Appeal from the 268th District Court Fort Bend County, Texas
Trial Court Case No. 10-DCR-055898
consists of Justices Keyes, Higley, and Landau.
Beth Landau Justice.
Michael McGuire is charged with felony murder for the death
of a motorcyclist McGuire struck while allegedly intoxicated.
McGuire moved to suppress evidence obtained after his arrest,
arguing that his warrantless arrest was unlawful. The State
argued that Article 14.03(a)(1) of the Code of Criminal
Procedure authorized McGuire's warrantless arrest because
McGuire was found in a suspicious place. Tex. Code Crim.
Proc. art. 14.03(a)(1). The trial court granted McGuire's
motion to suppress, and the State appealed. See Tex.
Code Crim. Proc. art. 44.01(a)(5) (permitting State an
interlocutory appeal of an order granting a criminal
defendant's motion to suppress evidence).
the Court of Criminal Appeals has interpreted Article
14.03(a)(1) to require the State to show exigent
circumstances to arrest without a warrant under
Article 14.03(a)(1) and the State did not, we affirm.
Swain v. State, 181 S.W.3d 359, 366 (Tex. Crim. App.
2005); Gallups v. State, 151 S.W.3d 196, 202 (Tex.
Crim. App. 2004); Minassian v. State, 490 S.W.3d
629, 637 (Tex. App.-Houston [1st Dist.] 2016, no pet.)
(describing Swain as holding that "warrantless
arrest under [Article] 14.03(a)(1) requires showing of
exigent circumstances"); cf. Bell v. State, No.
02-17-00299-CR, 2019 WL 3024481, at *2-3 (Tex. App.-Fort
Worth July 11, 2019) (mem. op., not designated for
publication) (noting Swain exigency requirement and
numerous intermediate appellate court opinions applying
Swain to require proof of exigency when State relies
on Article 14.03(a)(1)'s suspicious-place exception).
one evening, Sean Michael McGuire was driving home when his
truck struck a motorcycle driven by David Stidman. McGuire
made a U-turn and pulled into the parking area of a nearby
Shell gas station. McGuire called his mother and two people
he knew in law enforcement. After calling them, McGuire
waited at the gas station.
the police were investigating the discovery of a motorcycle
and dead motorist. During their investigation, the police
were told that McGuire was waiting at the Shell gas station.
They went to the gas station. At least one officer who spoke
with McGuire suspected he had been driving while intoxicated.
police drove McGuire to the location of Stidman's body.
There, McGuire was arrested. He was taken to a local hospital
where a warrantless, nonconsensual blood draw was performed
to determine his blood-alcohol content.
was charged with felony murder on the basis that he was
driving while intoxicated, he had two prior out-of-state
DWIs, and those DWIs elevated this offense to a first-degree
felony. See Tex. Penal Code §§ 19.02(b)(3)
(felony murder), 49.09(b)(2) (enhancing DWI to felony).
moved to suppress evidence on the argument that his
warrantless arrest and warrantless search were unlawful.
Among his arguments, he contended that the warrantless blood
draw was an unlawful search in violation of the Fourth
Amendment. His motion to suppress was denied. He was
convicted of murder and appealed. This Court reversed his
conviction, holding that the warrantless, nonconsensual blood
draw violated McGuire's Fourth Amendment right to be free
from unreasonable searches as recognized in Missouri v.
McNeely, 569 U.S. 141 (2013). See McGuire v.
State, 493 S.W.3d 177, 199 (Tex. App.-Houston [1st
Dist.] 2016, pet. ref'd); see also id. at 202
(stating, "All remaining issues raised in McGuire's
appeal of the murder conviction are moot."). The case
was remanded and set for retrial in 2018.
advance of retrial, McGuire filed another motion to suppress
evidence. He argued that his warrantless arrest
was unlawful and did not fit within any of the Chapter 14
exceptions to the warrant requirement. See Tex. Code
Crim. Proc. art. 14.01-.06. In the State's written
response and at the suppression hearing, the State argued
that the arrest fell within the suspicious-place warrant
exception under Article 14.03(a)(1), but the State did not
note the exigency requirement, point to any evidence that
might satisfy the exigency requirement, or argue that a per
se exigency exists.
trial court-with a different trial judge than the one who
presided over the first trial-did not receive any new
evidence at the 2018 suppression hearing. Instead, the court
reviewed the 2012 suppression-hearing transcript, the 2016
trial testimony, and the parties' pleadings. After
considering these materials and the parties' motion and
response, the trial court granted McGuire's motion to
suppress, and the State appealed.
courts review a trial court's ruling on a motion to
suppress using a bifurcated standard of review. State v.
Martinez, 570 S.W.3d 278, 281 (Tex. 2019). Under the
bifurcated standard, the trial court is given almost complete
deference in its determination of historical facts,
especially if based on an assessment of demeanor and
credibility, and the same deference is afforded the trial
court for its rulings on application of law to questions of
fact and to mixed questions of law and fact, if resolution of
those questions depends on an evaluation of demeanor and
credibility. Id. However, for mixed questions of law
and fact that do not fall within that category, the reviewing
court may conduct a de novo review. Id. Our review
of questions of law is de novo. Id.
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). This is so even if the trial
judge gives the wrong reason for its decision. Id.; State
v. Ross, 32 S.W.3d 853, 855-56 (Tex. Crim. App. 2000);
State v. Brabson, 899 S.W.2d 741, 745-46 (Tex.
App.-Dallas 1995), aff'd, 976 S.W.2d 182 (Tex.
Crim. App. 1998) (stating that, in context of reviewing trial
court order granting motion to suppress "we cannot limit
our review of the [trial] court's ruling to the ground
upon which it relied. We must review the record to determine
if there is any valid basis upon which to affirm the county
criminal court's ruling").
14.03(a)(1) and the Necessary Showing of Exigency
arrests in Texas are authorized only in limited
circumstances. Swain, 181 S.W.3d at 366. Once a
defendant has established that an arrest has occurred and
that no warrant was obtained, the burden shifts to the State
to show that the arrest was within an exception to the
warrant requirement. Covarrubia v. State, 902 S.W.2d
549, 553 (Tex. App.-Houston [1st Dist] 1995, pet. ref d);
Holland v. State, 788 S.W.2d 112, 113 (Tex.
App.-Dallas 1990, pet. ref d). Most of the exceptions to the
warrant requirement are found in Chapter 14 of the Code of
Criminal Procedure. See Swain, 181 S.W.3d at 366;
Tex. Code Crim. Proc. art. 14.01-.06 (delineating those
circumstances in which warrantless arrests are permissible).
The validity of a warrantless arrest can only be decided by
the specific factual situation in each individual case.
Holland, 788 S.W.2d at 113.
exception relied on by the State in this appeal is found in
Article 14.03(a)(1), which provides:
Any peace officer may arrest, without warrant . . . persons
found in suspicious places and under circumstances which
reasonably show that such persons have been guilty of some
felony . . . breach of the peace, or [various other listed
offenses] . . . or are about to commit some offense against
Tex. Code Crim. Proc. art. 14.03(a)(1).
Court of Criminal Appeals has held that, when relying on
Article 14.03(a)(1), the State must establish that (1)
probable cause existed, (2) the person was found in a
suspicious place, and (3) "exigent circumstances call
for immediate action or detention by police."
Swain, 181 S. W3d at 366 (concluding that exigent
circumstances were established on evidence that person
arrested had just admitted to leaving injured woman in
secluded area after beating her during robbery, police
perceived urgent need to find woman before she died from her
injuries, and held additional concern that person who had
admitted his involvement might flee); Gallups, 151 S.W.3d at
202; cf Dyar v State, 125 S.W.3d 460, 470-71 & n13
(Cochran, J, concurring) (stating that "if there are no
exigent circumstances that call for immediate action or
detention by the police, article 14.03(a)(1) cannot be used
to justify a warrantless arrest") (citing Gerald S.
Reamey, Arrests in Texas's "Suspicious
Places": A Rule in Search of Reason, 31 Tex. Tech
L. Rev. 931, 967- 77, 980 (2000)).
least five intermediate courts-including this one-have noted
the State's burden to establish exigent circumstances
when relying on Article 14.03(a)(1). See, e.g.,
Minassian v. State, 490 S.W.3d 629, 637 (Tex.
App.-Houston [1st Dist.] 2016, no pet.) (describing
Swain as holding that "warrantless arrest under
Section 14.03(a)(1) requires showing of exigent
circumstances" and concluding that risk of destruction
of computer-data evidence on laptops established exigency);
Polly v. State, 533 S.W.3d 439, 443 & n.4 (Tex.
App.-San Antonio 2016, no pet.) (relying on Swain
for proposition that exigency must be established for
warrantless arrest under Article 14.03(a)(1)); see also
Cook v. State, 509 S.W.3d 591, 603-04 (Tex. App.-Fort
Worth 2016, no pet.); LeCourias v. State, 341 S.W.3d
483, 489 (Tex. App.-Houston [14th Dist.] 2011, no pet.);
State v. Morales, No. 08-09-00137-CR, 2010 WL
819126, at *2 (Tex. App.-El Paso Mar. 10, 2010, no pet.)
(mem. op., not designated for publication).
are several pre-2013 appellate court cases in which Texas
intermediate appellate courts have held that the natural
dissipation of alcohol in a suspect's blood provides an
exigency under Article 14.03(a)(1) in that dissipation
destroys evidence of a DWI offense. See, e.g.,
Gallups, 151 S.W.3d at 202 (stating that "need
to ascertain appellant's blood-alcohol level" was
exigent circumstance); Winter v. State, 902 S.W.2d
571, 575-76 (Tex. App.-Houston [1st Dist.] 1995, no pet.);
Morales, 2010 WL 819126, at *2; State v.
Wrenn, No. 05-08-01114-CR, 2009 WL 1942183, at *3 (Tex.
App.-Dallas July 8, 2009, no pet.) (mem. op., not designated
2013, the United States Supreme Court ruled that the
dissipation of alcohol does not provide a per se exigency to
relieve the State of the requirement of a search warrant when
conducting an unconsented-to blood draw of a DWI suspect.
McNeely, 569 U.S. at 155. Since McNeely, at
least one intermediate appellate court has held that the
dissipation of alcohol does not, without more, meet Article
14.03(a)(1)'s exigency requirement either. State v.
Donohoo, No. 04-15-00291-CR, 2016 WL 3442258, at *6
(Tex. App.-San Antonio June 22, 2016, no pet.) (mem. op., not
designated for publication) (stating that
"McNeely forecloses the State's
position" that "exigent circumstances called for
Donohoo's immediate arrest" on its singular argument
that it needed to obtain his blood-alcohol level before the
natural dissipation of alcohol); see also Bell, 2019
WL 3024481, at *2 n.2 (citing McNeely in discussion
of exigency justifying arrest); but see Dansby v.
State, 530 S.W.3d 213, 222 (Tex. App.-Tyler 2017, pet.
ref'd) (relying on Gallups, and without citation
to McNeely or discussion of any case-specific facts
influencing ability to timely obtain warrant, holding that
"exigent circumstances-the need to ascertain
Appellant's alcohol concentration-existed to justify
Appellant's immediate arrest" under Article
14.03(a)(1)); Lewis v. State, 412 S.W.3d 794, 802
(Tex. App.-Amarillo 2013, no pet.) (without citing
McNeely or discussing any case-specific facts
influencing ability to timely obtain warrant, holding that
officer "needed to take prompt action to ascertain
appellant's blood-alcohol level" and exigency
existed to support warrantless arrest under Article
the State does not argue that the dissipation of alcohol
provided the necessary exigency, either per se or based on
the particular facts of McGuire's arrest. In fact, the
State's position is that no exigency requirement exists
at all. At oral argument, the State explained that it reads
Minassian to say that no exigency is required under
Article 14.03(a)(1). But the State misreads the case's
holding. This Court stated, in Minassian, that proof
of exigency circumstances is not required "to pass
constitutional muster" in the context of a warrantless
felony arrest made in a public place but that more had to be
considered to review the lawfulness of the arrest at issue
because Article 14.03(a)(1) additionally "requires
exigent circumstances to make a warrantless arrest premised
on suspicious activity in a suspicious place." 490
S.W.3d at 639 (citing Swain, 181 S.W.3d at 366).
Proof of exigent circumstances is required when the State
relies on Article 14.03(a)(1) to justify a warrantless
State had the burden at the 2018 suppression hearing to
establish exigent circumstances to permit the warrantless
arrest of McGuire, but it did not.
State Made No Showing of Exigency; Therefore, the Trial Court
Did Not Err in Granting Motion to Suppress
appellate brief, the State presents three arguments why the
trial court erred in granting McGuire's suppression
motion; however, the State fails to point to any evidence of
exigent circumstances. This is consistent with the
State's presentation of the issues to the trial court.
Neither the State's response to McGuire's motion to
suppress nor its arguments at the suppression hearing
failure of evidence provided a basis for the trial court to
grant McGuire's motion to suppress. On appeal of the
grant of a motion to suppress, "[w]e must review the
record to determine if there is any valid basis upon which to
affirm the [trial] court's ruling."
Brabson, 899 S.W.2d at 745-46. Because the State did
not meet its evidentiary burden to bring McGuire's arrest
within the sole warrant exception on which it relied, we must
affirm the trial court's order granting the motion to
suppress. The dissent's approach fails to hold the State
to its evidentiary burden or follow this well-established
standard of review.
the State had sought to meet its burden to establish an
exigency, there is no basis on which the trial court could
have found a per se or case-specific exigency on this record.
The State could not rely on McGuire's alleged
intoxication to argue a per se exigency because, after
McNeely, there is no per se exigency for dissipation
of alcohol in a suspect's blood. 569 U.S. at 164; see
Donohoo, 2016 WL 3442258, at *6 (relying on
McNeely to reject State's argument for
warrantless arrest under Article 14.03(a)(1) based on
dissipation of suspect's blood-alcohol level, given that
officers had testified they never sought warrant); see
also Bell, 2019 WL 3024481, at *2 n.2 (in connection
with holding that, under Swain, exigent
circumstances must be shown, noting that the United States
Supreme Court held, in McNeely, that "the
natural metabolization of alcohol in the bloodstream does not
present a per se exigency but must be determined on
a case-by-case basis on the totality of the
do the case-specific facts establish an exigency to
successfully challenge the suppression order. McGuire called
his mother from the Shell gas station before he interacted
with any police officers, and she drove to the gas station to
wait with him. She was available to drive him, should he have
been allowed to leave, which meant there was no danger of
subsequent driving while intoxicated. Cf. York v.
State, 342 S.W.3d 528, 536-37 (Tex. Crim. App. 2011)
(evidence of defendant's running vehicle warranted
reasonable belief that, if defendant were intoxicated, he
would eventually endanger himself and others when he drove
vehicle home). Moreover, McGuire waited at the gas station
for law enforcement to arrive and agreed to ride with the
officers to the location where Stidman's body was
located. There was no evidence that, after the police engaged
McGuire, they held any concern that McGuire would attempt to
flee. Cf. Villalobos v. State, No. 14-16-00593-CR,
2018 WL 2307740, at *6 (Tex. App.-Houston [14th Dist.] May
22, 2018, pet. ref'd) (mem. op., not designated for
publication) (concluding that Article 14.03(a)(1)
requirements were met on evidence driver "needed to be
detained because he had fled scene of accident").
any evidence or argument that an exigency existed, we must
conclude that the State failed to meet its burden to
establish that McGuire's warrantless arrest was
authorized under Article 14.03(a)(1), on which the State
relied. See Brabson, 899 S.W.2d at 745-46; cf.
Buchanan v. State, 175 S.W.3d 868, 876 (Tex. App.-
Texarkana 2005) (concluding that State failed to establish
exigent circumstances to support warrantless arrest under
Article 14.03(a)(1) because there was no evidence suspect was
going to escape or that urgency existed, and stating,
"We cannot interpret Article 14.03(a)(1) to be so
encompassing that it swallows the general rule that a valid
arrest should be based on an arrest warrant."),
rev'd on waiver grounds, 207 S.W.3d 772 (Tex.
Crim. App. 2006).
we conclude that the trial court did not err in granting
McGuire's motion to suppress. See Laney, 117
S.W.3d at 857 (stating that ruling on motion to suppress must
be upheld if legally correct even if trial court did not
present same basis in its ruling). In light of our holding,
we do not reach any other issues raised in the State's
dissent addresses three issues that require a response:
whether Article 14.03 requires a showing of exigency, whose
burden it is to make that showing, and whether certain facts
or circumstances ...