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Briggs v. State

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

November 21, 2017


         On appeal from the 186th District Court of Bexar County, Texas.




         Pending before the Court is the State's Amended Motion for Rehearing En Banc, which the Court construes as a motion for en banc reconsideration. See Tex. R. App. P. 49.7. We grant the motion and withdraw our original opinion and judgment, dated March 9, 2017, and we substitute the following opinion, dissenting opinion, and the accompanying judgment.

         Appellant Sandra Coy Briggs challenges the trial court's denial of her motion for new trial. By three issues, which we have reorganized and renumbered, Briggs contends the trial court abused its discretion when it denied her motion for new trial because: (1) it failed to rule on the issues presented; (2) Briggs's plea was not voluntary because it was induced by a misrepresentation of the law; and (3) the trial court's findings regarding exigent circumstances are not supported by the record. We reverse and remand.

         I. Background[1]

         It is undisputed that on January 12, 2012, after being admonished by the trial court, Briggs pleaded no contest to the charge of intoxication manslaughter of a public servant without a plea bargain agreement and elected to have a jury assess her punishment. See Tex. Transp. Code Ann. § 724.012(b)(1) (West, Westlaw through 2017 1st C.S.). On January 20, 2012, after a hearing where the trial court admitted Briggs's blood results that showed a blood-alcohol level of .14 percent at the time of the draw, the jury found Briggs guilty of intoxication manslaughter of a public servant, found her vehicle a deadly weapon used or exhibited during the commission of the offense, and sentenced Briggs to forty-five years in the Texas Department of Criminal Justice-Institutional Division.

         Briggs filed neither a timely motion for new trial nor a timely notice of appeal. However, the Texas Court of Criminal Appeals granted Briggs's application for a writ of habeas corpus, finding that Briggs was "entitled to the opportunity to file an out-of-time appeal" in this matter.[2] Ex parte Briggs, No. WR-82, 035-01, 2014 WL 5369818, at *1 (Tex. Crim. App. Sept. 24, 2014) (per curiam) (not designated for publication). The court of criminal appeals also determined that "[a]ll time limits shall be calculated as if the sentence had been imposed on the date on which the mandate of this Court issued, " which was December 10, 2014. Id. In other words, the court concluded that Briggs's case was not yet final.[3] See id.

         After mandate issued from the court of criminal appeals, Briggs filed her motion for new trial, urging, in relevant part, that she did not enter her plea voluntarily because counsel misrepresented the admissibility of her blood alcohol results under Texas Transportation Code section 724.012.[4] See Tex. Transp. Code Ann. § 724.012. Briggs noted that, according to the police report attached to her motion, her warrantless blood draw was not taken pursuant to a recognized exception to the warrant requirement. Instead, according to the report, the warrantless draw was accomplished pursuant to the mandatory provisions of section 724.012 because an individual had suffered serious bodily injury and later death from the accident. See id. Briggs claimed that the admissibility of her blood test results was a determining factor in deciding to plead no contest to the charges, instead of exercising her right to a trial. Briggs also discussed the applicability of Missouri v. McNeely and opinions issued by Texas courts subsequent to her sentencing. See 133 S.Ct. 1552, 1558 (2013); see also, e.g., State v. Villarreal, 475 S.W.3d 784, 813 (Tex. Crim. App. 2015) (op. on reh'g); Weems v. State, 434 S.W.3d 655, 659-60 (Tex. App.-San Antonio 2014), aff'd, 493 S.W.3d 574');">493 S.W.3d 574, 582 (Tex. Crim. App. 2016).

         On February 18, 2015, at the hearing on her motion for new trial, Briggs's trial counsel Ed Piker explained that his chief concern in the case had been the blood evidence secured as a result of a warrantless search. According to Piker, because the blood evidence was a significant problem for the defense, his ultimate goal had been to either discredit the blood evidence or keep it from coming in at trial. Piker testified that they considered a number of ways to challenge the admission of the blood evidence, but were unable to come up with an approach that would form the basis for a motion to suppress or that would keep the evidence out at trial. Instead, based on Piker's understanding of the law at the time-that a mandatory blood draw without the necessity of a warrant was proper in the event of serious bodily injury or death resulting from an accident-they decided Piker would not file a motion to suppress and Briggs would plead no contest and would allow a jury to assess punishment. Piker explained that he would have filed a motion to suppress had he understood the cases to hold that the transportation code cannot mandate a warrantless blood draw absent exigent circumstances, which he did not believe existed in this case "because [Briggs] was in custody from the very beginning." See, e.g., McNeely, 133 S.Ct. at 1558 (reaffirming Schmerber v. California, 384 U.S. 757, 767 (1966)); Villarreal, 475 S.W.3d at 813; Weems, 434 S.W.3d at 659-60. Piker stated that he would have advised Briggs to proceed to trial if the trial court had ordered the blood evidence suppressed.

         Briggs also testified at the hearing on her motion for new trial. Briggs explained that she did not consent to have her blood drawn, but that an officer ordered it drawn based on the Texas blood-draw statute. See Tex. Transp. Code Ann. § 724.012(b)(1). Briggs testified that she discussed the matter with Piker and was aware that the blood evidence would be problematic if she went to trial. She believed that the trial court would admit her blood evidence at trial, and if there had been a way to keep it from being used against her at trial, she would have wanted a trial.[5]

         After Briggs and the State rested and presented closing arguments at the motion-for-new-trial hearing, the trial court asked the State if it had "any exigent circumstances it [could] point to in this case with Ms. Briggs, assuming that the statute is unconstitutional and could not be effective for the State in this case?" The trial court continued: "Was there any other procedure that the officers could rely upon or the State could rely upon to say this was an exigent circumstance in this particular case and that's why a warrant would not have been able to have been obtained in the first place?"

         In response to the trial court's questions, counsel for the State identified what he believed were exigent circumstances that night, but also informed the court that he "was not the trial attorney on that case at trial" and did not "know if the detectives handling the case were asked about [other fatalities going on that night] at trial." Counsel commented that he "didn't know if [the court] wanted to hear from an additional witness specifically regarding exigent circumstances or not." The trial court responded, "I'd like to, " and allowed the State to call Sergeant Scott Foulke, a detective with the San Antonio Police Department's Traffic Investigation Unit, Homicide Division, who was at the scene that night.

         Before Sgt. Foulke testified, Briggs made the following objection:

I object to this line of testimony for one issue. We're not here on factual exigency circumstance basis in the Motion for New Trial. It's on whether or not the misrepresentations about the law to Ms. Briggs would have changed the course of how they proceeded with the case. And Mr. Piker and Ms. Briggs both testified that they would have done something differently. That's the standard that she needs to prove in order to obtain a new trial on an involuntary plea, so I would object to this line of testimony.

         The trial court overruled this objection.

         Sgt. Foulke provided testimony regarding the events of the night in question and his investigation, testimony that Briggs now argues completely contradicted the testimony of other officers at the punishment hearing in 2012. Nonetheless, at the hearing Sgt. Foulke explained, among other things, that "[a]nytime it involves a crash or a fatal or a near-fatal incident, it's always exigent because you want that sample as close to the time of the crash so it's the most accurate. And so anytime we deal with something like this, we're under exigent circumstances." After Sgt. Foulke testified, the trial court recessed the hearing.

         When the trial court reconvened the hearing two days later, it made the following oral findings:

After considering the motion, the testimony, exhibits, the case law, arguments, and the defendant's latest filing of Supplemental Motion for New Trial, I find that the defendant is in a posture to request a new trial. Once the appellate courts granted an out-of-time appeal, that puts her in a position to validly request a new trial.
I also find that she is no longer under a final judgment due to the out-of-time appeal. That being the case, she's entitled to have the law applied to her case that is in effect now and not at the time of the trial. Therefore, I find that McNeely can be applied retroactively to the defendant's case. However, when applying McNeely, I do not believe that McNeely affords relief for the defendant.
McNeely provided that the deterioration of blood evidence alone is not an exigent circumstance to obtain blood from a suspect without a warrant. McNeely requires a case-by-case analysis of the facts on the totality of the circumstances. McNeely did not prohibit warrantless searches in all circumstances.
Here, the facts show that the police unit dedicated to traffic fatalities was already involved in investigating an earlier fatality the same night this defendant caused her collision. The police relocated to defendant's crime scene and began their investigation. Due to the circumstances normal to any collision scene, such as allowing emergency medical personnel to conduct their procedures, to include ensuring that the defendant did not need further medical care, the police were delayed in determining that it was the defendant's actions that caused the collision. At that point, nearly three hours had lapsed since the time of the collision.
This case was not a regular or normal driving while intoxicated case. It seems that the time period to obtain blood in a traffic stop resulting in a DWI arrest is closer to 1.3 hours. Here, it seems that the time was of the essence before the blood decayed. There were other factors, however.
There was testimony as to Night CID, or Night Criminal Investigation Division, could have assisted the traffic unit in obtaining a warrant to draw the blood. Sergeant Foulke testified that he did not know the status of Night CID at the time and whether they were already engaged in their own investigations that night. Common sense would dictate that it would have taken longer to wait for a Night CID officer to appear and to have him or her be briefed on the situation in order for that officer to draft up a search warrant application.
In addition, Sergeant Foulke testified that to obtain a warrant would have added an additional 1.5 hours to obtaining blood evidence. Furthermore, the resources available at the time of the crime were different than they are now. The training or manpower for obtaining DWI warrants has, since the time of the crime, been improved, and the process is now streamlined under the, quote, "no refusal, " unquote, program.
For instance, now police officers have laptop computers at their disposal to draft warrant applications on scene without returning to the police headquarters, as it would have been in the defendant's case at that time.
When looking at all the factors in determining whether the blood could have been drawn without a warrant and considering that no mention-no Motion to Suppress was filed, it appears that the application of McNeely does not afford the defendant relief under new trial procedures via a Motion for New Trial because I believe obtaining a warrant in this situation would significantly undermine the efficacy of this search . . . .

         The trial court made no express oral findings regarding the voluntariness of Briggs's plea. No written findings regarding voluntariness appear in the record. See Tex. R. App. 21.8(b) ("In ruling on a motion for new trial, the court may make oral or written findings of fact"). The trial court denied Briggs's motion for new trial, and this appeal followed.

         II. Application of McNeely and its Progeny

         As a threshold matter, we must determine whether McNeely and subsequent Texas cases that rely on McNeely apply in this case. Briggs contends that McNeely applies because it did not create a new rule but, instead, followed Fourth Amendment precedent on warrantless searches. Briggs also asserts that even if McNeely created a new rule, it still applies because her case is not yet final.

         A. McNeely Did Not Set Out a New Rule

         We agree that McNeely did not set out a new constitutional rule. See State v. Tercero, 467 S.W.3d 1, 9 (Tex. App.-Houston [1st Dist.] 2015, pet. ref'd) (citing McNeely, 133 S.Ct. at 1556-58). McNeely clarified its 1966 Schmerber holding. Id. (citing McNeely, 133 S.Ct. at 1556-58). In Schmerber, after observing that the blood-alcohol evidence could have been lost, "[p]articularly in a case such as this, where time had to be taken to bring the accused to a hospital and to investigate the scene of the accident, there was no time to seek out a magistrate and secure a warrant, " the Court determined that there were exigent circumstances that supported a warrantless blood draw. 384 U.S. at 770. The McNeely Court explained that it applied the totality of the circumstances approach in Schmerber-considering all of the facts and circumstances of that particular case-and recognized that exigent circumstances might, in limited circumstances, provide an exception to the warrant requirement. See Tercero, 467 S.W.3d at 9 (citing McNeely, 133 S.Ct. at 1556-58). The McNeely Court explained that each case must be decided on its facts, as it did in Schmerber, and not on a "'considerable overgeneralization" that a per se rule would reflect. McNeely, 133 S.Ct. at 1561 (quoting Richards v. Wisconsin, 520 U.S. 385, 393 (1997)). Thus, consistent with its Schmerber review, the McNeely Court determined that the natural metabolization of alcohol in the bloodstream is not a per se exigency that justifies an exigency exception to the Fourth Amendment's warrant requirement. Id. at 1556; see also Weems v. State, 493 S.W.3d 574');">493 S.W.3d 574, 578 (Tex. Crim. App. 2016) (determining that sections of the transportation code that require a blood draw in certain circumstances do not provide an exception to the warrant requirement absent exigent circumstances); Villarreal, 475 S.W.3d at 813 (same); see also Pearson v. State, No. 13-11 -00137-CR, 2014 WL 895509, at *2-4 (Tex. App.- Corpus Christi Mar. 6, 2014, pet. refd) (mem. op., not designated for publication) (upholding a warrantless, exigent-circumstances blood draw).[6]

         B. Even if Setting Out a New Rule, McNeely Would Apply

         Moreover, even were we to conclude that McNeely created a new rule, "newly announced rules of constitutional criminal procedure must apply 'retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception.'" Davis v. U.S., 564 U.S. 229, 243 (2011) (quoting Griffith v. Kentucky, 479 U.S. 314, 328 (1987)); see McClintock v. State, 444 S.W.3d 15, 18 n.8 (Tex. Crim. App. 2014); 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); Tercero, 467 S.W.3d at 9-10; see also Bowman v. State, No. 05-13-01349-CR, 2015 WL 557205, at *10 (Tex. App.-Dallas 2015, no pet.) (not ...

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