Garcia, Dylan Jezreel ( 2015 )

PD-0712-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 7/8/2015 1:19:53 PM
Accepted 7/9/2015 4:28:04 PM
ABEL ACOSTA
CLERK
NO. PD-0712-15
IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
DYLAN JEZREEL GARCIA, Appellant
VS.
THE STATE OF TEXAS, Appellee
On Petition for Discretionary Review from
The Fourteenth Court of Appeals
in No. 14-14-00387-CR Affirming
The 300th Criminal District Court of
Brazoria County, Texas, Cause No. 68303,
Honorable K. Randall Hufstetler, Judge Presiding
APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
Crespin Michael Linton
440 Louisiana, Suite 900
July 9, 2015 Houston, Texas 77002
Texas Bar No. 12392850
(713) 236-1319
(713) 236-1242 (FAX)
crespin@hal-pc.org
Counsel for Appellant
Oral Argument Waived
INDEX
PAGE
Index 2
Names of All Parties 3
List of Authorities 4
Statement Regarding Oral Argument 5
Statement of the Case 5
Procedural History 5
GROUND FOR REVIEW 6
THE COURT OF APPEALS ERRED IN DETERMINING
THAT EXIGENT CIRCUMSTANCES JUSTIFIED THE
WARRANTLESS SEIZURE OF APPELLANT’S BLOOD
Reason for Review 6
Statement of Facts 7
Arguments and Authorities 8
Prayer for Relief 12
Certificate of Compliance 12
Certificate of Service 12
Appendix A 13
Opinion, Garcia v. State
2
NAMES OF ALL PARTIES
Pursuant to Tex. R. App. P. 38.1(a), the following are interested parties:
Presiding Judge: K. Randall Hufstetler Brown
300th Criminal District Court
111 E. Locust, 4th Floor
Angleton, Texas 77515
Appellant: Mr. Dylan Jezreel Garcia
Texas Department of Criminal Justice
TDCJID# 01926397
Hamilton Unit
200 Lee Morrison Lane
Bryan, Texas 77807
Attorneys for State: Mr. Trey Picard
Brazoria County District Attorney's
Office
111 E. Locust, 4th Floor
Angleton, Texas 77515
Attorneys for Appellant: Mr. Scott M. Brown (trial)
121 E. Myrtle
Angleton, Texas 77515
Mr. Crespin Michael Linton (appeal)
440 Louisiana Street, Suite 900
Houston, Texas 77002
3
LIST OF AUTHORITIES
CASES PAGE
Douds v. State, 434 S.W.3d 842……………………….…… 10
(Tex. App. - Houston [14th Dist.] 2014, pet. granted)
McGee v. State, 105 S.W.3d 609………………………… 9
(Tex. Crim. App. 2003)
Shepherd v. State, 273 S.W.3d 681…………………………… 9
(Tex. Crim. App. 2008)
State v. Mosely, 348 S.W.3d 435…………………………… 10
(Tex. App. - Austin 2011, pet. ref’d)
Wiede v. State, 214 S.W.3d 17…………………………………… 9
(Tex. Crim. App. 2007)
RULES
TEX. R. App. Proc., Rule
38.1(a)…………………………………….……………………………. 3
4
STATEMENT REGARDING ORAL ARGUMENT
Pursuant to Rule 39.1, Appellant waives the right to oral argument.
STATEMENT OF THE CASE
The Appellant was charged with Intoxication Manslaughter and Felony
Driving While Intoxicated. After a jury trial, the jury found Appellant guilty of
both charges. The jury sentenced him to a term of 12 years in prison for
Intoxication Manslaughter and 10 years in prison for Felony Driving While
Intoxicated.
PROCEDURAL HISTORY
All points of error were affirmed by the Fourteenth Court of Appeals on
May 12, 2015, in a published opinion. No motion for rehearing was filed.
5
GROUND FOR REVIEW
GROUND FOR REVIEW
THE COURT OF APPEALS ERRED IN DETERMINING THAT
EXIGENT CIRCUMSTANCES JUSTIFIED THE
WARRANTLESS SEIZURE OF APPELLANT’S BLOOD.
REASON FOR REVIEW
THE COURT OF APPEALS HAS DEPARTED SO FAR FROM
THE ACCEPTED AND USUAL COURSE OF JUDICIAL
PROCEEDINGS OR SO FAR SANCTIONED SUCH A
DEPARTURE BY A LOWER COURT, AS TO CALL FOR AN
EXERCISE OF THE COURT OF CRIMINAL APPEAL’S
POWER OF SUPERVISION.
6
STATEMENT OF FACTS
At about 10:20 p.m. on June 3, 2012, Appellant was involved in a one
car accident on County Road 690 in Brazoria County, Texas, in which the
passenger was killed. Trooper David Wyman arrived at the scene at about
11:00 p.m. and smelled alcohol on Appellant’s breath inside an ambulance
in which Appellant was located. Appellant was then taken to a local hospital.
Wyman did not arrive at the hospital until Midnight because he had to monitor
the accident scene until another officer arrived. At 1:15 a.m., Wyman
ordered a mandatory blood draw after he concluded that Appellant was
intoxicated and after Appellant refused to consent to provide a specimen of
his blood.
In a pretrial hearing, the trial denied Appellant’s motion to suppress the
results of the blood draw obtained without a warrant. The trial court found
that exigent circumstances justified that warrantless seizure of Appellant’s
blood. The jury found Appellant guilty of Intoxication Manslaughter and
Felony DWI and sentenced him to prison terms of 12 years and 10 years
respectively.
7
ARGUMENTS AND AUTHORITIES
GROUND FOR REVIEW ONE
THE COURT OF APPEALS ERRED IN DETERMINING THAT
EXIGENT CIRCUMSTANCES JUSTIFIED THE
WARRANTLESS SEIZURE OF APPELLANT’S BLOOD.
REASON FOR REVIEW
THE COURT OF APPEALS HAS SO FAR DEPARTED FROM
THE ACCEPTED AND USUAL COURSE OF JUDICIAL
PROCEEDINGS OR SO FAR SANCTIONED SUCH A
DEPARTURE BY A LOWER COURT, AS TO CALL FOR AN
EXERCISE OF THE COURT OF CRIMINAL APPEAL’S
POWER OF SUPERVISION.
8
DISCUSSION
The Court of Appeals incorrectly held that the totality of the
circumstances supported the trial court’s decision that found that exigent
circumstances existed that made obtaining a warrant impractical.
At a suppression hearing, the trial court is the sole and exclusive trier
of fact and judge of credibility of the witnesses, as well as the weight to be
give their testimony. Weide v. State, 214 S.W.3d 17 (Tex. Crim. App. 2007)
In reviewing a trial court’s ruling on a motion to suppress, the appellate court
gives almost total deference to a trial court’s determination of historical facts,
and review de novo the trial court’s application of law of search and seizure.
Shepherd v. State, 273 S.W.3d 681 (Tex. Crim. App. 2008
The exceptions to the rule that a search must rest upon a search
warrant include: 1) voluntary consent to search, 2) search under exigent
circumstances, and 3) search incident to arrest, and the State bears the
burden to prove that a warrantless search falls within one of these
exceptions. McGee v. State, 105 S.W.3d 609, 615 (Tex. Crim. App. 2003)
A warrantless seizure of a blood sample can be constitutionally permissible
if the State proves that the police had probable cause to arrest a suspect,
9
exigent circumstances existed, and a reasonable method of extraction is
available. State v. Mosely, 348 S.W.3d 435, 440 (Tex. App. – Austin 2011,
pet. ref’d) Only the exigent circumstances exception applies in this case
because Appellant did not consent to the taking of his blood and the taking
of blood was not a proper search incident to arrest. “To ensure that the
exigencies of the situation make dispensing with the constitutional
requirements of a warrant imperative, courts must focus on whether the State
showed that police could not reasonably obtain a warrant, not on whether it
showed how severe the accident was. Douds v. State, 434 S.W.3d 842, 854
(Tex. App. – Houston [14th Dist.] 2014, pet. granted).
While Appellant acknowledges that 3 hours passed from the time of
the accident until Trooper Wyman ordered the mandatory blood draw,
Appellant contends that the appellate court refused to acknowledge the fact
that Trooper Wyman never even attempted to obtain a warrant. Trooper
Wyman supported his decision for a warrantless blood draw by testifying it
would have taken too much time for him to type up the warrant and find a
local judge in the middle of the night to sign the warrant for a blood draw.
By relying upon Trooper Wyman’s testimony to uphold the trial court’s
10
decision, the appellate court supported Trooper Wyman’s decision to not
even try to obtain a warrant because the process was too hard. Because
Wyman had already smelled alcohol on Appellant’s breath at the accident
scene, Wyman could have called his office to begin the process of locating
a judge and preparing a warrant, but Wyman decided against the additional
work and just relied on the mandatory blood draw statute. Wyman’s refusal
to do the extra work necessary to obtain warrant does not amount to
exigent circumstances. Therefore, the Court of Appeals erred in
determining that exigent circumstances existed to justify the warrantless
seizure of Appellant’s blood.
11
PRAYER FOR RELIEF
For the reasons stated, Appellant Garcia prays the Court to grant his
Petition For Discretionary Review, and after considering the grounds for
review, reverse the judgment of the court of appeals and grant the relief
requested.
Respectfully submitted,
_/s/ Crespin Michael Linton_
Crespin Michael Linton
440 Louisiana, Suite 900
Houston, Texas 77002
Texas Bar No. 12392850
(713) 236-1319
(713) 236-1242 (Fax)
CERTIFICATE OF COMPLIANCE
I hereby certify that Appellant’s Brief, as calculated under Texas Appellate
Rule of Appellate Procedure 9.4, contains 1,466 words as determined by
the Word program used to prepare this document.
_/s/ Crespin Michael Linton
Crespin Michael Linton
CERTIFICATE OF SERVICE
I do hereby certify that on this the 8th day of July 2015, a true and correct
copy of the foregoing Appellant’s Brief was served by E-service in
compliance with Local Rule 4 of the Court of Appeals or was served in
compliance with Article 9.5 of the Rules of Appellate Procedure delivered to
the Assistant District Attorney of Harris County, Texas, 111 E. Locust
Street, 4th Floor Angleton, Texas 77515 at davidb@brazoria-county.com
and the State Prosecuting Attorney, P.O. Box 12405 Austin, Texas 78711
at information@spa.texas.gov.
__/s/_Crespin Michael Linton__
Crespin Michael Linton
12
APPENDIX A
Opinion In the Court of Appeals
For The Fourteenth District of Texas
No. 14-14-00387-CR
Dylan Jezreel Garcia,
Appellant
v.
State of Texas,
Appellee
13