January-February 2016

Using error preservation rules to clarify defense arguments

Andrea L. Westerfeld

Assistant Criminal ­District Attorney in Collin County

Preservation of error is often seen as a “gotcha” trick or something of interest only to appellate attorneys. But preservation rules can also help trial attorneys narrow broad claims and make sure they are able to address a defendant’s actual arguments. Moreover, it can keep a hearing focused on the issue at hand and prevent the State from being ambushed by additional arguments long after the fact.
    The Court of Criminal Appeals does not often address simple preservation arguments, but in Douds v. State, it considered a preservation analysis in a mandatory blood draw case.1 The principles laid out by the court in this review can be applied broadly, both in suppression hearings and in trials in general, to make sure the arguments the defendant raises are addressed and time is not wasted on generic global claims.

The facts
Mr. Douds was arrested for driving while intoxicated. He rear-ended another car while driving with his wife after a party. His wife complained of chest and rib pain and said she could not move her right arm, but she refused to be transported to the hospital by EMS. The officer suggested after EMS left the scene that she needed to be checked out, and her companions in another car said, “We’re taking her.” Officer Tran believed that meant they were taking Mrs. Douds to a hospital or emergency care. Thus, after he conducted field sobriety tests and arrested Mr. Douds for DWI, he determined Douds was subject to a mandatory blood draw.2 He took Douds to a medical center, where blood was drawn without a warrant and showed a blood alcohol level of 0.209.
    Douds filed two motions to suppress. One sought to suppress the blood test on the grounds that it did not comply with the Transportation Code. The other generically asked to suppress all evidence seized as a result of the illegal search and seizure. The trial court held a hearing, which was entirely focused on whether the blood draw complied with the Transportation Code. The provision upon which Officer Tran relied required an officer’s reasonable belief that a person was injured in a car accident caused by the defendant and that the other person’s injuries require transportation to a medical facility or hospital. Douds argued that his wife had not been transported a hospital because she refused the EMS transportation and the officer did not know whether her friends actually took her to a hospital. The trial court denied both motions. This hearing was conducted two years before the Supreme Court issued its opinion in Missouri v. McNeely, which has been used to challenge blood draws conducted pursuant to Texas’s mandatory draw statute.3

The court of appeals
On appeal, Douds again argued that the statutory requirements of the mandatory blood draw were not met because his wife did not seek medical treatment. He also argued that the statute, as applied to him, had resulted in a warrantless seizure of his blood. The Fourteenth Court of Appeals originally denied his claims.4 Douds applied for en banc reconsideration, which was granted. In June 2014, eight months after the original opinion, a closely divided court vacated the prior judgment and issued a new opinion concluding there were no exigent circumstances justifying the warrantless seizure of Douds’s blood.5 The court concluded that Douds had preserved this complaint because he raised the issue of warrantless seizure; thus, it was the State’s burden to prove the search was reasonable. Because there were “no facts from which to conclude” that a reasonable officer would have decided that obtaining a warrant was impractical, it reversed Douds’s conviction.

Preservation of error requires more than a global complaint
To preserve an issue on appeal, the opponent must make a timely objection with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context.6 There are two purposes to this rule: 1) it informs the judge of the basis of the objection and gives him an opportunity to rule on it, and 2) it gives opposing counsel an opportunity to respond. No specific words are necessary so long as the opponent lets the trial judge know what he wants and why he thinks he is entitled to it, and does so at a time when the court is in a position to do something about it.7
    The Court of Criminal Appeals acknowledged that, read in isolation, Douds’s first written motion could be construed as raising a challenge based on Officer Tran’s failure to obtain a warrant.8 But complaints cannot be considered in isolation. The reviewing court must consider the entire context of the suppression hearing. The evidence and arguments at the hearing were focused solely on whether Officer Tran reasonably believed Mrs. Douds was being transported for medical care. Douds and the State even submitted post-hearing trial briefs arguing the reasonableness of the officer’s belief. Douds never mentioned a general Fourth Amendment challenge and discussed Fourth Amendment law only briefly as part of his explanation for why the mandatory blood draw statute should be narrowly construed. The question of whether a warrant was required or the possibility of obtaining one was never discussed at all.
    Although the Fourth Amendment was mentioned in passing, such a broad complaint cannot be said to have fairly raised a McNeely-type complaint. Not only did Douds himself limit all of his argument and evidence to the issue, but the State and the trial court did as well. No one considered at the time that Douds was raising any other complaint than the Transportation Code violation. Therefore, Douds did not preserve this error on appeal.

Practical applications
While it’s rather interesting to appellate attorneys, what relevance does this case have for the trial prosecutors out there? It is important to remember that the Court of Criminal Appeals can pick and choose its cases, unlike the lower courts, so while the intermediate appellate courts address preservation routinely, it much more rarely makes its way to Austin. This session has also been fairly light on opinions issued. For the Court to choose to address a simple error preservation issue particularly shows the importance it places on the issue.
    Many suppression motions throw out a long laundry list of objections, complaining generally that the detention and/or stop and/or seizure and/or search and/or arrest and/or statements were all illegal. This can certainly be a challenge for the prosecutor attempting to prepare for the hearing. Indeed, some judges have been reluctant to ask a defendant to specify his precise complaint, leaving prosecutors guessing exactly what they are preparing for. The lower court opinion in Douds shows exactly the danger inherent in this for the State—the court ruled against the State because there was no evidence presented on an issue that was never brought up during the hearing.
    Fortunately, the Court of Criminal Appeals recognized the impossible situation in which the lower court placed the State. Its opinion in Douds sends a message to trial courts and attorneys alike that complaints must be specific to preserve error. Prosecutors are entitled to know what arguments they are responding to and thus what evidence they must present to prevail. Trial courts are entitled to know what they are being asked to rule upon. And a good defense attorney should want to specify his exact complaint so the judge can rule on it. Trial attorneys should not be afraid to ask a defense attorney to clarify the exact nature of his complaint if they are left guessing what to respond to, and Douds gives trial courts support in requiring the defense attorney to do so.
    Although it does not lay out any new law, Douds reminds attorneys and judges alike of the importance of a clear objection, both for its own sake and for the importance the appellate courts place on it. It is a useful tool to ensure that a trial prosecutor is able to spend his time preparing for the right issues and make sure suppression hearings are not mere exercises in frustration. Far from being an esoteric concept of appellate law, rules of error preservation can make a trial clearer on the ground so there are no nasty surprises later.

What it did not do
It is important to remember that this case was argued two years before McNeely, so the defense did not raise any arguments that the blood draw was not justified by exigent circumstances. That issue was thus not before the Court of Criminal Appeals here. This case will not be useful for arguing any McNeely or Villareal9 issues or in resolving when a warrantless blood draw was justified.


1 Douds v. State, No. PD-0857-14, 2015 WL 5981121, at *1 (Tex. Crim. App.—Oct. 14, 2015).
2 See Tex. Transp. Code §724.012(b)(1)(C), which requires an officer to collect a blood specimen if he reasonably believes that the suspect has caused a car accident that resulted in bodily injury to another person requiring that person to be transported to a medical facility for treatment.
3 Missouri v. McNeely, 133 S.Ct. 1552 (2013).
4 Douds v. State, No. 14-12-00642-CR, 2013 WL 5629818 (Tex. App.—Houston [14th Dist.] Oct. 15, 2013).
5 Douds v. State, 434 S.W.3d 842 (Tex. App.—Houston [14th Dist.] June 5, 2014).
6 Tex. R. App. P. 33.1(a)(1)(A).
7 Douds, slip op. at 8-99.
8 Douds, slip op. at 9-13.
9 State v. Villareal, ___ S.W.3d ___ (Tex. Crim. App. Dec. 16, 2015).