimbles, including the Chiclets but not the erasers).
[2] Editor’s note: This article originally appeared in the Summer 2020 issue of In Chambers published by the Texas Center for the Judiciary and has been reprinted here with permission.
[3] 139 S.Ct. 2525 (June 27, 2019).
[4] See, e.g., Missouri v. McNeely, 569 U.S. 141, 178 (2013) (noting that exigent circumstances exist in every driving while intoxicated case because the body is metabolizing the alcohol).
[5] 581 S.W.3d 782 (Tex. Crim. App. Sept. 11, 2019).
[6] 140 S.Ct. 1183 (Apr. 6, 2020).
[7] This is consistent with the approach taken by the Court of Criminal Appeals in cases like Woods v. State, 956 S.W.2d 33 (Tex. Crim. App. 1997) and Derischweiler v. State, 348 S.W.3d 906 (Tex. Crim. App. 2011). I could explain these chases to you at length, but where’s the fun in that?
[8] At the outset, it is important to note that this case does not involve Billy Joel. See, e.g, Joel, William, “We Didn’t Start the Fire,” Storm Front (Columbia 1989).
[9] 575 S.W.3d 929 (Tex. App.—Austin May 23, 2019, pet. ref’d).
[10] 2019 WL 3484428 (Tex. App.—Corpus Christi Aug. 1, 2019, pet. granted) (not designated for publication).
[11] 493 S.W.3d 552 (Tex. Crim. App. 2016) (plurality op.).
[12] 2020 WL 103805 (Tex. App.—Waco Jan. 8, 2020, pet. filed).
[13] ”Iron Chef” (Fuji Television 1993–1999).
[14] I’m going to stop calling him “Trooper Kral” because it makes him sound like a Klingon.
[15] This occurred in 2012. The apocalypse did not, despite early Mayan predictions.
[16] 595 S.W.3d 748 (Tex. App.—Austin Aug. 29, 2019, pet. ref’d).
[17] There was also some indication from the trooper that the blood draw was necessary to prevent the destruction of evidence due to possible medical procedures, but the court of appeals held that the record did not support the officer’s concern.
[18] 586 S.W.3d 451 (Tex. App.—Houston [1st Dist.] August 29, 2019, pet. granted).
[19] The State Prosecuting Attorney filed a petition for discretionary review, asking the Court to address whether the statute requires a showing of exigency. The Court of Criminal Appeals has granted it so the issue is currently pending.
[20] ___S.W.3d___, 2020 WL 2182258 (Tex. Crim. App. May 6, 2020).
[21] 572 S.W.3d 816 (Tex. App.—Houston [14th Dist.] April 9, 2019, pet. ref’d).
[22] 2019 WL 3955774 (Tex. App.—Dallas Aug. 22, 2019, pet. granted).
[23] Is this a sign of intoxicated thinking or non-intoxicated thinking?
[24] See footnote 7, supra.
[25] 571 S.W.3d 786 (Tex. Crim. App. April 17, 2019).
[26] This was a very close case, and I commend the dissenting opinion in the case to your consideration as well.
[27] 585 S.W.3d 478 (Tex. Crim. App. Oct. 9, 2019).