Elias Esequiel Vasquez v. State ( 2015 )


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  •                                                                                        ACCEPTED
    04-13-00338-CR & 04-13-00339-CR
    FOURTH COURT OF APPEALS
    SAN ANTONIO, TEXAS
    1/9/2015 5:55:09 PM
    KEITH HOTTLE
    CLERK
    CAUSE NOS. 04-13-00339-CR
    IN THE FOURTH COURT OF APPEALS OF TEXAS
    FILED IN
    4th COURT OF APPEALS
    SAN ANTONIO, TEXAS
    __________________________________________________________________
    1/9/2015 5:55:09 PM
    KEITH E. HOTTLE
    APPEAL OF A JUDGMENT IN TRIAL CAUSE NOS. 11-CRS-272    Clerk
    FROM THE 229TH DISTRICT COURT OF STARR COUNTY, TEXAS
    PRESIDING JUDGE HON. ANA LISA GARZA
    __________________________________________________________________
    ELIAS ESEQUIEL VASQUEZ, Appellant
    VS.
    THE STATE OF TEXAS, Appellee
    __________________________________________________________________
    APPELLANT’S MOTION FOR REHEARING
    _________________________________________________________________
    Respectfully submitted,
    Victoria Guerra
    320 w. Pecan Blvd.
    McAllen, Texas 78501
    (956) 618-2609
    (956) 618-2553 (fax)
    State Bar Number: 08578900
    Appellant’s Attorney
    MAY IT PLEASE THE COURT:
    COMES NOW Elias Esequiel Vasquez, appellant in the above cause, and
    files this motion for rehearing and would show this Court the following:
    There exists a fundamental error in this Court’s opinion that skews this
    Court’s analysis and result. Specifically, this Court’s opinion was based not on the
    purported lack of standing of Mr. Vasquez to complain of a violation of his
    expectation of privacy when the police stole, in violation of the Fourth Amendment
    to the United States Constitution, the EDR from the GMC Canyon which Mr.
    Vasquez was driving.
    Utilizing McDuff v. State, 
    939 S.W.2d 607
    , 616 (Tex. Crim. App. 1997), this
    Court held that Mr. Vasquez voluntarily discarded, left behind, or otherwise
    relinquished his interest in property so that he could no longer retain a reasonable
    expectation of privacy with regard to it at the time of the search. No evidence
    exists to support this theory that appeared for the first time in the State’s brief and
    was not raised at the trial court by the State.
    Abandonment of property occurs only “if the defendant intended to abandon
    the property and his decision to abandon it was not due to police misconduct.”
    
    McDuff, 939 S.W.2d at 616
    .
    In Miller v. State, 
    335 S.W.3d 847
    (Tex. App.—Austin 2011, no pet.) the
    court drew a distinction between voluntary and involuntary abandonment. In that
    2
    case, the defendant, a police officer accidentally left a personal thumb drive which
    contained child pornography and police activity reports in a patrol-room computer.
    The court noted in footnote 4 that abandonment of property occurs only if the
    defendant intended to abandon the property and his decision to abandon it was not
    due to police misconduct (citing 
    McDuff, 939 S.W.2d at 616
    ) and it was
    undisputed that the defendant’s abandonment of his thumb drive was unintentional.
    See 
    Miller, 335 S.W.3d at 858
    .
    In Matthews v. State, 
    431 S.W.3d 596
    (Tex. Crim. App. 2014), the Court of
    Criminal Appeals held that the defendant had abandoned the borrowed vehicle
    when he took off running after the police conducted a stop.
    Even the United States Supreme Court has addressed the abandonment issue.
    In Abel v. United States, 
    362 U.S. 217
    (U.S. 1960), the defendant who was illegally
    present in the United States, and who was under suspicion of espionage by the FBI,
    was arrested in a hotel room. During the search of the hotel room, a forged birth
    certificate was found in the trash can of the hotel room. The Court held that it was
    lawful to seize items thrown away in the wastepaper basket where the defendant
    had abandoned the articles contained in the basket by throwing them away.
    None of those situations exist here which establish intentional abandonment
    of the vehicle. Mr. Vasquez was lying on the ground at the time of the collision.
    14R31, 78. Mr. Vasquez was nonresponsive at the collision scene. 14R32, 78.
    3
    District Attorney investigator Trinidad Lopez called for medical assistance.
    14R31.
    Meanwhile, the State maintained control over the vehicle. On or about
    January 3, 2012, a subpoena was issued to obtain the EDR from Rey’s Auto Parts.
    CR291; 10R13–14.       Although investigator Homer Flores initially obtained the
    EDR from the wrong vehcile pursuant to a grand jury subpoena, he later obtained
    the correct EDR without a warrant. 10R14. No evidence exists that Mr. Vasquez
    intentionally abandoned said vehicle. Even if he wanted to obtain return of the
    vehicle, he could not have because it was still in the State’s custody, as the State
    needed it to obtain evidence as on January 3, 2012 and thereafter. 
    Id. It should
    also be strongly noted that the abandonment issue was not raised in
    the trial court and Mr. Vasquez nor the trial court had no opportunity to address
    said abandonment issue at said time.
    As such, no evidence exists that Mr. Vasquez intentionally abandoned the
    vehicle at issue.
    WHEREFORE, Mr. Vasquez prays that this Court grant Mr. Vasquez’s
    motion for rehearing; set aside it’s prior judgment or opinion, set aside the
    judgment of the trial court, remand this case to the district court for further
    proceedings, and grant such other relief to which Mr. Vasquez is justly entitled.
    4
    Respectfully submitted,
    Law Office of Victoria Guerra
    320 W. Pecan Blvd.
    McAllen, Texas 78501
    (956) 618-2609
    (956) 618-2553 (facsimile)
    By:   /s/ Victoria Guerra
    Victoria Guerra
    State Bar Number: 0857900
    Appellate Attorney for Appellant
    CERTIFICATE OF SERVICE
    On this 9th day January, 2015, the undersigned delivered a copy of the
    foregoing Appellant’s brief to Appellee’s Counsel jaolson_ccda@yahoo.com or his
    facsimile: 210-858-6780.
    /s/ Victoria Guerra
    Victoria Guerra, Attorney for Appellant
    CERTIFICATION OF COMPLIANCE
    In compliance with TRAP 9.4(i)(3), the undersigned certifies that the
    number of words in this brief, excluding those matters listed in Rule 9.4(i) (l), is
    699.
    /s/ Victoria Guerra
    Victoria Guerra
    5
    

Document Info

Docket Number: 04-13-00339-CR

Filed Date: 1/9/2015

Precedential Status: Precedential

Modified Date: 9/28/2016