The constitutional claim of the legality of defendant’s blood draw was argued, but the trial judge never ruled, so the claim wasn’t preserved for appeal. Court of Appeals reversed. Smith v. State, 2016 Tex. Crim. App. LEXIS 89 (June 8, 2016) (dissent):
The trial judge then stated that defense counsel had “raised an interesting constitutional question about the fact that the blood draw was taken without a warrant.” The trial judge further stated, “I’m not sure if this has been litigated or not, but I’m — I’m not certain that the legislature can — can do this or not. I mean, the Fourth Amendment is still the law of the land and regardless of what the State legislatures or even Congress does, but you’re going to have to do me some research, [defense counsel], and show me.” Defense counsel responded that he was sorry that he did not do any research the night before. The trial court replied, “No, I mean, we’re not done with the trial, and I’ll consider it certainly.” Defense counsel then stated that the “Texas Court of Criminal Appeals looks like they kind of said it was okay, but they didn’t rule directly it looked like on the constitutional issues. That’s what my research indicated.” The trial judge responded, “Well, you’re going to have to brief me on the issue if you want me to consider it. I need to know what the Courts have said and how far it’s gone up.”
Nothing in the record suggests that the constitutional issue was ever mentioned at the trial level again. The trial judge sentenced appellant to twenty-five years in prison, the minimum punishment due to the existence of prior felony convictions used for enhancement purposes.