MEMORANDUM OPINION1

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In one issue, Appellant Rogelio Munguia appeals his conviction for driving while intoxicated. Tex. Penal Code Ann. § 49.04(a) (West Supp. 2015). We reverse the trial court’s order denying Munguia’s motion to suppress and the trial court’s judgment and remand this case to the trial court for further proceedings consistent with this opinion.

the pickup just as Fort Worth Police Officer Cody Norman arrived. No one else was observed either inside or outside of the pickup. Diaz identified the driver to Officer Norman by pointing at him.^[5]

As Officer Norman approached Munguia to ask for his driver’s license, he immediately noticed indications of intoxication. Not only did Munguia hold on to the pickup to steady himself as he exited the vehicle, he also continued to hold on as he walked toward the officer at the rear of the pickup. Officer Norman could also smell alcohol coming from Munguia and could see that Munguia’s eyes were bloodshot and watery.

Because of a language barrier, Officer Norman had difficulty communicating with Munguia.^[6] Officer Norman attempted to call a Spanish- speaking officer to the scene to help translate,7 but in the meantime one of Munguia’s neighbors came outside and assisted in translating. Officer Norman managed to administer a Horizontal Gaze Nystagmus (HGN) test and observed all six clues, indicating intoxication. However, according to the officer, the language barrier prevented him from obtaining consent from Munguia to conduct any additional tests.

After Officer Norman placed Munguia under arrest, he learned from dispatch that Munguia had two prior convictions for DWI. Officer Norman transported Munguia directly to John Peter Smith Hospital (JPS) to obtain a blood draw, where a Spanish-speaking officer, Todd Allen, read the Spanish version of the DIC-24 warnings8 to Munguia and asked him to consent to the taking of a blood sample. After Munguia refused, Officer Norman completed a THP-51 form9 and Ben Smit, a JPS nurse, obtained a blood specimen from Munguia without a warrant or his consent.

Officer Norman testified that his only basis for performing the mandatory blood draw was that Munguia had been convicted of DWI twice before. Munguia’s blood test showed a blood alcohol concentration of 0.18.10

Munguia moved to suppress the evidence of the blood test on the basis of Missouri v. McNeely, 133 S.Ct. 1552 (2013). The State did not present any evidence or argument that exigent circumstances justified the warrantless blood draw, but relied entirely upon section 724.012 of the transportation code.^[11] Tex. Transp. Code Ann. § 724.012. The trial court denied the motion to suppress. After the jury convicted Munguia of DWI, he was sentenced to 10 years’ confinement.

II. Motion to Suppress

In his only issue, Munguia argues his Fourth Amendment rights were violated when Officer Norman forced him to provide a blood sample without first obtaining a warrant.

A. Standard of Review

We review a trial court’s ruling on a motion to suppress evidence under a bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We give almost total deference to a trial court’s rulings on questions of historical fact and application-of-law-to-fact questions that turn on an evaluation of credibility and demeanor, but we review de novo application-of-law-to-fact questions that do not turn on credibility and demeanor. Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005); Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002).

B. Analysis

The court of criminal appeals has held that warrantless blood or breath samples taken without consent solely in reliance on transportation code provisions such as section 724.012 violate the warrant requirement of the Fourth Amendment. State v. Villarreal, No. PD-0306-14, 2014 WL 6734178, at[*20] (Tex. Crim. App. Nov. 26, 2014).12 Officer Norman’s reliance upon section 724.012 for the warrantless, nonconsensual blood draw and his good-faith belief that the statute authorized the warrantless search do not overcome the exclusionary rule. Lewis v. State, No. 02-13-00416-CR, 2015 WL 1119966, at *2 (Tex. App.—Fort Worth Mar. ^[12], 2015, pet. filed) (mem. op., not designated for publication) (citing Burks v. State, 454 S.W.3d 705, 709 (Tex. App.—Fort Worth 2015, no pet.)). Consequently, the trial court, ruling without the benefit of Villarreal—which was issued almost three months after the suppression hearing—erred in its application of the law to the facts of this case and, thus, in denying Munguia’s motion to suppress. See id.

III. Harm Analysis

Having found error, we must conduct a harm analysis to determine whether the error calls for reversal of the judgment. Tex. R. App. P. 44.2. Because the error is constitutional, we apply rule 44.2(a) and reverse unless we determine beyond a reasonable doubt that the error did not contribute to appellant’s conviction or punishment. Tex. R. App. P. 44.2(a). The question is whether the trial court’s erroneous denial of Munguia’s motion to suppress was harmless beyond a reasonable doubt. See Williams v. State, 958 S.W.2d 186, 194 (Tex. Crim. App. 1997). In applying the “harmless error” test, our primary question is whether there is a “reasonable possibility” that the error might have contributed to the conviction. Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998) (op. on reh’g), cert. denied, 526 U.S. 1070 (1999).

We are directed that our harmless error analysis should not focus on the propriety of the outcome of the trial. Instead, we must calculate, as much as possible, the probable impact of the evidence on the jury in light of the existence of other evidence. Wesbrook v. State, 29 S.W.3d 103, 119 (Tex. Crim. App. 2000), cert. denied, 532 U.S. 944 (2001). We “should take into account any and every circumstance apparent in the record that logically informs an appellate determination whether ‘beyond a reasonable doubt [that particular] error did not contribute to the conviction or punishment,’” and if applicable, we may consider the nature of the error, the extent that it was emphasized by the State, its probable collateral implications, and the weight a juror would probably place on the error. Snowden v. State, 353 S.W.3d 815, 822 (Tex. Crim. App. 2011) (quoting Tex. R. App. P. 44.2(a)). This requires us to evaluate the entire record in a neutral, impartial, and even-handed manner and not “in the light most favorable to the prosecution.” Harris v. State, 790 S.W.2d 568, 586 (Tex. Crim. App. 1989), disagreed with in part on other grounds by Snowden, 353 S.W.3d at 821–22.

The jury heard the testimony of Officer Norman, Smit, and Jason Allison, a forensic scientist who tested Munguia’s blood, about the blood draw and the test results. The jury was also presented with evidence that Munguia’s blood alcohol content on the night of August 14, 2011, was .18, more than twice the legal limit of .08. See Tex. Penal Code Ann. § 49.01(2)(B). The State emphasized this in its closing argument, arguing, “And you know . . . , despite cross-examination of the defense, you can’t poke holes in that, this defendant was more than twice the legal limit at the time the blood was drawn.” The State argued further, “This man was intoxicated based on this blood alcohol content. It’s that plain and simple.” Finally, the State argued:

And you take all of that together, and then you have Mr. Allison get on the stand to tell you that the blood out of that man’s body was a 0.18. And, in fact, it was more like 0.185. But a .18. Over two times the legal limit. That corroborates the fact that he was driving in the first place.

While the jury also heard the testimony of Jesus Diaz, identifying Munguia and describing his erratic driving behavior, and evidence of a strong odor of alcohol, red, bloodshot eyes, unsteady balance, and the presence of all six clues of the HGN test, we cannot conclude beyond a reasonable doubt that the blood- alcohol evidence did not contribute to the jury’s verdict. Given the emphasis placed on those results throughout the trial, we hold that it is likely that the jury gave substantial weight to it.

Having carefully reviewed the record and performed the required harm analysis under rule 44.2(a), because we are unable to determine beyond a reasonable doubt that the error did not contribute to appellant’s conviction or punishment, see Williams, 958 S.W.2d at 195, we sustain Munguia’s sole issue. See Tex. R. App. P. 47.1.

IV. Conclusion

Because we hold that the trial court erred by denying Munguia’s motion to suppress and that there is a reasonable possibility that this constitutional error contributed to Munguia’s conviction or punishment, we reverse the trial court’s order denying Munguia’s motion to suppress and the trial court’s judgment and remand this case to the trial court for further proceedings consistent with this opinion. See Tex. R. App. P. 43.2(d).

/s/ Bonnie Sudderth BONNIE SUDDERTH JUSTICE PANEL: GARDNER, MEIER, and SUDDERTH, JJ.

DO NOT PUBLISH

Tex. R. App. P. 47.2(b) DELIVERED: February 4, 2016