McGuire v. State (493 S.W.3d 177, 2016)

OPINION

Harvey Brown, Justice

This is a fatality DWI case. The driver, Sean McGuire, refused consent when a police officer asked him to submit his blood for analysis of its alcohol concentration. Despite his lack of consent, and without a warrant, the police officer obtained a blood sample at a local hospital. The blood draw occurred approximately 90 minutes after the collision and revealed an alcohol concentration that was twice the legal limit. McGuire had two prior out-of-state DWIs, which served to enhance this third DWI to a third-degree felony.

In two separate indictments, McGuire was indicted for (1) felony murder, which is a first-degree felony under Section 19.03(b)(3) of the Texas Penal Code, (2) intoxication manslaughter, which is a second-degree felony under Section 49.08, and (3) failure to stop and render aid,, which in this case is a second-degree felony. The jury convicted McGuire of felony murder. It also convicted him of failure to stop and render aid.

After trial, the State asserted that the intoxication manslaughter charge — a charge that was submitted to the jury but on which the. jury was not allowed to convict if it returned a guilty verdict for murder — remained pending. McGuire sought habeas relief, arguing that further prosecution on the intoxication manslaughter charge violated double jeopardy because a jury already convicted him of murder. The trial court granted relief and dismissed the pending intoxication-manslaughter charge.

McGuire appeals his two convictions. The State appeals the habeas order.. This opinion resolves all three appeals. First, we conclude that the blood, draw was unconstitutional and reverse the murder conviction. In doing so, we address only those issues raised in the appeal of the murder conviction that we view as necessary for the case to be remanded for further proceedings on that charge. These include (1) whether the two out-of-state DWIs may enhance this DWI offense to a felony and (2) the venue motion. The other appellate issues that are mooted by our holding are not addressed. Tex. R. App. P. 47.1 (requiring opinion to address issues necessary to final disposition). Second, we affirm the conviction for failure to stop and render aid. Third, given the disposition of the murder appeal, we conclude that the basis for granting habeas relief is now moot and vacate the trial court’s order granting habeas relief.

Background

After attending a benefit at a bar for more than five hours, McGuire was driving home shortly after midnight when he struck a motorcycle on a rural road. Both vehicles were traveling in the same direction- when McGuire overcame the' motorcycle and his truck’s .front bumper became entangled with the motorcycle’s back fender. The entangled truck and motorcycle traveled together for some distance. The motorcycle eventually slipped down and became lodged under McGuire’s truck. McGuire’s truck then dragged the motorcycle to the next intersection, with sparks coming from both vehicles, where the motorcycle finally broke loose and slid to a stop. At some point during the process, the motorcycle driver, David Stidman, was knocked off his motorcycle. " Stidman died from his injuries at the scene.

The parties .contested the visibility of Stidman’s motorcycle. There was evidence that it was a dark color and had two small backlights instead of the more common large, central taillight. The evidence was inconsistent whether those two small lights were functioning. Stidman’s' father testified that the lights were working that evening. However, McGuire stated repeatedly on the night of the collision that he did not see any lights before impact, and his expert testified that he was denied access to determine whether the lights were functioning properly.

McGuire did not testify at trial; however, various witnesses testified to statements he made the night of the collision while police were investigating. .McGuire told these witnesses that he never saw the motorcycle. He heard a noise on impact, thought he may have hit “something or someone.” He then turned his vehicle back to the direction from which he had been driving to determine what had occurred, suggesting that he was unaware that he had collided with a motorcycle and dragged it down the road. After he turned his vehicle around, he saw nothing along the shoulder of the road, but he did not stop to investigate. Instead, he drove to a nearby gas station and .called his mother and two police acquaintances, who called law enforcement to begin its investigation.

Meanwhile, two other drivers saw Stid-man’s body lying hear the road a short distance from the gas station. One of the drivers called for emergency assistance. Emergency personnel arrived within minutes of the collision, but Stidman was already dead.

McGuire remained at the gas station until police officers arrived. They interviewed him briefly and then drove him back to where Stidman’s body had been found. While some police officers reported that McGuire showed no signs of intoxication, others stated that he had glassy eyes, smelled of -alcohol, and was unsteady on his feet.

Based on indications that McGuire was driving while intoxicated and because the accident resulted in a death, one of the officers took McGuire to a local hospital to have his blood drawn to determine its alcohol concentration. McGuire refused consent to. the blood draw. The police obtained a blood sample without McGuire’s consent and without taking any steps to obtain a warrant. A police officer testified that he did so based on a Transportation Code provision that states that an officer “shall require the taking of a specimen” under certain circumstances, including when an officer reasonably believes a driver was operating a vehicle while intoxicated and a person died as a result of -an accident involving that driver. See Tex. Transp. Code ÁNN. § 724.012(b) (West 2011). McGuire’s blood was drawn less than 90 minutes after the accident. The blood specimen had an alcohol concentration of 0.16 — twice the legal limit.

In one indictment, McGuire faced charges of murder (because he had two previous out-of-state DWIs, which were used to enhance this DWI offense to a felony, thereby enabling the State to prosecute for felony murder) and intoxication manslaughter. Through a second indictment, McGuire also was charged with failure to stop and render aid. All charges were presented to one jury in a single trial.

McGuire sought pretrial habeas relief in 2012, arguing that the murder indictment failed to allege an offense because the two “act[s] clearly dangerous to human life,” as described in the indictment, were not acts at all, but, instead, simple omissions: failing to (1) maintain an adequate lookout for traffic and road conditions and (2) take proper evasive actions. See McGuire v. State, No. 01-11-01089-CR, 2012 WL 344952, at *1 (Tex.App.—Houston [1st Dist.] Feb. 2, 2012, pet. refd) (mem. op., not designated for publication). This court held , that the trial court did not abuse its discretion by denying habeas relief because failure to keep a proper lookout can occur through an act. Id. at *2. The case proceeded on all charges.

Before trial, McGuire filed a motion to transfer venue. The trial court held a hearing and denied the motion. The trial judge stated that “if we can’t get a jury then I’ll revisit this motion.” On the first day of trial, McGuire reurged his motion based on an article published in the local newspaper the day before trial that quoted the prosecutor regarding potential evidence in the case. The tidal court again denied the motion, saying that it would revisit it after voir dire if they could not get a fair jury. At the conclusion of voir dire, various veniremembers were struck for cause or by peremptory strikes. Twelve jurors plus one alternate were seated without McGuire reurging his venue motion.

At trial, the three charges, as well as various lesser-included offenses, were submitted to the jury. Before the charge was read to the jury, McGuire successfully argued that the jury should be instructed that it could convict on murder, convict on intoxication manslaughter, or acquit on both, but that it could not convict on both of those charges. That limitation was included in the jury charge. The jury returned a verdict of guilty of murder. The jury assessed punishment at 18 years’ confinement and imposed a fine. The jury also convicted on failure to stop and render aid. The jury assessed punishment at 5 years’ confinement and imposed another fine.

The day after the trial court signed the judgment of conviction, the Fort Bend County District Attorney’s office- stated that the intoxication manslaughter charge “will remain pending until the disposition of the appeal” of the murder charge. According to McGuire, at that point, he “was brought before a magistrate and formally charged with intoxication manslaughter (even though he had already been tried for that offense) and a[ ] bond was set.”

McGuire then filed an application for a writ of habeas corpus, arguing that the State violated his right against double jeopardy. He argued that he “has already been convicted of murder for causing the death of David Stidman and is currently charged with Intoxication Manslaughter for causing the death of David Stidman. This is an unconstitutional double jeopardy violation.” Following a hearing, the trial court granted McGuire’s application for habeas corpus and dismissed the intoxication manslaughter charge. The State appeals that order.

The Felony-Murder Conviction

In his appeal of the felony-murder conviction, McGuire raises eight issues, including that the warrantless, nonconsensual blood draw violated his constitutional rights. We agree. As a result, four other issues raised in his appeal are moot: whether the trial court abused its discretion by admitting evidence of the two prior out-of-state DWIs absent adequate proof that McGuire was the defendant in those eases, admitting evidence without proof of chain of custody, and denying his challenge for cause on a venireperson, and whether there was legally sufficient evidence on which to convict him of felony murder. We do not reach those four issues. See Tex. R. App. P. 47.1 (opinion must dispose of issues necessary to disposition of appeal).

We do reach other issues that will be necessary in a new trial. These include whether the felony-murder indictment fails to state an offense and is fundamentally defective, whether the trial court abused its discretion by denying McGuire’s venue motion, and whether an earlier, out-of-state probated sentence constitutes a valid final conviction for enhancement purposes to make felony murder an available charge.

We begin with McGuire’s challenge to the indictment because, if he prevails on that challenge, he would be entitled to judgment in his favor on that charge. See Bradleys’ Elec., Inc. v. Cigna Lloyds Ins. Co., 995 S.W.2d 675, 677 (Tex.1999) (explaining that generally, when party presents multiple grounds for reversal of judgment on appeal, appellate courts should first address issues that would require rendition); see also Tex. R. App, P. 43.3.

A. Challenge to the indictment

McGuire contends that the indictment for felony murder is fundamentally defective because it fails to allege an offense. Specifically, he argues that felony murder requires that the defendant engage in an “act,” yet the indictment against him alleged only omissions, not acts. McGuire contends that this defect requires reversal.

This is not the first time McGuire has raised this issue with this court. As he readily admits in his brief, he argued in a 2012 habeas proceeding “that the indictment was invalid because it failed to state an offense ... [in that] an ‘omission’ such as a failure to take action, is not an .act_” McGuire quotes extensively from the memorandum opinion, in which this court rejected his contention for two reasons. First, “the law in Texas does impose a duty on'drivers to maintain an adequate lookout and take proper evasive actions when necessary ... and the failure to abide by these and other traffic laws is a voluntary act or omission upon which a criminal offense may be based.” McGuire, 2012 WL 344952, at *2. Second, “the indictment alleges the-affirmative voluntary actions of consuming alcohol and driving on a public street.” Id. at *3. McGuire argues that the issue was wrongly decided.

1. Standard of review

“An issue raised by an indictment may present a question of law.” Hollin v. State, 227 S.W.3d 117, 120 (Tex.App.—Houston [1st Dist.] 2006, pet.; ref d).. “The question is subject to de novo review when its resolution does not require an evaluation of the credibility and demeanor of a witness.” Bearnth v. State, 361 S.W.3d 135, 141 (Tex.App.—Houston [1st Dist.] 2011, pet. ref d).

2. Felony-murder indictment

Felony murder essentially is “unintentional” murder committed in the course of a felony. Lomax v. State, 233 S.W.3d 302, 305, 306 (Tex.Crim.App.2007); Rodriguez v. State, 454 S.W.3d 503, 507 (Tex.Crim.App.2014). The Texas Penal Code provides that felony murder occurs when a person

commits or attempts to commit a felony, other than manslaughter, and in the course of and in furtherance of the commission or attempt, or in immediate flight from the commission or attempt, he commits or attempts to commit .an act clearly dangerous to human life that causes the death of an individual.

Tex. Penal Code Ann. § 19.02(b)(3). There is no requirement. of a culpable mental state for “the act of murder.” Lomax, 233 S.W.3d at 306.

Under this statute, the State must prove five things, the second of which McGuire challenges: “(1) an ■ underlying felony, (2) an act clearly dangerous to human life, (3) the death of an individual, (4) causation (the dangerous act causes the death), and (5) &■ connection between the underlying felony and the dangerous act (‘in the course of and in furtherance of.... or in immediate flight from’).” Contreras v. State, 312 S.W.3d 566, 583-84 (Tex.Crim.App.2010). The “act clearly dangerous to human life” must be the cause of the victim’s death. Rodriguez, 454 S.W.3d at 507. Whether the act is clearly dangerous to human life is' measured under an objective standard, not the subjective belief of the actor. Lugo-Lugo v. State, 650 S.W.2d 72, 81 (Tex.Crim.App.1983).

“An indictment for felony murder is not required to allege the constituent elements of the underlying felony.” Tata v. State, 446 S.W.3d 456, 463 (Tex.App.—Houston [1st Dist.] 2014, pet. ref d) (citations omitted). “The proper test to determine if a charging instrument alleges ‘an offense’ is whether the allegations in it are clear enough that one can identify the offense alleged.” Teal v. State, 230 S.W.3d 172, 180 (Tex.Crim.App.2007). Factual specificity is not required: “a written instrument is an indictment ... if it accuses someone of a crime with enough clarity and specificity to identify the penal statute under which the State intends to prosecute, even if the instrument is otherwise defective.” Duron v. State, 956 S.W.2d 547, 550-51 (Tex.Crim.App.1997). Stated another way, an indictment that tracks the language of the penal statute generally will be legally sufficient without the State alleging facts that are merely evidentiary in nature. See Moreno v. State, 721 S.W.2d 295, 300 (Tex.Crim.App.1986).

, 3. The McGuire indictment states an offense

The felony-murder indictment alleged at least two acts “clearly dangerous to human life”: McGuire failed to maintain an adequate lookout and failed to take proper evasive actions. McGuire argues that these áre omissions, not acts. But both “omissions” can also involve acts. “[W]hile an omission is, by definition, a failure to act, that does not mean that a defendant charged with an omission may not also engage in some type of act during the course of that omission. There can be proof of an additional dangerous act beyond the felonious act (or omission) of the underlying felony.” Rodriguez v. State, 408 S.W.3d 628, 637 (Tex.App.—Austin 2013) (Jones, C.J., dissenting),, rev’d, 454 S.W.3d 503 (Tex.Crim.App.2014).

• With regard to failure to maintain an adequate lookout, this conduct can occur through complete inaction (i.e., when a driver observes nothing and makes no physical movements as a result, as McGuire argues occurred here) or through an affirmative action that might better be described as a distraction (i.e.,- when a driver diverts his eyes away from the road to an object in the vehicle that has distracted him). See Montgomery v. State, 369 S.W.3d 188, 195 (Tex.Crim.App.2012) (driver alleged to have “failed to maintain proper lookout, at least partly as a result of the distraction created by her use of the cell phone”); Cook v. State, 328 S.W.3d 95, 102 (Tex.App.—Fort Worth 2010, pet, refd) (driver “was not maintaining a proper lookout when approaching this curve because she was distracted by her CD player”); see also Webb v. State, No. 01-02-01039-CR, 2003 WL 22724623, at *3 (Tex.App.—Houston [1st Dist.] Nov. 20, 2003, pet. ref'd) (mem. op., not designated for publication) (driver alleged to have failed to keep proper lookout, in part, “because he was momentarily distracted by [passenger] opening car door to vomit”).

Likewise, the-conduct of failing to take evasive action can occur through complete inaction (i,e., driving straight without making any physical movements and without witnessing any reason to take evasive action) or through an affirmative, voluntary action. An example of the latter would be making the voluntary decision to purposefully drive over debris in the road, having concluded that making an evasive maneuver might cause more severe damage or injury.

Our view that an omission can also include, in some circumstances, an act is not contradicted by the Texas Court of Criminal Appeals decision in Rodriguez v. State, 454 S.W.3d 503 (Tex.Crim.App.2014). That case involved a felony-murder charge against a mothér whose infant died of malnutrition and dehydration. Id. at 505. The underlying felony was injury to a child. Id. The acts alleged were (1) withholding sufficient nutrition and fluid to sustain life and (2) starving the child. Id.

The Court of-Criminal Appeals first noted that, “while an injury to a child offense can be based on an act or omission, the felony murder statute makes clear that an ‘act clearly dangerous to human life’ must be the cause of the death of the victim.” Id. at 507. An “act”, is statutorily defined as “a bodily .movement, whether voluntary or involuntary....”. Tex. Penal Code Ann. § 1..07(a)(1). Conversely, an “omission” is defined as a “failure to act.” Id. § 1.07(a)(34). According to the Rodriguez Court, both items listed , in the mother’s indictment involved “not performing some act that was required of her” and fell “squarely within the definition of an omission,” not an “act.” Rodriguez, 454 S.W.3d at 507.

Next, the Rodriguez Court rejected the argument that withholding food — an omission — includes within it the clearly dangerous act of “giving her son some food, but not enough for him to survive.” Id. at 508. Focusing., on the “clearly dangerous” requirement, the Court held that the act, of giving food, however small, would serve to prolong life, not be dangerous to it. Id. Therefore, the aspect of her behavior that could be described as an act (i.e,, giving food) was the opposite of dangerous to the infant’s life. .-It was only the omission aspect (i.e., ■ not giving enough food) that was dangerous and caused his death.

Then, focusing on what constitutes an “act,” the Rodriguez Court cautioned against conceptualizing an omission as an incomplete attempt at an act because doing so “renders any distinction between the -two words meaningless,” and any omission would then be susceptible to being phrased as an act. Id. Later, in Hudson v. State, 449 S.W.3d 495 (Tex.Crim.App.2014), the Court of Criminal Appeals described its earlier Rodriguez holding as follows: “[T]he cause of death that gives rise to a felony murder conviction cannot be based solely on an omission.” Id. at 498 n. 7. There must be an act that is clearly dangerous to human life, and that act must cause the death. See Tex. Penal Code Ann. § 19.02(b)(3); Rodriguez, 454 S.W.3d at 508.

Unlike the omissions in the Rodriguez indictment, the omissions in the McGuire indictment' could be regarded, in some circumstances, as voluntary acts. For example, if the facts supported the statement, the indictment could have alleged that McGuire failed to maintain a proper lookout because he was texting or looking at the floorboard for something he had dropped. These clearly would be acts. We conclude that the McGuire indictment adequately tracked the language of the penal statute to put forth a felony-murder charge based on dangerous inattentiveness in the course of a felony DWI.

There is a second reason that we reject McGuire’s contention that the indictment was defective: McGuire’s voluntary act of driving after consuming alcohol could be, depending on the evidence, an act clearly dangerous to human life. See McGuire, 2012 WL 344952, at *3. The Court of Criminal Appeals stated in Johnson v. State that the felony, itself, may satisfy the requirement of an act clearly dangerous to human life. 4 S.W.3d 254, 255-58 (Tex.Crim.App.1999) (holding that same act may constitute both underlying felony and act clearly dangerous to human life, except manslaughter); see Lawson v. State, 64 S.W.3d 396, 400-01 (Tex.Crim.App.2001) (Cochran, J., concurring) (same).

Johnson was subsequently summarized by the Court of Criminal Appeals in Lo-max as holding that a “felony-murder conviction can be based upon the underlying felony without proof of any additional dangerous act beyond that covered by the underlying felony.” 233 S.W.3d at 303 n. 4; see id. at 310 n. 29. The victim’s death in Lomax occurred in the course of the defendant’s “commission of an inherently dangerous felony DWI.” Id. at 303 n. 4. The Court explained that felony-murder does not require a separate affirmative act by the driver such as speeding, tailgating, or weaving through traffic because such an argument “would resurrect the judicially created merger doctrine” Id. at 310 n.29. The Court also rejected the defendant’s contention that a DWI homicide must “be prosecuted exclusively as intoxication manslaughter” because the plain language of the statute “does not exclude felony DWI as an underlying felony for a felony-murder prosecution.” Id. at 309-11.

Therefore, we conclude that the indictment is not fundamentally defective for failing to state an offense. We overrule McGuire’s first issue.

B. Challenge to allowing probated, out-of-state DWI conviction to enhance offense

The State presented evidence that McGuire had two prior DWIs in Iowa approximately seven years before this offense. The first was in January 2003; the second was in May 2003. McGuire did not challenge the admissibility of this evidence. Instead, he argues that the second of the two DWIs does not qualify as an underlying DWI conviction for third-offense felony DWI purposes because he received a probated sentence as a result of that charge. According to McGuire, without the second DWI offense counting against him, there was no legal basis for categorizing this offense as his third DWI — which was necessary to enhance the charge to a felony DWI under Section 49.09(b)(2) of the Penal Code and' to charge and convict him of felony murder. Absent this conviction, should this case be retried, McGuire would not be subject to conviction for felony murder but could, at most, be convicted of intoxication manslaughter.

1. Standard of review

Whether the trial court misapplied Section 49.09(b)(2) of the Penal Code is a matter of statutory construction, which is reviewed de novo. See Tapps v. State, 294 S.W.3d 175, 177 (Tex.Crim.App.2009).

2. Texas Penal Code section 49.09

A DWI offense is a third-degree felony “if it is shown on the trial of the offense that the person has previously been convicted: ... (2) two -times of any other offense relating to the-operating of a motor vehicle while intoxicated -Tex. Penal Code Ann. § 49.09(b) (italics added). The italicized phrase is a defined term in the statute and includes “an offense under the laws of another state that prohibit the operation of a motor vehicle while intoxicated.” Id. § 49.09(c)(1)(F). The statute also provides that a conviction under Texas Penal Code section 49.04 (driving while intoxicated) is a “final conviction” “whether the sentence for conviction is imposed or probated.” Id. § 49.09(d). Thus, a DWI offense is a felony if the driver has beén convicted two times of operating a vehicle while intoxicated, whether the convictions occurred in Texas or in another state.

3. Iowa Code provisions

Iowa Code section 321J.2 provides that a person commits the offense of “operating while intoxicated” if he operates a motor vehicle in the state while under the influence of an alcoholic beverage or while having a blood-alcohol concentration of .08 or more. Iowa Code Ann. § 321J.2(1) (2013). Section 907.3 permits the Iowa trial court, upon a plea of guilty, to defer judgment and place the defendant on probation. Id. § 907.3(1); see id. § 321J.2(3)(b)(i). “Upon fulfillment of the conditions of probation ... ■ the defendant shall be discharged without entry of judgment.” Id. § 907.3(l)(c). -

Section 321J.2 addresses the effect of a successfully probated sentence. It provides that, “[i]n determining if a violation charged is a second or subsequent offense for purposes of criminal sentencing ... under this chapter .".. [deferred judgments entered pursuant to section 907.3 for violations of this section shall be counted as previous offenses.” Id: § 321J.2(8)(b). This provision is similar to Section 49.09(d) of the Texas Penal Code quoted above.

4.Whether the Iowa probated sentence is a final conviction for Section 49.09 purposes

McGuire argues that the probated sentence was not a final conviction because Section 49.09(b) expressly states that the defendant must be “convicted” and, to the extent Section 49.09(d) allows probation to qualify as a conviction, that provision is limited to Texas offenses.

The State responds that the Iowa offense qualifies as a conviction because, under Iowa Code section 321J.2(8)(b), the State of Iowa treats it as a conviction. The State also cites cases interpreting Sections 12.41 and 12.42 of the Texas Penal ■Code, which provide a method to classify out-of-state offenses and dictate how various levels of offenses will enhance punishment for habitual offenders.

The Court of Criminal Appeals has explained that the Texas felony-DWI law found in Section 49.09 allows “prior intoxication-related convictions [to] serve the purpose of enhancing the offense” being charged while Section 12.42 permits prior convictions to “serve the purpose of enhancing [the] punishment” for that offense. Gibson v. State, 995 S.W.2d 693, 696 (Tex.Crim.App.1999) (emphasis added). The two concepts are “distinguishable,” and the limitations found in Section 12.42 do not apply to offense enhancement under Section 49.09. See id. Therefore, the cases interpreting Sections 12.41 and 12.42 as they relate to punishment enhancement do not address the question of offense enhancement. Instead, the Texas and Iowa provisions that directly address offense enhancement apply.

The Texas statute states that two prior DWI convictions will make the third DWI a felony. Tex. Penal Code Ann. § 49.09(b). It further provides that. out-of-state offenses may count as one or more of the underlying offenses. Id. § 40.09(c)(1)(F). The Iowa statute states that an intoxication offense is treated as a conviction even when the defendant’s sentence is probated. Iowa Code Ann. § 321J.2(8)(b). Texas law reaches the same result, allowing probated sentences to qualify as convictions. Tex, Penal Code Ann. § 49.09(d). Accordingly, whether McGuire’s second DWI is analyzed under Texas or Iowa law, the probated sentence qualifies as a conviction. We hold that McGuire’s second out-of-state, conviction may enhance the DWI charged in this prosecution to a felony DWI under Section 49.09(b)(2).

We overrule McGuire’s sixth issue.

C. Warrantless blood draw

" McGuire next argues that the trial court erred by denying his motion to suppress the results of a blood draw taken to determine his blood-alcohol level shortly after the automobile accident because the war-rantless, nonconsensual blood draw violated-his Fourth Amendment rights as recognized in Missouri v. McNeely, — U.S. -, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013). Because the drawing of a person’s blood is considered a search under the ■Fourth Amendment, McGuire argues that a warrant was required once he refused consent. See Schmerber v. California, 384 U.S. 757, 769-70, 86 S.Ct. 1826, 1835, 16 L.Ed.2d 908 (1966) (blood draw is search under Fourth Amendment). He further argues that the State did not satisfy its burden to show any exigent circumstances to bring the nonconsensual search within a recognized exception to the warrant requirement. " See Amador v. State, 221 S.W.3d 666, 672-73 (Tex.Crim.App.2007) (burden is on State to prove exigent circumstances to excuse warrant requirement).

The State argues-that the warrantless, nonconsensual blood draw was constitutional and that, even if were unconstitutional, the trial court did not commit harmful error by denying McGuire’s motion to suppress.

1. Standard of review

We review a ruling on a motion to suppress evidence under the abuse-of-discretion standard. Shepherd v. State, 273 S.W.3d 681, 684 (Tex.Crim.App.2008). We give “almost total deference to a trial court’s express or implied determination of historical facts,” but we “review de novo the court’s application of the law of search and seizure to those facts.” Id.

2. Fourth Amendment requirements

The Fourth Amendment to the United States Constitution provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no . Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. Const, amend, IV. While the text of the Fourth Amendment does not expressly require a search warrant, its logical inference is “that a warrant must generally be secured.” Kentucky v. King, 563 U.S. 452, 459, 131 S.Ct. 1849, 1856, 179 L.Ed.2d 865 (2011).

There are recognized exceptions to the warrant requirement. See McNeely, 133 S.Ct. at 1559. One such exception is for exigent circumstances, meaning that law enforcement has an urgent need to conduct a search without adequate time to secure a warrant. ⅞ Exigent circumstances may exist, for example, when law enforcement is “providing aid or assistance to persons whom law enforcement reasonably believes are in need of assistance,” “protecting police officers from persons whom they reasonably believe to be present, armed, and dangerous,” and “preventing the destruction of evidence or contraband.” Gutierrez v. State, 221 S.W.3d 680, 685 (Tex.Crim.App.2007).

When the State asserts that exigent circumstances exist, we look to the totality of the circumstances to determine whether law enforcement faced an emergency that justified acting without a warrant, with each case determined “on its own facfs and circumstances.” McNeely, 133 S.Ct. at 1559 (quoting Go-Bart Importing Co. v. United States, 282 U.S. 344, 357, 51 S.Ct. 153, 75 L.Ed. 374 (1931)); see Schmerber v. California, 384 U.S. 757, 770, 86 S.Ct. 1826, 1835-36, 16 L.Ed.2d 908 (1966) (applying totality-of-the-circumstarices approach and upholding warrantless search because officer “might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a. warrant, under the circumstances, threatened the destruction of evi.dence” (internal quotation and citation omitted)).’ ■ The burden is on the State to prove that the warrantless search was reasonable under the totality of the circumstances. See Amador, 221 S.W.3d at 672-73. ■

Two years ago, in McNeely, the United States Supreme Court held that, the exigency exception for preventing the destruction of evidence does not create a “per se” rule excusing an officer from obtaining a warrant in the context of a suspected drunk driver whose alcohol content is steadily diminishing through the natural dissipation of alcohol. 133 S.Ct. at 1563, 1568. Instead, whether a warrant is required for a nonconsensual blood draw of a DWI suspect must be decided using the same totaiity-of-the-circumstances test we use for exigency exceptions in other circumstances. Id. at 1568.

We.-must address the effect of the McNeely opinion- on McGuire’s nonconsen-sual blood.draw,-specifically in light of the Texas implied-consent statute — Texas Transportation Code section 724.011 — and the subsequent Court of Criminal Appeals decision of State v. Villarreal.

3. The Texas implied-consent statute

A suspect may freely and voluntarily consent tp a warrantless search. Schneckloth v. Bustamonte, 412 U.S. 218, 227-28, 93 S.Ct. 2041, 2047-48, 36 L.Ed.2d 854 (1973); Villarreal, 475 S.W.3d at 799. Transportation Code section 724.011 is an implied-consent statute. Tex. TRAnsp. Code Ann. § 724.011(a) (West 2011). Under its terms, a driver.is “deemed to have consented .,. to the taking of one or more specimens of the person’s bréath or blood for analysis to determine the alcohol concentration”- if the “person is arrested for an offense arising out of acts alleged to have been committed while the person was operating a motor vehicle ... while intoxicated.” Id. This implied consent is understood to be in exchange' for the' benefit and privilege of using the Texas roadways. See Villarreal, 475 S.W.3d at 790 (noting that State, in that case, had “suggested that a defendant, by driving on Texas roadways, which is a privilege and not a right, has impliedly consented to have his blood drawn under the limited situations described in the mandatory-blood-draw provision.... ”).

The statute grants an exception to the implied-consent rule in Section 724.013, which provides that a person may “refuse to submit to the taking of a specimen,” effectively withdrawing the implied consent. Tex. Teansp. Gode' Ann. § 724.013 (West 2011). But, under the statute’s terms, not everyone is allowed to withdraw their consent. Id. (making refusal provision subject to Section 724.012(b)).

Section 724.012(b) outlines the situations in which a person cannot withdraw consent. It mandates that a peace officer “shall require the taking of a specimen” of a person arrested for driving while intoxicated even if the person “refuses the officer’s request to submit to the taking of a specimen voluntarily” if, among other reasons, the officer reasonably believes that, as a direct result of the accident, a person has died (Section 724.012(b)(1)(A)) or, at the time of the arrest, the officer has reliable information from a credible person that the person has twice-before been convicted of a DWI ■ offense (Section 724.012(b)(3)(B)).

Section 724.012(b) has been the subject of numerous constitutional challenges. See, e.g., Villarreal, 475 S.W.3d 784; State v. Tercero, 467 S.W.3d 1, 4 (Tex.App.—Houston [1st Dist.] 2015, pet. ref'd); Douds v. State, 434 S.W.3d 842 (Tex.App.—Houston [14th Dist.], 2014), overruled on other grounds, 472 S.W.3d 670 (Tex.Crim.App.2015). While the Texas Court of Criminal Appeals has not held the statute unconstitutional, it has declared that the statute does not provide effective consent to a warrantless search if a suspect has expressly refused or revoked consent to the search. Villarreal, 475 S.W.3d at 800, 804. When a suspect refuses á blood draw, the Fourth Amendment requires either a warrant or an applicable exception to the requirement of a warrant. See id. at 815; Gore v. State, 451 S.W.3d 182, 198 (Tex.App.—Houston [1st Dist.] 2014, pet. refd). Thus, whether law enforcement might be excused from obtaining a warrant in the context of a DWI suspect with dissipating alcohol is analyzed under a totality-of-the-circumstances review for exigent circumstances. Id. at 797 (relying on McNeely, 133 S.Ct. at 1557-58).

To the extent seareh-and-seizure law changed because of McNeely and Villarreal, 'this court has held that the State may not rely on a “good-faith” exception to allow admission of evidence taken without a warrant in violation of the Fourth Amendment by arguing that the officer relied on a good-faith belief that a statute permitted the warrantless search. Tercero, 467 S.W.3d at 6, 8, 10 (holding that officer’s good faith belief that Transportation Code permitted nonconsensual, war-rantless blood draw “is irrelevant” to whether blood-draw results should be suppressed under Fourth Amendment); see State v. Hill, No. 03-13-00834-CR, 484 S.W.3d 587, 592-93, 2016 WL 690738, at *4 (Tex.App.—Austin Feb. 17,2016, pet. filed) (analyzing Article 38.23 of the Texas Code of Criminal Procedure and holding, like in Tercero, that good-faith exception is limited to good-faith reliance on warrant and, absent issuance of warrant, does not apply)-

We turn now to the question whether, in light of McNeely, Villarreal, and Tercero, the warrantless, nonconsensual blood draw was unconstitutional, making the trial court’s denial of McGuire’s motion to suppress erroneous.

4. Constitutionality of search

The State raises three arguments for concluding that the blood draw was constitutional and, therefore, the results of the blood test were admissible. First, it argues that the Texas implied-consent statute creates its own exception to the warrant requirement and that the McNeely Court recognized its viability. Next, it argues that the blood draw was reasonable under a general Fourth Amendment balancing test outside of any exception. Finally, it argues that exigent circumstances existed to justify the warrantless blood draw, namely, the difficulty that the law enforcement officers would have faced obtaining a warrant late at night when tasked with investigating a large-scale fatality accident.

a. Whether the Texas implied-consent statute is its own exception to the warrant requirement

The State argues that the Transportation Code provides its own exception to the Fourth Amendment’s warrant requirement. Both the United States Supreme Court and the Court of Criminal Appeals have rejected the contention that a statute may create a per se exception to a warrant requirement. See McNeely, 133 S.Ct. at 1561-63 (holding that “per se” statutory rule is not permissible under Fourth Amendment); Villarreal, 475 S.W.3d at 797-800 (holding that statute must fall “within a recognized exception to the warrant requirement”). With specific reference to the Texas implied-consent statute, the Court of Criminal Appeals held that “taken by themselves,” the statute’s provisions do not “form a constitutionally valid alternative to the Fourth Amendment warrant requirement.” Villarreal, 475 S.W.3d at 813. Instead, for a warrantless blood test to be constitutional, the evidence must “fit within a recognized exception to the search-warrant requirement” even if the Transportation Code requirements have been met. Id. at 796. Thus, an officer’s compliance with the Transportation Code does not, by itself, mean that the blood draw was constitutional. See id. at 811.

b. Whether the search is constitutional under a “general Fourth Amendment balancing test”

The State next argues that the blood draw was reasonable under a general Fourth Amendment balancing test. Under Villarreal, although the State “has a substantial interest in preventing drunk driving,” a balancing test cannot be invoked to conclude that a warrantless search was constitutional “unless [the search] falls within an established exception to the warrant requirement.” Id. at 807-13; see Tercero, 467 S.W.3d at 8 (stating that “search of a person conducted pursuant to a criminal investigation requires a search warrant or a recognized exception to the warrant requirement”). In other words, even if a comparison of the State’s interest to the criminal defendant’s privacy interest would weigh in the State’s favor, the State still must obtain a warrant or fall within a recognized exception to the warrant requirement. Unless one of the recognized exceptions to the warrant requirement applies, the Fourth Amendment balancing test is not relevant to our inquiry into the constitutionality of. the blood draw. See Villarreal, 475 S.W.3d at 807-13; Tercero, 467 S.W.3d at 8.

c. Whether an exigency existed to permit a warrantless search

Finally, the State argues that exigent circumstances existed to justify the warrantless blood draw. Exigent circumstances exist when there is “no time to seek out a magistrate and secure a warrant.” McNeely, 133 S.Ct. at 1560. The McNeely Court held that the ongoing dissipation of alcohol — which results in a steady destruction of evidence relevant to whether a person has violated a DWI law — by itself, does not supply the necessary exigency to permit a warrantless blood draw from a DWI suspect. Id. at 1561. “In those drunk-driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so.” Id. at 1561; see Sutherland, 436 S.W.3d at 40-41 (holding that warrant was required because there was no exigency to justify warrantless blood draw). “Whether a warrantless blood test of a drunk-driving suspect is reasonable must be determined case by cáse based on the totality of the circumstances.” McNeely, 133 S.Ct. at 1563. The Court explained, by hypothetical, why a categorical exception to the warrant requirement is not appropriate:

Consider, for example, a situation in which the warrant process will not significantly increase the delay before the blood test is conducted because an officer can take steps to secure á warrant while the suspect is being transported to a medical facility by another officer. In such a circumstance, there would be no plausible justification for an exception to' the warrant requirément.

Id. at 1561. ,

Since McNeely, courts have reviewed facts on a case-by-case basis to determine whether an exigency existed. One example is Sutherland v. State, 436 S.W.3d 28, 40-41 (Tex.App.—Amarillo 2014, pet.ref d). There, the defendant was stopped at approximately 11:30 p.m. for driving while intoxicated. The officer “did not describe any factors that would suggest he was confronted with an emergency or any unusual delay in securing a warrant.” ■ Id. He did not make any “effort to obtain a'warrant because he believed that the law required that he obtain a blood sample under the circumstances presented to him.” Id. at 40. Although “[procedures and obstacles in place for obtaining á warrant or the (un)availability of a magistrate may affect whether the police can- obtain a warrant in an expeditious manner and may, therefore, lend themselves to an exigency that justifies a warrantless blood draw,” such-obstacles did not exist in that case. Id: at 40-41. A magistrate was available on the night of the defendant’s arrest and “testified that he permit[s] an officer seeking a search warrant .for a blood draw in a DWI case to interrupt court proceedings due to the dissipating nature of the evidence and sensitive time" frame at issue.” Id. For these reasons, the exigent circumstances exception did not apply and the police officer should have obtained a warrant;Id.

McGuire’s collision occurred in Fort Bend County at 12:40 a.m. The Department of Public Safety, which led the accident investigation, had three officers at the scene, including the lead trooper in charge of the investigation, Trooper M. Filmore. In addition, at least four Fort Bend County Sheriffs Office personnel offered their assistance at the scene. Lieutenant J, Ressler, who works for Fort Bend County, testified that he was at the accident scene roughly one hour and was asked only to “supervise the rerouting of traffic and secur[e] the scene.”

Lead Trooper Tomlin testified that he took “zero steps” to obtain a warrant for a blood draw. He testified that, because someone had died in the accident and McGuire appeared intoxicated, McGuire was subject to a “mandatory- blood draw” under Texas law. He took McGuire to the hospital to have his blood drawn. McGuire refused, and he told McGuire “that it was mandatory and the choice wasn’t up to him.” McGuire’s blood was drawn, despite his refusal and without a warrant, at 2:03 a.m. — approximately 90 minutes after the. accident. There was no evidence that any other officer attempted to secure a warrant either. Accordingly, there was no evidence- that the officers encountered delays or obstacles to obtaining a .timely warrant.

Fort Bend County had a process in place to assist officers, in obtaining warrants. It had assistant district attorneys on call at all hours. Officers, or the assistant district attorneys, could fax transmissions to any of “about 20” Fort Bend County judges at their homes to process a warrant or the officers could take a warrant request to the judges personally. Nonetheless, no effort was made to obtain a warrant by any of the seven officers at the scene, As discussed in McNeely, one officer could have taken steps to secure a warrant while another officer transported McGuire, to a medical facility to have his blood drawn. McNeely, 133 S.Ct. at 1561, “In such a circumstance, there would be no plausible justification for an exception to the warrant requirement.” Id.-, see Sutherland, 436 S.W.3d at 40-41; State v. Ruiz, 2015 WL 5626252, at *5 (Tex.App.—Corpus Christi 2015).

The State lists 24 facts that it argues establish exigent circumstances to justify the warrantless search. These include that the accident occurred late- at night, McGuire-was no longer at the scene when the police arrived and had to be brought back, the accident site needed to be secured and investigated, and officers needed to manage traffic in the area. Additionally, although prosecutors were on call day and night to assist officers with obtaining a warrant, the magistrates, themselves, were not “on call” and would have had to be located. The State notes that, on at least one occasion unrelated to this case, a judge could not be found to issue a warrant. But the evidence also establishes that the officers did not attempt to secure a warrant in this case. • Officer Tomlin testified that he took “zero steps” to obtain a warrant to draw McGuire’s blood. The State argues that it may have proven difficult to- locate a judge to. sign a warrant, but, without any effort to- do so, the testimony is only speculation.-

Having examined the totality of the circumstances, we conclude that the State failed to demonstrate-an exigency to excuse the requirement of a warrant.

d. Whether test results were ad- . missible even though search was unconstitutional

The State offers two arguments why the trial court’s ruling on the motion to suppress should be upheld even if the blood draw was unconstitutional: (1) we should apply a “good-faith exception” and uphold the ruling because McNeely was decided after the blood draw in this case and the officers were working under the “good-faith” belief that they were authorized to have McGuire’s blood drawn without a warrant under the circumstances and (2) admitting evidence of McGuire’s blood-alcohol content was harmless error given the other evidence in the record to establish that he was intoxicated.

The State first asks us to create a “good faith exception” to the exclusionary rule because neither McNeely nor Villarreal had been decided at the time McGuire’s blood was drawn. Yet, the State acknowledges that Texas courts “have uniformly rejected a good faith exception.” The State asked us to create such an exception in Tercero⅛ but we refused to do so. See Tercero, 467 S.W.3d at 10-11. We will not depart from our precedent here.

The State next argues that admission of the blood-draw results “was harmless beyond a reasonable doubt” because other evidence tended to show that McGuire was intoxicated that night. But that evidence was contradictory. Some of the officers on the scene testified that McGuire appeared intoxicated, but others testified that he did not. According to the State, McGuire made an- “admission” that night on police video that he was intoxicated. The context of that statement was as follows: McGuire told the state trooper that the motorcycle did not have “a single light” on it; the trooper said something to him that cannot be discerned from the audio accompanying the video; McGuire responded, “How is that my fault if the dude jumps out like that and he’s not running his lights? ... [inaudible] ... Me being intoxicated was not the issue. You know. It really wasn't. It’s unbelievable.”

' While the State’s theory is one possible interpretation of McGuire’s statement, it is not the only reasonable one, particularly given that the entire exchange cannot be known due to the audio’s poor quality. A reasonable jury could interpret McGuire’s statement to mean that whether or not he was intoxicated was not the issue and would not have been the cause of the accident because Stidman’s motorcycle “jump[ed] out” in front of him without his lights functioning. Because the statement is subject to more than one reasonable interpretation, we do not view it as determinative on whether the error was harmful.

We must reverse a conviction if the appellate record reveals a constitutional error, unless “we determine beyond a reasonable doubt that the error did not contribute to the conviction or punishment.” Holmes v. State, 323 S.W.3d 163, 173-74 (Tex.Crim.App.2009). We cannot conclude that this evidence was harmless. The jury was informed that McGuire’s blood had an alcohol concentration of 0.16 and was instructed that intoxication means “having an alcohol concentration of 0.08 or more.” “Given the testimony regarding the taking of appellant’s blood sample and his toxicology results and the jury’s instruction that intoxicated means, in part, ‘having an alcohol concentration of 0.08 or more,’ we cannot determine beyond a reasonable doubt that the error did not contribute to [the] conviction.” Perez v. State, 464 S.W.3d 34, 48 (Tex.App.—Houston [1st Dist.] 2015, pet. ref'd). Moreover, there was testimony from some police officers that McGuire did not appear intoxicated.

Because the blood draw violated the Fourth Amendment and is not otherwise admissible, the trial court erred by denying the motion to suppress.

D. Venue

McGuire contends that the trial court abused its discretion by denying his venue motion because he established that pretrial publicity was pervasive and unfairly prejudicial.

1. Required showing for a change in venue

Every defendant in a criminal case is guaranteed the due process of a fair trial by an impartial jury under the United States and Texas constitutions. U.S. Const, amend. VI; Tex. Const, art. I, § 10. A change in venue may be granted on a criminal defendant’s motion if supported by the defendant’s affidavit and the affidavits of two other credible residents of the county if, within the county, there is either (1) “so great a prejudice against [the defendant] that he cannot obtain a fair and impartial trial” or (2) “a dangerous combination against [the defendant] instigated by influential persons, by reason of which he cannot expect a fair trial.” Tex. Code Chim. Prog. Ann. art. 31.03(a) (West 2006). The movant has the burden to establish either óf these bases for a change of venue. See DeBlanc v. State, 799 S.W.2d 701, 704 (Tex.Crim.App.1990).

“Change of venue is a remedy designed to ensure the defendant a fair trial when extensive news coverage has raised substantial doubts about the effectiveness of voir dire for obtaining an impartial jury.” Ryser v. State, 453 S.W.3d 17, 33 (Tex.App.—Houston [1st Dist.] 2014, pet. ref'd); see Beets v. State, 767 S.W.2d 711, 742-43 (Tex.Crim.App.1987). To justify a change of venue based on public attention sparked by media, a defendant must show that the “publicity was pervasive, prejudicial, and inflammatory.” Gonzalez v. State, 222 S.W.3d 446, 449 (Tex.Crim.App.2007); Salazar v. State, 38 S.W.3d 141, 150 (Tex.Crim.App.2001). “The- mere existence of media attention or publicity is-not enough, by itself, to merit a change, of venue.” Gonzalez, 222 S.W.3d at 449; accord Renteria v. State, 206 S.W.3d 689, 709 (Tex.Crim.App.2006). “Even extensive knowledge of the case in the community is not sufficient if there is not a showing of prejudicial or inflammatory coverage.” Ryser, 453 S.W.3d at 33; see Gonzalez, 222 S.W.3d at 449. The defendant “bears a heavy burden to prove the existence of such prejudice in the community that the likelihood of obtaining a fair and impartial jury is doubtful.” De-Blanc, 799 S.W.2d at 704 (quoting Nethery v. State, 692 S.W.2d 686, 694 (Tex.Crim.App.1985)).

To determine whether the publicity was inflammatory and prejudicial, the court can consider evidence presented at the venue hearing and statements made by veniremembers during voir dire if the trial court rules after the voir dire process. Gonzalez, 222 S.W.3d at 451. Factors a reviewing court may consider when a defendant appeals the denial of his venue motion include: (1) the nature of .the pretrial publicity; (2) the connection of government officials with the publicity; (3) the length of time between the publicity and the trial; (4) the severity and notoriety of the offense; (5) the area from which the jury panel was drawn; and (6) any factors likely to affect the candor and veracity of the prospective jurors during voir dire. See Gonzalez, 222 S.W.3d at 448; Henley v. State, 576 S.W.2d 66, 71-72 (Tex.Crim.App.1978).

2. Standard of review

Denial of a change-of-venue request is reviewed for ah abuse of discretion. Gonzalez, 222 S.W.3d at 449. We give- great deference to the trial court, which is in the best position to resolve issues involving conflicts in testimony and to evaluate the credibility of the witnesses. Id. at 452; Brooks, 323 S.W.3d at 899. If the trial court" does not make explicit findings of fact, a reviewing court will assume that the trial court made implicit findings of fact that support its ruling as long as those findings are supported by " the record. Montanez v. State, 195 S.W.3d 101, 106 (Tex.Crim.App.2006); State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App.2000). As long as the trial court’s ruling is within the zone of reasonable disagreement, the trial court does not abuse its discretion in denying the venue motion. See Gonzalez, 222 S.W.3d at 449; Ryser, 453 S.W.3d at 34.

3. Whether trial court abused discretion by denying venue motion

McGuire argued in his venue motion that the pretrial publicity was pervasive and unfairly prejudicial. He attached to his venue motion several articles concerning the accident and his criminal prosecution that had been published online and in print. However, he offered no evidence regarding the circulation of these materials. See Ryser, 453 S.W.3d at 35 (considering readership of newspapers containing relevant articles and viewership of news programs in evaluating pervasiveness of pretrial publicity); see also U.S. v. Ricardo, 619 F.2d 1124, 1132 (5th Cir.1980) (failure to produce newspaper circulation statistics instrumental in court’s rejection of appellant’s pretrial publicity claims).

At the hearing, McGuire presented three witnesses who all testified that they did not believe he could receive a fair trial in Fort..Bend County. All were family friends or relatives. The State countered with two witnesses who testified that McGuire could receive a fair trial in the county. We defer to the trial court’s evaluation of these witnesses’ credibility and its resolution of this conflicting testimony. Gonzalez, 222 S.W.3d at 449.

During voir dire, only five out of 118 veniremembers confirmed that they had previously heard about the case. Of those five, tvyo agreed that they had been influenced by the publicity, and one described what he read .as “tragic.” The trial court was within its discretion to accept the remaining 113 veniremembers’ assurances that they either had not seen publicity about the case or that what they did see would not influence them- to such a degree that they could not reach a fair verdict.

With only five veniremembers testifying that they saw publicity out of a panel of 118, McGuire’s showing is considerably less than in other cases in which trial courts’ rulings to deny venue motions have been affirmed. See id., at 450 (discussing .standard of review and recounting numerous cases in which denial of venue motion was held to be within trial courts’ discretion when as many as one-third of the panel admitted to seeing pretrial publicity); Von Byrd v. State, 569 S.W.2.d 883, 890-91 (Tex.Crim.App.1978) (concluding trial court did not abuse discretion by denying venue motion when 69 out of 109 panelists saw publicity).

“This court affords great deference to the trial court to determine venue motions.” Ryser, 453 S.W.3d at 35; see Gonzalez, 222 S.W.3d at 452. “When pretrial publicity is at issue, ‘primary reliance on the judgment of the trial court makes [especially] good sense’ because the judge ‘sits in the locale where the, publicity is said to have had its effect’....” Skilling v. United States, 561 U.S. 358, 386, 130 S.Ct. 2896, 2918, 177 L.Ed.2d 619 (2010) (quoting Mu’Min v. Virginia, 500 U.S. 415, 427, 111 S.Ct. 1899, 1906, 114 L.Ed.2d 493). The fact that several venire-members had heard of the case does not show that the pretrial publicity had permeated the community to such a degree that denial of the venue motion was outside the zone of reasonable disagreement.

We overrule McGuire’s venue issue, having .concluded that the trial court did not abuse its discretion by denying his venue motion. We note, though, -that a new trial could involve new media accounts, and, should the trial court face a venue motion .in the future, the trial court’s evaluation, .at that time, would involve venue facts that are not exactly the same as were presented here.

E. Cross appeal arising from felony-murder conviction

The State argues on cross-appeal that the trial court erred by adopting McGuire’s double-jeopardy argument and instructing the jury that it could not return a conviction on felony murder and intoxication manslaughter.

The court’s charge instructed the jury on multiple offenses, including felony murder, intoxication manslaughter, third-offense driving while intoxicated, second-offense driving while intoxicated, and driving while intoxicated. The court instructed the jury that it “may find the Defendant guilty of only one of the offenses listed above, if he is, in fact, guilty of that offense, or acquit the Defendant of all charges.” The jury returned a guilty finding for felony murder. Because of the court’s instruction, it is unknown whether the jury also would have determined that all elements were satisfied for. McGuire to be found guilty of intoxication manslaughter; by instruction, the jury was not allowed to return more than one guilty finding.

“The Double Jeopardy Clause of the Fifth Amendment, applicable to all states through the Fourteenth Amendment, protects an accused against ... multiple punishments for the same offense.” Evans v. State, 299 S.W.3d 138, 140 (Tex.Crim.App.2009) (citing Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977)). The State concedes that punishment for both felony murder and intoxication manslaughter would violate double jeopardy. But it contends that double jeopardy is inapplicable because