Holidy, Marcus Bruce

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. PD-0622-14 MARCUS BRUCE HOLIDY, Appellant v. THE STATE OF TEXAS

ON STATE’S PETITION FOR DISCRETIONARY REVIEW

FROM THE SIXTH COURT OF APPEALS

RUSK COUNTY H ERVEY, J., delivered the opinion of the unanimous Court.

OPINION

The question in this case is whether the taking of a blood specimen from Appellant pursuant to a felony DWI investigation, and as authorized by the Texas Transportation Code,1 violated the Fourth Amendment. We hold that it does.

After his arrest, Appellant filed a motion to suppress the blood evidence based on the United States Supreme Court’s holding in Missouri v. McNeely, 133 S. Ct. 1552 (2013). The trial court denied that motion, and Appellant subsequently pled guilty and

Holidy–2 was assessed a six-year term of confinement.

On appeal, Appellant reurged his argument from the trial court that the taking of his blood violated the Fourth Amendment based on McNeely. The court of appeals agreed and reversed his conviction, citing McNeely and Aviles v. State, 385 S.W.3d 110, 112 (Tex. App.—San Antonio 2012, pet. ref’d), vacated by, 134 S. Ct. 902 (2014). Holidy v. State, No. 06-13-00261-CR, 2014 WL 1722171 (Tex. Crim. App. Apr. 30, 2014) (mem. op.) (not designated for publication). The State Prosecuting Attorney filed a timely petition for review, which we granted, arguing that the court of appeals erred because the mandatory blood-draw provision does not violate the Fourth Amendment, even after McNeely.

Approximately seven months after the court of appeals issued its opinion in this case, this Court handed down an opinion in State v. Villarreal, No. PD-0306-14, 2014 WL 6734178 (Tex. Crim. App. Nov. 26, 2014), in which we resolved the same issue against the State. Although we subsequently granted rehearing in Villarreal, we later concluded that the State’s motion for rehearing was improvidently granted. Therefore, in light of our decision in Villarreal and the reasoning therein, we overrule the State’s single ground for review and affirm the judgment of the court of appeals. Villarreal, 2014 WL at *11.

Hervey, J.

Delivered: January 27, 2016 Do not publish