MICHAEL MASSENGALE

Tad Nelson, Amber Spurlock, Tad Nelson & Associates, League City, TX, for Appellant. Jack Roady, District Attorney, Rebecca Klaren, Assistant District Attorney, Galveston County, Galveston, TX, for Appellee.
Panel consists of Justices KEYES, HIGLEY, and MASSENGALE.

OPINION

MICHAEL MASSENGALE, Justice.

This appeal concerns a Texas statute which requires a law enforcement officer to take a blood sample from a suspect arrested for driving while intoxicated when the officer has reliable information from a credible source that the suspect has two prior convictions for driving while intoxicated. SeeTex. Transp. Code Ann. § 724.012(b) (West 2011). Appellant Michael Joe Lyssy was charged by information with the misdemeanor offense of driving while intoxicated. SeeTex. Penal Code Ann. § 49.04 (West 2011). Lyssy moved to suppress evidence of a blood draw taken the night of his arrest. He argued that the report of his criminal history on which the officer relied was not reliable or credible because it listed a conviction for “driving while intoxicated 2nd” but no prior DWI conviction. The trial court denied this motion. After the trial court denied his motion to suppress, Lyssy entered a plea of nolo contendere and was convicted of driving while intoxicated.

In his sole appellate issue, Lyssy argues that the trial court erred by denying his motion to suppress. We affirm.

Background

Officer Gavino Rivas of the League City Police Department stopped Lyssy for failing to maintain a single lane of traffic. Rivas performed a field sobriety test. He also asked Lyssy to blow into a breathalyzer, but was refused. He then arrested Lyssy.

Rivas called League City dispatch and asked for a report on Lyssy from two databases, the Texas Crime Information Center and the National Crime Information Center (TCIC/NCIC). Rivas provided Lyssy's license plate number and his driver's license number to query. The resulting report listed multiple event cycles, including an arrest nearly seven years earlier, which the database reported resulted in a guilty plea and conviction for the class A misdemeanor offense of “driving while intoxicated 2nd.” No other DWI conviction was included in the report.

Dispatch orally reported its findings to Rivas over the radio. In Rivas's words, “The results came back that Mr. Lyssy's license was suspended, that he had prior convictions for driving while license suspended, and he had ... a conviction for DWI second conviction.” Rivas testified that he did not remember hearing anything about a first offense for DWI.

Based upon this information and the mandatory blood-draw statute (Transportation Code chapter 724), Rivas requested a sample of Lyssy's blood without obtaining a warrant. Lyssy refused. Rivas transported him to the hospital where one of its employees extracted a blood specimen.

At the subsequent hearing on Lyssy's motion to suppress the evidence resulting from the blood draw, Rivas testified, “From the information I have now ... he did not have two convictions.” He also testified that on the night of the arrest, he relied on the TCIC/NCIC report to conclude that Lyssy “did have two prior convictions for driving while intoxicated,” and at the time he had no reason to doubt that information from the report.

The TCIC database is maintained by the Texas Department of Public Safety. Both TCIC and NCIC are updated “24/7.” Each participating law enforcement agency inputs its own information on arrests. It is the responsibility of each agency to check the information it inputs for accuracy. As Rivas described TCIC/NCIC:

It's ... the database of all criminal histories, both within Texas and nationally. It's administered by the individual law enforcement agencies. For League City, we place everything there, from stolen vehicles, missing children, warrants, things like that; and we're responsible for administering our portion of the database.
Rivas was asked how often he relies on information from TCIC/NCIC. He replied, “any incident, any contact with a potential subject, we rely on the returns given by our dispatch via TCIC/NCIC.” He testified that he has found information from TCIC/NCIC to be credible and reliable in the past. When questioned whether he had ever had a problems with the accuracy of information from the databases, he answered, “On a general basis, no, sir.” The trial court denied the motion to suppress.

Pursuant to a plea bargain, Lyssy pleaded nolo contendere and was sentenced by the trial court to 365 days in jail, in addition to a $300 fine. The court suspended this sentence and imposed a twenty-four month term of community supervision. The trial court certified his right to appeal its decision on the motion to suppress.

Analysis

In his appellate brief, Lyssy offers two reasons why the blood evidence should have been suppressed. His first reason is that the statute relied upon by the State to justify the blood draw, Tex. Transp. Code Ann. § 724.012(b), is no longer a legitimate basis for search in light of Missouri v. McNeely, ––– U.S. ––––, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013). His second reason is that the statute itself was not satisfied because the officer lacked reliable information that Lyssy had two prior convictions for driving while intoxicated, as would require a blood draw under the statute.

The relevant portion of the Transportation Code reads as follows:

(b) A peace officer shall require the taking of a specimen of the person's breath or blood under any of the following circumstances if the officer arrests the person for an offense under Chapter 49, Penal Code, involving the operation of a motor vehicle or a watercraft and the person refuses the officer's request to submit to the taking of a specimen voluntarily:

...

(3) at the time of the arrest, the officer possesses or receives reliable information from a credible source that the person:

...

(B) on two or more occasions, has been previously convicted of or placed on community supervision for an offense under Section 49.04 [Driving While Intoxicated], 49.05, 49.06, or 49.065, Penal Code, or an offense under the laws of another state containing elements substantially similar to the elements of an offense under those sections.

(c) The peace officer shall designate the type of specimen to be taken.
Tex. Transp. Code Ann. § 724.012(b)(3)(B), (c). When a person is arrested under the circumstances described in section 724.012(b), that person's refusal to submit to the taking of the specimen does not suspend the officer's statutory duty to take it. Id. § 724.013.

I. Waiver of constitutional challenge to section 724.012(b)

In his brief, Lyssy asserts that extraction of blood pursuant to section 724.012(b) is unconstitutional given the Supreme Court's decision in McNeely. However, Lyssy did not argue before the trial court that blood extraction pursuant to section 724.012(b) was unconstitutional. Lyssy's argument at the hearing on his motion to suppress was directed solely at whether the statutory predicates for a blood draw were satisfied. RR 37–43. At no point during the hearing did he attack the legitimacy of the statute as a basis for taking blood in the absence of a warrant.

In order for a defendant to preserve his complaint for appellate review, he must present to the trial court a timely objection, request, or motion stating the specific grounds for the ruling he wishes. Tex.R.App. P. 33.1(a). An appellant's issue must correspond with the objection he made at trial. Broxton v. State, 909 S.W.2d 912, 918 (Tex.Crim.App.1995). “ ‘An objection stating one legal theory may not be used to support a different legal theory on appeal.’ ” Id. (quoting Johnson v. State, 803 S.W.2d 272, 292 (Tex.Crim.App.1990)). This is true even if the alleged error implicates constitutional guaranties. Id.

“The purpose of requiring a specific objection in the trial court is twofold: (1) to inform the trial judge of the basis of the objection and give him the opportunity to rule on it; (2) to give opposing counsel the opportunity to respond to the complaint.” Resendez v. State, 306 S.W.3d 308, 312 (Tex.Crim.App.2009). “[A] party must be specific enough so as to ‘let the trial judge know what he wants, why he thinks himself entitled to it, and do so clearly enough for the judge to understand him at a time when the trial court is in a proper position to do something about it.’ ” Id. at 313.

To decide whether a general complaint was sufficient to preserve error, context must be considered. Id. “When the correct ground for exclusion was obvious to the judge and opposing counsel, no forfeiture results from a general or imprecise objection.” Id. On the other hand, “when the context shows that a party failed to effectively communicate his argument, then the error will be deemed forfeited on appeal.” Id.

The arguments and evidence at the hearing were narrowly focused on whether the information requirements of section 724.012(b)(3) were satisfied. The constitutionality of a search pursuant to the statute was not called into doubt. Looking to Lyssy's written motion to suppress, he likewise did not specifically challenge the constitutionality of blood draws made under the statute's authority. CR 17–20. Although he did complain that the search was warrantless and conducted in the absence of exigent circumstances, he did so in a general form:

The warrantless stop and search of the Defendant and the automobile and Defendants' personal property and the interrogation of Defendant by the police were void and illegal because they were conducted in the absence of exigent circumstances to stop the vehicle which Defendant was driving and search him and the vehicle.
(Emphasis supplied.) Considered in context, we conclude that this language was not sufficient to inform the trial court and opposing counsel of a challenge to the validity of searches under section 724.012(b). See id. at 312;cf. Buchanan v. State, 207 S.W.3d 772, 777 (Tex.Crim.App.2006) ( “[T]rial counsel's allusions to ‘consent’ and ‘exigent circumstances' do not necessarily or exclusively refer to Chapter 14, so as to make it ‘obvious' that the appellant was raising it in addition to his purely constitutional claims.”).

It is true that Lyssy's appellate objection to the constitutionality of the search hinges on his claim that exigent circumstances were absent. Still, this is not sufficient to interpret Lyssy's written motion to suppress as a challenge to the constitutionality of searches pursuant to the statute. This is because “a complaint that could, in isolation, be read to express more than one legal argument will generally not preserve all potentially relevant arguments for appeal.” Resendez, 306 S.W.3d at 314. As the Court of Criminal Appeals has held, “Only when there are clear contextual clues indicating that the party was, in fact, making a particular argument will that argument be preserved.” Id. The context of the motion to suppress, as it developed at the hearing, demonstrates that Lyssy's challenge was based solely on a failure to observe the statute's terms, not an attack on the constitutionality of what it authorizes. See id. We conclude that Lyssy forfeited his objection to the constitutionality of taking blood under section 724.012(b). See id. at 316–17. As such, we assume, without deciding, the constitutionality of section 724.012(b) for purposes of this appeal.

II. Reliability of information to justify blood draw

Lyssy's second argument is that even if section 724.012(b) is a constitutional basis for a warrantless search, “the blood draw must still be excluded because the information received by Officer Rivas had an error on its face making it internally inconsistent and unreliable.” We review a trial court's decision on a motion to suppress using a bifurcated standard of review. Valtierra v. State, 310 S.W.3d 442, 447 (Tex.Crim.App.2010). While we show “almost total deference” to the trial court's determinations of historical fact, we review its application of the law of search and seizure to the facts de novo. Id. Since the trial judge in this case did not make express findings of fact, we will imply “the necessary fact findings that would support the trial court's ruling if the evidence (viewed in the light most favorable to the trial court's ruling) supports these implied fact findings.” State v. Kelly, 204 S.W.3d 808, 819 (Tex.Crim.App.2006). Ultimately, “[w]e will sustain the trial court's ruling if its ruling is ‘reasonably supported by the record and is correct on any theory of law applicable to the case.’ ” Valtierra, at 447–48 (quoting State v. Dixon, 206 S.W.3d 587, 590 (Tex.Crim.App.2006)).

The Transportation Code establishes that motor vehicle operators who are arrested for DWI offenses are deemed to have consented, subject to the remainder of the chapter, “to the taking of one or more specimens of the person's breath or blood for analysis to determine the alcohol concentration or the presence in the person's body of a controlled substance, drug, dangerous drug, or other substance.” Tex. Transp. Code Ann. § 724.011(a). Separate from the concept of implied consent by drivers arrested on suspicion of DWI, the statute also requires an officer to take a breath or blood specimen when “at the time of the arrest, the officer possesses or receives reliable information from a credible source that the person ... on two or more occasions, has been previously convicted of or placed on community supervision for [driving while intoxicated] ....” Id.§ 724.012(b)(3).

Lyssy does not challenge the credibility of TCIC/NCIC as a source of information or the credibility of the League City Police Department dispatcher as a conduit of TCIC/NCIC information to an officer in the field. What he does challenge is the reliability of the information Rivas received from the dispatcher: he asserts that it contained an error that made it internally inconsistent. Specifically, Rivas was told that Lyssy had a conviction for “DWI Second Conviction,” but he was not specifically informed of any other convictionsfor driving while intoxicated. Lyssy thus argues that the information Rivas received was patently inconsistent and therefore unreliable.

Rivas testified that he relies on TCIC/NCIC for “any contact with a potential subject,” that he has found information from the database to be credible and reliable, and that “on a general basis,” he has had no problems with the accuracy of the database. Any discrepancy inferred from the bare fact that Rivas was informed of a “DWI Second Conviction” but not a first conviction for driving while intoxicated did not necessarily render the information Rivas received from his dispatcher unreliable.

In Comperry v. State, an officer arrested the defendant for driving while intoxicated and took him to jail. 375 S.W.3d 508, 510 (Tex.App.-Houston [14th Dist.] 2012, no pet.). Once there, the officer obtained a TCIC printout for the defendant. Id. The report listed two convictions for driving while intoxicated, one in Harris County and one in Galveston County. Id. In reality, the defendant had only been convicted once of DWI. Id. at 511. The event cycle for the Galveston County matter recited that the defendant had been arrested for DWI. Id. at 510. It then listed two convictions—one for obstructing a highway and one for DWI—but the defendant actually had been convicted only of obstructing a highway. Id. The defendant further argued that the information contained in the TCIC report contained “facial irregularities” because the convictions were “the result of the same plea on the same date, in the same court, and under the same cause number.” Id. at 516–17. The defendant argued that the irregularities should have alerted the officer and spurred an investigation of the underlying facts. Id. Despite the trial court's finding that the information was “confusing and possibly incorrect in the way it [was] displayed,” id. at 511, the court of appeals rejected the defendant's position. See id. at 517. It reasoned that the TCIC record “plainly reflected” multiple convictions for driving while intoxicated and that an officer need not “so closely examine a TCIC report before being entitled to rely on it.” Id.

In the present case, Rivas was told by the dispatcher that Lyssy had a conviction for “DWI Second Conviction.” As in Comperry, this information implied multiple convictions for driving while intoxicated. See id. While the information communicated to Rivas could be characterized as being incomplete insofar as the dispatcher did not also mention a first conviction for DWI, Rivas did not have to further investigate the information he received “before being entitled to rely on it” in the field. See id.; see also State v. Terrazas, 406 S.W.3d 689, 694 (Tex.App.-El Paso 2013, no pet.) (“[L]aw enforcement investigating or confirming criminal history is not a requirement under [the blood draw statute].”).

Later, with the benefit of additional information obtained by the time of the hearing on the motion to suppress, Rivas testified that the report contained an error. But nothing contained in the information received from TCIC/NCIC or in the information communicated by the dispatcher to Rivas rose to the level of a glaring contradiction that would undermine the general reliability of the information coming from a source that has not been challenged on the basis of its credibility. The trial court therefore reasonably could have concluded that the report's inclusion of a conviction specifically identified as “driving while intoxicated 2nd” was not rendered facially unreliable simply because the report did not also separately identify the preceding DWI conviction.

We conclude that the record supports the conclusion that when Rivas heard from his dispatcher that Lyssy had been convicted of “DWI Second Conviction,” he possessed reliable information from a credible source that Lyssy had been convicted twice of driving while intoxicated. See Terrazas, 406 S.W.3d at 694;State v. Flores, 392 S.W.3d 229, 238 (Tex.App.-San Antonio 2012, pet. ref'd); Comperry, 375 S.W.3d at 518. We therefore overrule Lyssy's issue.

Conclusion

We affirm the judgment of the trial court. KEYES, J., dissenting.

EVELYN V. KEYES, Justice, dissenting.

I respectfully dissent. Appellant Michael Joe Lyssy pleaded nolo contendere to the misdemeanor offense of driving while intoxicated (“DWI”) pursuant to a plea bargain and the trial court sentenced him to 365 days in jail and imposed a $300 fine. The court suspended this sentence and imposed a twenty-four month term of community supervision. Lyssy appeals the trial court's denial of his motion to suppress evidence of a blood draw taken the night of his arrest on the ground that he did not consent to the warrantless blood draw upon which he was convicted and that his constitutional rights were thereby violated. I agree. I would reverse and remand for a new trial.

Background

Officer G. Rivas of the League City Police Department stopped Lyssy for failing to maintain a single lane of traffic. Officer Rivas performed a field sobriety test. He also asked Lyssy to blow into a breathalyzer, but Lyssy refused. Officer Rivas then arrested Lyssy. Officer Rivas called League City dispatch and requested a report on Lyssy from two databases, the Texas Crime Information Center and the National Crime Information Center (“TCIC/NCIC”). The resulting report showed that Lyssy had been convicted in 2004 for the offense of “driving while intoxicated 2nd.” No other DWI conviction was included in the report.

Officer Rivas testified that he understood from dispatch's oral report that Lyssy “had ... a conviction for DWI second conviction.” However, he also testified that he did not remember hearing anything about a driving while intoxicated, first offense. Based on his understanding of the TCIC/NCIC report, he requested a sample of Lyssy's blood without obtaining a warrant. Lyssy refused. Rivas transported him to a hospital, and one of its employees extracted a blood specimen.

At the subsequent hearing on Lyssy's motion to suppress the evidence resulting from the blood draw, it became clear that Lyssy had only one previous DWI conviction and that the TCIC/NCIC report had labeled his 2004 DWI conviction as “driving while intoxicated 2nd.” Officer Rivas testified that, although he relied on the TCIC/NCIC report to conclude that Lyssy had two prior DWI convictions at the time of his arrest for the current offense, he understood “[f]rom the information [he has] now” that Lyssy did not have two convictions.

Analysis

Lyssy argues that the blood evidence should have been suppressed because (1) the statute relied upon by the State to justify the blood draw, Texas Transportation Code section 724.012(b), is no longer a legitimate basis for search in light of Missouri v. McNeely, ––– U.S. ––––, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013) and (2) the conditions for implying consent to draw blood without a warrant under section 724.012(b) itself were not satisfied and, therefore, the blood draw violated his constitutional rights. SeeTex. Transp. Code Ann. § 724.012(b)(3) (West 2011).

The taking of a blood specimen is a search and seizure under the Fourth Amendment. Schmerber v. California, 384 U.S. 757, 767, 86 S.Ct. 1826, 1834, 16 L.Ed.2d 908 (1966). A warrantless search or seizure is per se unreasonable unless it falls under a recognized exception to a warrant. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967); Walter v. State, 28 S.W.3d 538, 541 (Tex.Crim.App.2000). One such exception is a search conducted pursuant to consent. See Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043–44, 36 L.Ed.2d 854 (1973). The Court of Criminal Appeals has stated that “[t]he implied consent law does just that—it implies a suspect's consent to a search in certain instances. This is important when there is no search warrant, since it is another method of conducting a constitutionally valid search.” Beeman v. State, 86 S.W.3d 613, 615 (Tex.Crim.App.2002). The court held,

The implied consent law expands on the State's search capabilities by providing a framework for drawing DWI suspects' blood in the absence of a search warrant. It gives officers an additional weapon in their investigative arsenal, enabling them to draw blood in certain limited circumstances even without a search warrant.
Id. at 616.

Both the United States Supreme Court and the Court of Criminal Appeals have recognized a two-part analysis for determining the legality of a blood draw: reviewing courts must determine (1) whether the police were justified in requiring the defendant to submit to a blood test and (2) whether the means and procedures employed in taking the blood respected the relevant Fourth Amendment standards of reasonableness. See State v. Johnston, 336 S.W.3d 649, 658 (Tex.Crim.App.2011) (citing Schmerber, 384 U.S. at 768, 86 S.Ct. at 1834).

Appellant argues that the United States Supreme Court's recent holding in Missouri v. McNeely invalidates his blood draw. I disagree. In McNeely, the Supreme Court clarified the meaning of “exigency” in the context of a warrantless blood draw, holding that the natural metabolization of alcohol in the bloodstream, without more, does not constitute exigent circumstances; rather, “exigency” must be determined case-by-case based on the totality of the circumstances. 133 S.Ct. at 1560, 1568. Nothing in that opinion invalidated Texas's implied consent statute. In fact, in Section III of McNeely, Justice Sotomayor, writing for a four-justice plurality, implicitly characterized implied consent statutes, including a specific reference to section 724.012(b), as collateral to the exigency concerns underlying the issue before the Supreme Court. Id. at 1566–67 & n. 9. Thus, I conclude that McNeely is inapplicable to the current case, which involved the application of Texas's implied consent statute, and it does not render that statute unconstitutional.

Texas's implied consent statute, Transportation Code section 724.012(b)(3)(B), provides that “[a] peace officer shall require the taking of a specimen of the person's breath or blood ... if the officer arrests the person for an offense under Chapter 49, Penal Code, involving the operation of a motor vehicle ... and the person refuses the officer's request to submit to the taking of a specimen voluntarily” if, “at the time of the arrest, the officer possesses or receives reliable information from a credible source that the person ... on two or more occasions, has been previously convicted of ... an offense under Section 49.04 [the DWI statute], 49.05, 49.06, or 49.065, Penal Code....” Tex. Transp. Code Ann. § 724.012(b)(3)(B) (emphasis added). Section 724.013 provides, “Except as provided by Section 724.012(b), a specimen may not be taken if a person refuses to submit to the taking of a specimen designated by a peace officer.” Id. § 724.013 (West 2011).

Here, Officer Rivas received information from a reliable source relating Lyssy's prior DWI history, as required by section 724.012(b)(3)(B)—but that dispatch report listed only one prior DWI conviction. The officer's explanation for his ordering the blood drawn—that he believed from the report that Lyssy actually had two previous DWI convictions—does not alter the fact that the statutory conditions for implying Lyssy's consent to the blood draw were not met. Indeed, the majority's holding—that an officer's subjective belief that an implied consent statute has been satisfied is sufficient to imply consent—vitiates both the implied consent statute and the underlying constitutional concept of implied consent to a warrantless search. Under the majority's reading of the statute, consent to a warrantless search is implied whenever an officer believes in good faith that he has complied with the law in ordering a search. Neither the implied consent statute nor the constitutional Fourth Amendment restrictions on searches and seizures would have any meaning if the beliefs of police officers were their own warrant for the validity of a search of a person or place or the seizure of a blood specimen regardless of the facts.

I would hold that the subjective beliefs of an officer do not satisfy the objective requirements of the implied consent statute. The implied consent statute required that Officer Rivas have reliable information from a credible source that Lyssy had at least two prior DWI convictions, but Lyssy had only one previous conviction—Officer Rivas's misunderstanding of the report notwithstanding. The fact that the report labeled Lyssy's single previous conviction as “driving while intoxicated 2nd” might make Officer Rivas's belief at the time he subjected Lyssy to the blood draw reasonable, but it does not alter the material facts—the report listed only one previous DWI conviction, and Lyssy, in fact, had only one prior DWI conviction. Section 724.012(b)(3)(B), by its plain language, does not imply consent when a suspect has only one previous DWI conviction. Therefore, in the absence of a search warrant or actual consent, the blood evidence here is not admissible.

I would hold that because the statutory conditions for implying Lyssy's consent to the search were not satisfied, the evidence of the warrantless blood draw should have been suppressed.

“If the appellate record in a criminal case reveals constitutional error that is subject to harmless error review, the court of appeals must reverse a judgment of conviction or punishment unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment.” Tex.R.App. P. 44.2. I cannot conclude beyond a reasonable doubt that the results of a warrantless blood test taken without consent—actual or implied—and showing a blood alcohol level that supported a conviction for DWI did not contribute to Lyssy's conviction.

I would therefore sustain Lyssy's point of error.

Conclusion

For the foregoing reasons, I would reverse the judgment of the trial court and remand for a new trial.