Jose Angel Flores Jr. v. State ( 2015 )

ELECTRONIC RECORD
COA # 04-13-00754-CR OFFENSE: DWI
JOSE ANGEL FLORES, JR.
STYLE: V. THE STATE OF TEXAS COUNTY: GUADALUPE
REVERSED AND
COA DISPOSITION: REMANDED TRIAL COURT: COUNTY COURT AT LAW #2
DATE: 12/17/14 Publish: NO TC CASE #: CCL-10-0869
IN THE COURT OF CRIMINAL APPEALS
ELECTRONIC RECORD
JOSE ANGEL FLORES, JR. V.
STYLE: THE STATE OF TEXAS CCA #:
____________________________ Petition CCA Disposition: ____________________
FOR DISCRETIONARY REVIEW IN CCA IS: DATE: ____________________________
___________________________________ JUDGE: ___________________________
DATE: _____________________________ SIGNED: ___________ PC: ________
JUDGE: ___________________________ PUBLISH: __________ DNP: _______
---------------------------
______________________________ MOTION FOR
REHEARING IN CCA IS: ____________________
JUDGE: __________________________________
4th Court of Appeals Docket Sheet
Case Number: 04-13-00754-CR
Date Filed: 10/29/2013 8:41AM
Style: Criminal - Appellant Jose Angel Flores Jr.
v.Criminal - State of Texas The State of Texas
False False True
Case Priority: Regular
Original Proceeding: No
Case Description: DWI
Punishment: 90 DAYS JAIL & $1,000 FINE. BondAmount: 1500.00 In Jail: False
Trial Court Information
County Court Name Case # Judge Court Reporter
Guadalupe County Court At CCL-10-0869 Honorable Frank Follis Sharron, Stacey
Law No 2
Parties and Attorneys
Party Party Name Remarks Counsel Code Person Name Date On Date Off
Criminal - Flores, Jr., Jose Pro Se Jose Angel Flores, Jr. 10/29/2013
Appellant Angel
Appointed attorney Susan Lee Schoon 11/14/2013
Criminal - State of The State of Texas District attorney Christopher M. Eaton 07/01/2014
Texas
District attorney Heather McMinn 10/29/2013 07/01/2014
Interested Entities
Entity Name Interested Notice Date On Date Off
Entity
Type
Eaton, DT ATTY Yes 07/01/2014
Christopher M. 9:06AM
Flores, Jr., Jose PRO SE No 10/29/2013
Angel 4:21PM
Follis, Honorable TC JDG No 10/29/2013
Frank 8:54AM
Kiel, Teresa CO CLK No 10/29/2013
4:05PM
McMinn, Heather DT ATTY Yes 10/29/2013 07/01/20
4:17PM 14
Schoon, , Susan AP ATTY Yes 11/14/2013
Lee 12:21PM
Sharron, Stacey RPT No 10/29/2013
8:55AM
Events and Opinions
Event Date Stage Event Event Disposition Grouping Order Submis
Description Type sion
03/16/2015 CRM APP NOTICE RECD
02/17/2015 CRM APP PDR FLD/CCA SPA
01/22/2015 FILING MT EXT PDR SPA GRANT
DISP
12/17/2014 FILING MEM OPINION REVREM
ISSD
Opinion Type Author
Original Justice Karen
Memorandum Angelini
10/07/2014 FILING SUBMITTED Brief
08/27/2014 FILING ORDER
ENTERED
Report Prepared By: jquintero, on 3/23/2015 1:05:53 PM 1 of 4
4th Court of Appeals Docket Sheet
Case Number: 04-13-00754-CR
Date Filed: 10/29/2013 8:41AM
Style: Criminal - Appellant Jose Angel Flores Jr.
v.Criminal - State of Texas The State of Texas
False False True
Events and Opinions
Event Date Stage Event Event Disposition Grouping Order Submis
Description Type sion
08/27/2014 FILING SUBMISSION/ Brief
OA DENIED
07/31/2014 FILING AT ISSUE
07/30/2014 FILING EBRIEF FLD STA
2:39PM NO
07/02/2014 FILING MT EXT BRIEF STA GRANT
DISP
07/01/2014 FILING MT EXT BRIEF STA
11:27AM FLD
06/02/2014 FILING EBRIEF FLD APP
10:01PM YES
05/28/2014 FILING MT EXT BRIEF APP GRANT
DISP
05/28/2014 FILING ORDER
ENTERED
05/27/2014 FILING MT EXT BRIEF APP
6:19PM FLD
05/22/2014 FILING RECORD OUT APE
04/24/2014 FILING MT EXT BRIEF APP GRANT
DISP
04/24/2014 FILING ORDER
ENTERED
04/21/2014 FILING MT EXT BRIEF APP
12:49PM FLD
03/24/2014 FILING MT EXT BRIEF APP
10:55AM FLD
03/24/2014 FILING MT EXT BRIEF APP GRANT
DISP
02/20/2014 FILING ERPT RPT
2:29PM RECORD FLD
02/04/2014 FILING PRESCREENE
D
02/03/2014 FILING ECLK CO CLK
10:54AM RECORD FLD
01/08/2014 FILING DS FLD APP
4:34PM
01/07/2014 FILING INTERNAL APP
MEMO
11/20/2013 FILING MT NEW APP
TRIAL FLD
11/14/2013 FILING LTR FLD TC JDG
11/13/2013 FILING RESP FLD TC JDG
11/05/2013 FILING ORDER
ENTERED
10/30/2013 FILING TELEPHONE CO CLK
INQUIRY
10/30/2013 FILING TELEPHONE APP
INQUIRY
10/29/2013 FILING NOA FLD/COA APP
10/29/2013 FILING CASE BEGAN
Report Prepared By: jquintero, on 3/23/2015 1:05:53 PM 2 of 4
4th Court of Appeals Docket Sheet
Case Number: 04-13-00754-CR
Date Filed: 10/29/2013 8:41AM
Style: Criminal - Appellant Jose Angel Flores Jr.
v.Criminal - State of Texas The State of Texas
False False True
Events and Opinions
Event Date Stage Event Event Disposition Grouping Order Submis
Description Type sion
10/25/2013 FILING NOA FLD/TC APP
10/24/2013 FILING SENTENCE
IMPOSED
Document Summary
Stage Location File Date Event File Description Index Volume Page
FILING Event 12/17/2014 MEM OPINION JUDGMENT 12/17/14
ISSD
REVREM
FILING Opinion 12/17/2014 MEM OPINION OPINION 12/17/14
ISSD
REVREM
FILING Event 11/20/2013 MT NEW TRIAL MOTION
FLD
APP
FILING Event 11/14/2013 LTR FLD ORDER
TC JDG
FILING Event 11/13/2013 RESP FLD RESPONSE
TC JDG
FILING Event 11/05/2013 ORDER ORDER
ENTERED
FILING Event 10/29/2013 NOA FLD/COA CERTIFICATE OF NOTICE OF APPEAL
APP
FILING Event 10/29/2013 NOA FLD/COA JUDGMENT
APP
FILING Event 10/29/2013 NOA FLD/COA MOTION
APP
FILING Event 10/29/2013 NOA FLD/COA NOTICE OF APPEAL
APP
FILING Event 10/29/2013 NOA FLD/COA TRIAL COURT CERTIFICATION
APP
FILING Event 08/27/2014 ORDER ORDER DENYING 8.27.14
ENTERED
FILING Event 08/27/2014 SUBMISSION/OA COVER LTR DENYING 8.27.14
DENIED
FILING Event 07/30/2014 EBRIEF FLD NO BRIEF
2:39PM STA
FILING Event 07/02/2014 MT EXT BRIEF ORDER
DISP
STA
GRANT
FILING Event 07/01/2014 MT EXT BRIEF MOTION
11:27AM FLD
STA
FILING Event 06/02/2014 EBRIEF FLD YES BRIEF
10:01PM APP
FILING Event 05/28/2014 ORDER ORDER
ENTERED
FILING Event 05/27/2014 MT EXT BRIEF MOTION
6:19PM FLD
APP
FILING Event 05/22/2014 RECORD OUT REQUEST
APE
FILING Event 04/24/2014 ORDER ORDER
ENTERED
Report Prepared By: jquintero, on 3/23/2015 1:05:53 PM 3 of 4
4th Court of Appeals Docket Sheet
Case Number: 04-13-00754-CR
Date Filed: 10/29/2013 8:41AM
Style: Criminal - Appellant Jose Angel Flores Jr.
v.Criminal - State of Texas The State of Texas
False False True
Document Summary
Stage Location File Date Event File Description Index Volume Page
FILING Event 04/21/2014 MT EXT BRIEF MOTION
12:49PM FLD
APP
FILING Event 03/24/2014 MT EXT BRIEF MOTION
10:55AM FLD
APP
FILING Event 03/24/2014 MT EXT BRIEF ORDER
DISP
APP
GRANT
CRM APP Event 03/16/2015 NOTICE RECD Crm App Notice 3-16-15
FILING Event 02/20/2014 ERPT RECORD Vol 1 Master Index State vs. Flores, Jr.
2:29PM FLD
RPT
FILING Event 02/20/2014 ERPT RECORD Vol 2 Motions State vs. Flores, Jr.
2:29PM FLD
RPT
FILING Event 02/20/2014 ERPT RECORD Vol 3 Motions State vs. Flores, Jr.
2:29PM FLD
RPT
FILING Event 02/20/2014 ERPT RECORD Vol 4 Plea State vs. Flores, Jr.
2:29PM FLD
RPT
FILING Event 02/20/2014 ERPT RECORD Vol 5 Punishment State vs. Flores, Jr.
2:29PM FLD
RPT
CRM APP Event 02/17/2015 PDR FLD/CCA Crm App Notice 2-17-15
SPA
FILING Event 02/03/2014 ECLK RECORD TRIAL COURT CLERK'S APPLEEATE
10:54AM FLD RECORD, VOLUME 1
CO CLK
FILING Event 01/22/2015 MT EXT PDR Crm App Notice 1-22-15
DISP
SPA
GRANT
FILING Event 01/08/2014 DS FLD DOCKETING STATEMENT
4:34PM APP
FILING Event 01/07/2014 INTERNAL MEMO COURTESY DOCKETING STATEMENT
APP
Calendars
Stage Set Date Calendar Name Reason Set
FILING 10/29/2013 STAT CENTRAL STAFF
REVIEW
CRM APP 03/17/2015 STAT RECORD SEND
CRM APP 02/17/2015 APPL CT REVIEW
Report Prepared By: jquintero, on 3/23/2015 1:05:53 PM 4 of 4
Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-13-00754-CR
Jose Angel FLORES Jr.,
Appellant
v.
The STATE of Texas,
Appellee
From the County Court at Law No. 2, Guadalupe County, Texas
Trial Court No. CCL-10-0869
Honorable Frank Follis, Judge Presiding
Opinion by: Karen Angelini, Justice
Sitting: Catherine Stone, Chief Justice
Karen Angelini, Justice
Rebeca C. Martinez, Justice
Delivered and Filed: December 17, 2014
REVERSED AND REMANDED
Jose Angel Flores Jr. appeals the trial court’s denial of his motion to suppress blood
evidence, arguing his motion should have been granted pursuant to the Supreme Court’s recent
decision in Missouri v. McNeely, 133 S. Ct. 1552 (2013). Because we agree that Flores’s motion
to suppress should have been granted, we reverse the judgment of the trial court and remand the
cause for a new trial.
04-13-00754-CR
BACKGROUND
On November 3, 2009, at about 8:00 p.m., Flores was stopped for a traffic violation by
Deputy Robert Williams and asked to provide a breath specimen. Flores refused. He was then
arrested and placed inside Deputy Williams’s patrol vehicle. While en route to the jail, Deputy
Williams called dispatch and asked that a background check be run on Flores. Deputy Williams
was informed by dispatch that Flores had two prior convictions for DWI. Deputy Williams then
took Flores to the medical center so that a blood sample could be taken from Flores pursuant to
section 724.012(b)(3)(B) of the Texas Transportation Code. Deputy Williams did not obtain a
warrant for the blood draw. It was later determined that Flores did not, in fact, have two prior
convictions for DWI.
This is the second time we have heard an appeal from a decision in the underlying cause.
In the first appeal, State v. Flores, 392 S.W.3d 229 (Tex. App.—San Antonio 2012, pet. ref’d), the
State appealed the trial court’s interlocutory order granting Flores’s first motion to suppress, which
had been based on a statutory violation of section 724.012(b)(3)(B). We reversed the trial court’s
order, holding that Flores had not met his burden of making a prima facie showing of a statutory
violation under section 724.012(b)(3)(B). On remand, Flores filed a second motion to suppress
based on the Supreme Court’s recent decision in McNeely, arguing that the mandatory blood draw
violated his rights under the Fourth Amendment.
On July 17, 2013, at the hearing on Flores’s second motion to suppress, the trial court took
judicial notice of the testimony that was provided in the first suppression hearing. Deputy Williams
then provided additional testimony. Deputy Williams testified that the normal business hours for
the Guadalupe County offices were 8:00 a.m. to 5:00 p.m. and that judges are not readily available
after hours. According to Deputy Williams, there must be “special circumstances” before an officer
can attempt to locate a judge outside of normal business hours, and “to do that, [the officer] ha[s]
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04-13-00754-CR
to go up [his] chain of command.” Deputy Williams testified that at that time, he would need to
contact and notify his supervisor, Sergeant Strauss, that he needed a warrant. Deputy Williams
testified that he did not attempt to obtain a warrant to authorize the blood draw on Flores. Deputy
Williams explained that he did not believe he needed a warrant under section 724.012(b)(3)(B).
On cross-examination, Deputy Williams confirmed that his department did, in fact, have
procedures for obtaining a warrant after normal business hours. After hearing all the evidence
presented, the trial court denied Flores’s second motion to suppress. Flores then pled guilty and
now appeals the denial of his pre-trial motion to suppress.
DISCUSSION
Flores argues that the warrantless blood draw performed on him violated his rights under
the Fourth Amendment to the Constitution. For support, Flores relies on the Supreme Court’s
decision in McNeely and this court’s decision in Weems v. State, 434 S.W.3d 655 (Tex. App.—
San Antonio 2014, pet. granted). 1 In Weems, 434 S.W.3d at 665, we analyzed McNeely and
concluded that section 724.12(b)(3)(B) does not constitute a valid exception to the Fourth
Amendment’s warrant requirement. The State recognizes the applicability of our holding in
Weems, but argues that we should reconsider our holding in Weems. We need not do so, however,
as the Texas Court of Criminal Appeals recently held in State v. Villarreal, No. PD-0306-14, 2014
WL 6734178, at *20 (Tex. Crim. App. Nov. 26, 2014), that “the provisions in the Transportation
Code do not, taken by themselves, form a constitutionally valid alternative to the Fourth
Amendment warrant requirement.” The court of criminal appeals explained that “the Supreme
Court’s holding in McNeely makes clear that drawing the blood of an individual suspected of DWI
falls under the category of cases holding that ‘a warrantless search of a person is reasonable only
1
When the trial court held its hearing on Flores’s second suppression motion, it did not have the benefit of this court’s
decision in Weems.
-3-
04-13-00754-CR
if it falls within a recognized exception’ to the warrant requirement.” Villarreal, 2014 WL
6734178, at *20 (quoting McNeely, 133 S. Ct. at 1558) (emphasis added). The court of criminal
appeals emphasized that the McNeely Court “explained that such an intrusion implicates an
individual’s ‘most personal and deep-rooted expectations of privacy.’” Villarreal, 2014 WL
6734178, at *20 (quoting McNeely, 133 S. Ct. at 1558). According to the court of criminal appeals,
“[t]hese principles from McNeely—the recognition of the substantial privacy interests at stake and
the applicability of the traditional Fourth Amendment framework that requires either a warrant or
an applicable exception—apply with equal force to this case.” Villarreal, 2014 WL 6734178, at
*20. Thus, the court of criminal appeals “reject[ed] the State’s assertion that a warrantless,
nonconsensual blood draw conducted pursuant to those provisions [of the Transportation Code]
can fall under one of the established exceptions to the warrant requirement.” Id. The court of
criminal appeals further “reject[ed] the State’s suggestion that such a search may be upheld under
a general Fourth Amendment balancing test.” Id.
Alternatively, the State argues that a recognized exception to the Fourth Amendment’s
warrant requirement applies in this case—exigent circumstances. The State points to the testimony
of Deputy Williams that the traffic stop occurred after normal business hours and that before
requesting a warrant, Deputy Williams would have to go up his chain of command, which began
with Sergeant Strauss. We disagree with the State that this record supports exigent circumstances.
Exigent circumstances “applies when the exigencies of the situation make the needs of law
enforcement so compelling that a warrantless search is objectively reasonable under the Fourth
Amendment.” McNeely, 133 S. Ct. at 1558. The State had the burden below to prove the
warrantless search was reasonable pursuant to the exigent circumstances exception under the
totality of the circumstances. See Amador v. State, 275 S.W.3d 872 (Tex. Crim. App. 2009);
Gutierrez v. State, 221 S.W.3d 680, 686 (Tex. Crim. App. 2007).
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04-13-00754-CR
The only evidence presented at the hearing was from Deputy Williams, who confirmed that
his department did, in fact, have procedures for obtaining a warrant after normal business hours.
His knowledge on these procedures was limited. Deputy Williams knew that he had to contact his
supervisor, but did not know what occurred after he did so. Deputy Williams testified he made no
attempt to secure such a warrant by following these procedures. Thus, this record is limited in its
testimony regarding “procedures in place for obtaining a warrant or the availability of a magistrate
judge.” McNeely, 133 S. Ct. at 1568. It also does not reflect “the practical problems of obtaining a
warrant within a timeframe that still preserves the opportunity to obtain reliable evidence.” Id. We
therefore conclude that this record does not show that under the totality of the circumstances, the
warrantless blood draw was justified by the exigent circumstances exception to the Fourth
Amendment’s warrant requirement. See Weems, 434 S.W.3d at 666.
As the State did not show that the warrantless blood draw was reasonable under the Fourth
Amendment, Flores’s second motion to suppress should have been granted. After the trial court
denied Flores’s second motion to suppress, he decided to plead guilty. We cannot determine
beyond a reasonable doubt that the trial court’s failure to grant his motion to suppress did not
contribute in some measure to the State’s leverage in obtaining Flores’s guilty plea and thus to
Flores’s conviction. See TEX. R. APP. P. 44.2(a); Kennedy v. State, 338 S.W.3d 84, 102-03 (Tex.
App.—Austin 2011, no pet.).
Finally, the State argues that even if we hold that Flores’s rights under the Fourth
Amendment were violated by the warrantless, nonconsensual blood draw, the Texas exclusionary
rule as enunciated in article 38.23(a) should not apply. According to the State, the blood draw was
not taken “in violation” of law. See TEX. CODE OF CRIM. PROC. ANN. art. 38.23(a) (West 2005)
(“No evidence obtained by an officer or other person in violation of any provisions of the
Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of
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04-13-00754-CR
America, shall be admitted in evidence against the accused on the trial of any criminal case.”). The
State argues that “it is indisputable that the state of the law on November 3, 2009, was that
warrantless blood draws made pursuant to section 724.012(b)(3)(B) were permissible and was not
seized in violation of the law as it was understood on that day.” We disagree with the State. Section
724.012(b)(3)(B) does not explicitly authorize a warrantless search. Weems, 434 S.W.3d at 666;
see also McNeil v. State, 443 S.W.3d 295, 303 (Tex. App.—San Antonio 2014, pet. filed). It “does
not address or purport to dispense with the Fourth Amendment’s warrant requirement for blood
draws.” Weems, 434 S.W.3d at 666 (citation omitted). In responding “to the contention that the
Legislature has clearly indicated its desire to create a new exception to the warrant requirement,”
the Texas Court of Criminal Appeals observed in Villarreal, 2014 WL 6734178, at *19, that the
statutory language contained within the provisions in the Texas Transportation Code “is silent as
to whether a law-enforcement officer conducting a mandatory, nonconsensual search of a DWI
suspect’s blood is required to first seek a warrant.” Further, warrantless seizures have always been
impermissible under the Fourth Amendment unless founded on a recognized exception. See United
States v. Robinson, 414 U.S. 518, 224 (1973). In Villarreal, 2014 WL 6734178, at *19, the court
of criminal appeals emphasized that the Texas Legislature “may not restrict guaranteed rights set
out in constitutional provisions.” According to the court of criminal appeals, “[t]o the extent the
mandatory-blood-draw statute may be interpreted as authorizing a warrantless search that would
violate a defendant’s rights under the Fourth Amendment, it cannot do so.” Id.
The State also argues the Texas exclusionary rule and federal exclusionary rule should not
apply because the officer relied on section 724.012(b)(3)(B) in good faith. We rejected this
argument in Weems and in subsequent cases. See Weems, 434 S.W.3d at 666-67; see also McNeil,
443 S.W.3d at 303; Fitzgerald v. State, No. 04-13-00662-CR, 2014 WL 3747270, at *2 (Tex.
App.—San Antonio July 30, 2014, pet. filed).
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04-13-00754-CR
CONCLUSION
Because the warrantless blood draw violated Flores’s rights under the Fourth Amendment,
his second motion to suppress should have been granted. We thus reverse the judgment of the trial
court and remand for a new trial.
Karen Angelini, Justice
Do not publish
-7-
Fourth Court of Appeals
San Antonio, Texas
JUDGMENT
No. 04-13-00754-CR
Jose Angel FLORES Jr.,
Appellant
v.
The STATE of Texas,
Appellee
From the County Court at Law No. 2, Guadalupe County, Texas
Trial Court No. CCL-10-0869
Honorable Frank Follis, Judge Presiding
BEFORE CHIEF JUSTICE STONE, JUSTICE ANGELINI, AND JUSTICE MARTINEZ
In accordance with this court’s opinion of this date, the judgment of the trial court is
REVERSED and this cause is REMANDED to the trial court for a new trial.
SIGNED December 17, 2014.
_____________________________
Karen Angelini, Justice
1
1 REPORTER'S RECORD
2 VOLUME 1 OF 5 VOLUMES
3 TRIAL COURT CAUSE NO. CCL-10-0869
4 COURT OF APPEALS NO. 04-13-00754-CR
5
)
6 THE STATE OF TEXAS, ) IN THE COUNTY COURT
)
7 )
Plaintiffs )
8 )
VS. ) AT LAW NO. 2
9 )
)
10 JOSE ANGEL FLORES, JR. )
)
11 )
)
12 Defendants ) GUADALUPE COUNTY, TEXAS
13
14 ------------------------------
15 MASTER INDEX
16 ------------------------------
17
18 On the 6th day of April, 2011; 17th day of July,
19 2013; 23rd day of September, 2013; and 24th day of
20 October, 2013, the following proceedings came on to be
21 heard in the above-entitled and numbered cause before
22 the Honorable Frank Follis, Judge presiding, held in
23 Seguin, Guadalupe County, Texas.
24
25 Proceedings reported by machine shorthand.
County Court at Law No. 2
211 W. Court Street, Ste. 338
Phone (830) 303-4188 ext. 209 Fax (830) 303-0283
2
1 A P P E A R A N C E S
2
3 FOR THE STATE:
4 MR. JONATHAN MICHELL
SBOT NO. 24058610
5 ASSISTANT COUNTY ATTORNEY
211 W. COURT STREET
6 SEGUIN, TEXAS 78155
(830) 303-6130
7
AND
8
MR. JOE BUITRON
9 SBOT NO. 24053117
ASSISTANT COUNTY ATTORNEY
10 211 W. COURT STREET
SEGUIN, TEXAS 78155
11 (830) 303-6130
12
13 FOR THE DEFENDANT:
14 MR. W. DAVID FRIESENHAHN
SBOT NO. 07476350
15 LAW OFFICES OF W. DAVID FRIESENHAHN
314 N. AUSTIN STREET
16 SEGUIN, TEXAS 78155
(830) 372-2722
17
18
19
20
21
22
23
24
25
County Court at Law No. 2
211 W. Court Street, Ste. 338
Phone (830) 303-4188 ext. 209 Fax (830) 303-0283
3
1 MASTER CHRONOLOGICAL INDEX
2 VOLUME 1
(MASTER INDEX)
3 Page Vol.
4 April 6, 2011
5 July 17, 2013
6 September 23, 2013
7 October 24, 2013
8
9 Court Reporter's Certificate............ 6 1
10
11 VOLUME 2
(MOTIONS)
12 Page Vol.
13 APRIL 6, 2011
14 Announcements........................... 4 2
15 Opening Statement by Mr. Michell........ 4 2
Opening Statement by Mr. Friesenhahn.... 4 2
16
17 STATE'S WITNESSES
Direct Cross Voir Dire Page Vol.
18 Deputy Robert Williams 5,23 19,24 2
19 State rests............................ 24 2
20 DEFENDANT'S WITNESSES
Direct Cross Voir Dire Page Vol.
21 None
22 Defendant rests........................ 24 2
23 Both Sides close....................... 24 2
24 Closing Arguments by Mr. Friesenhahn... 26 2
Closing Arguments by Mr. Michell....... 26 2
25
County Court at Law No. 2
211 W. Court Street, Ste. 338
Phone (830) 303-4188 ext. 209 Fax (830) 303-0283
4
1 Verdict................................ 28 2
2 Adjournment............................ 28 2
3 Court Reporter's Certificate........... 29 2
4
VOLUME 3
5 (MOTIONS)
6 JULY 17, 2013
7 Announcements........................... 4 3
8 Opening Statement by Mr. Buitron........ 4 3
Opening Statement by Mr. Friesenhahn.... 4 3
9
10 STATE'S WITNESSES
Direct Cross Voir Dire Page Vol.
11 Deputy Robert Williams 5 8 3
12 State rests............................ 9 3
13 DEFENDANT'S WITNESSES
Direct Cross Voir Dire Page Vol.
14 None
15 Defendant rests........................ 9 3
16 Both Sides close....................... 9 3
17 Closing Arguments by Mr. Friesenhahn... 9 3
Closing Arguments by Mr. Buitron....... 10 3
18
Verdict................................ 13 3
19
Adjournment............................ 13 3
20
Court Reporter's Certificate........... 14 3
21
22 VOLUME 4
(PLEA)
23 Page Vol.
24 September 23, 2013
25 Court Reporter's Certificate........... 6 4
County Court at Law No. 2
211 W. Court Street, Ste. 338
Phone (830) 303-4188 ext. 209 Fax (830) 303-0283
5
1 VOLUME 5
(PUNISHMENT)
2
Page Vol.
3
OCTOBER 24, 2013
4
Court Reporter's Certificate........... 7 5
5
6 CHRONOLOGICAL WITNESS INDEX
7 Direct Cross Page Vol.
8 DEPUTY ROBERT WILLIAMS 5,23 19,24 2
9 DEPUTY ROBERT WILLIAMS 5 8 3
10
ALPHABETICAL WITNESS INDEX
11
12 Direct Cross Page Vol.
13 DEPUTY ROBERT WILLIAMS 5,23 19,24 2
14 DEPUTY ROBERT WILLIAMS 5 8 3
15
16
17
18
19
20
21
22
23
24
25
County Court at Law No. 2
211 W. Court Street, Ste. 338
Phone (830) 303-4188 ext. 209 Fax (830) 303-0283
6
1 REPORTER'S CERTIFICATE
2 THE STATE OF TEXAS )
COUNTY OF GUADALUPE )
3
4 I, Stacey B. Sharron, Official Court Reporter in and
5 for the County Court at Law No. 2 of Guadalupe County,
6 State of Texas, do hereby certify that the above and
7 foregoing contains a true and correct transcription of
8 all portions of evidence and other proceedings requested
9 in writing by counsel for the parties to be included in
10 this volume of the Reporter's Record, in the
11 above-styled and numbered cause, all of which occurred
12 in open court or in chambers and were reported by me.
13 I further certify that this Reporter's Record of the
14 proceedings truly and correctly reflects the exhibits,
15 if any, admitted by the respective parties.
16 I further certify that the total cost for the
17 preparation of this Reporter's Record is $395.92 and was
18 paid by Guadalupe County.
19 WITNESS MY OFFICIAL HAND this 20th day of February,
20 2014.
21
22 ___________________________
Stacey B. Sharron, Texas CSR 7743
23 Expiration Date: 12/31/2015
Official Court Reporter
24 County Court at Law No. 2
Guadalupe County, Texas
25 Seguin, Texas 78155
County Court at Law No. 2
211 W. Court Street, Ste. 338
Phone (830) 303-4188 ext. 209 Fax (830) 303-0283
1
1 REPORTER'S RECORD
2 VOLUME 2 OF 5 VOLUMES
3 TRIAL COURT CAUSE NO. CCL-10-0869
4 COURT OF APPEALS NO. 04-13-00754-CR
5
)
6 THE STATE OF TEXAS, ) IN THE COUNTY COURT
)
7 )
Plaintiff )
8 )
VS. ) AT LAW NO. 2
9 )
)
10 JOSE ANGEL FLORES, JR. )
)
11 )
)
12 Defendant ) GUADALUPE COUNTY, TEXAS
13
14
15 ------------------------------
16 MOTIONS
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18
19 On the 6th day of April, 2011, the following
20 proceedings came on to be heard in the above-entitled
21 and numbered cause before the Honorable Frank Follis,
22 Judge presiding, held in Seguin, Guadalupe County,
23 Texas;
24
25 Proceedings reported by machine shorthand.
County Court at Law No. 2
211 W. Court Street, Ste. 338
Phone (830) 303-4188 ext. 209 Fax (830) 303-0283
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1 A P P E A R A N C E S
2
3 FOR THE STATE:
4 MR. JONATHAN MICHELL
SBOT NO. 24058610
5 ASSISTANT COUNTY ATTORNEY
211 W. COURT STREET
6 SEGUIN, TEXAS 78155
(830) 303-6130
7
8
9 FOR THE DEFENDANT:
10 MR. W. DAVID FRIESENHAHN
SBOT NO. 07476350
11 LAW OFFICES OF W. DAVID FRIESENHAHN
314 N. AUSTIN STREET
12 SEGUIN, TEXAS 78155
(830) 372-2722
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County Court at Law No. 2
211 W. Court Street, Ste. 338
Phone (830) 303-4188 ext. 209 Fax (830) 303-0283
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1 I N D E X
2 VOLUME 1
3 (MOTIONS)
4
5 Page Vol.
6 APRIL 6, 2011
7 Announcements........................... 4 2
8 Opening Statement by Mr. Michell........ 4 2
Opening Statement by Mr. Friesenhahn.... 4 2
9
10 STATE'S WITNESSES
Direct Cross Voir Dire Page Vol.
11 Deputy Robert Williams 5,23 19,24 2
12 State rests............................ 24 2
13 DEFENDANT'S WITNESSES
Direct Cross Voir Dire Page Vol.
14 None
15 Defendant rests........................ 24 2
16 Both Sides close....................... 24 2
17 Closing Arguments by Mr. Friesenhahn... 26 2
Closing Arguments by Mr. Michell....... 26 2
18
19 Verdict................................ 28 2
20 Adjournment............................ 28 2
21 Court Reporter's Certificate........... 29 2
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County Court at Law No. 2
211 W. Court Street, Ste. 338
Phone (830) 303-4188 ext. 209 Fax (830) 303-0283
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1 THE COURT: Is it Jose Angel Flores that has
2 a hearing.
3 MR. FRIESENHAHN: Yes, Judge.
4 MR. MICHELL: The State is ready, Judge.
02:21PM 5 THE COURT: Mr. Friesenhahn, you have filed
6 one motion entitled Motion to Suppress Evidence?
7 MR. FRIESENHAHN: Right.
8 THE COURT: You have also filed a Motion to
9 Suppress Evidence of Retrograde Extrapolation?
02:22PM 10 MR. FRIESENHAHN: That would carry to trial.
11 THE COURT: All right. So, is the Motion to
12 Suppress Evidence what we need to hear?
13 MR. FRIESENHAHN: Yes.
14 THE COURT: Are you prepared to go forward?
02:22PM 15 MR. FRIESENHAHN: Yes.
16 THE COURT: All right. Is the State ready?
17 MR. MICHELL: Yes, sir.
18 THE COURT: How are we going to proceed?
19 MR. MICHELL: Judge, I will stipulate to a
02:22PM 20 warrantless arrest of this defendant. With regard to the
21 blood evidence that was obtained, I think the purpose of
22 this hearing is to determine whether it's initially
23 admissible at trial. I am not prepared to prove the
24 chain of custody, the toxicologist's ability to analyze
02:22PM 25 the blood, I'm just arguing the legality of the seizure
County Court at Law No. 2
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Phone (830) 303-4188 ext. 209 Fax (830) 303-0283
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1 in the first place.
2 MR. FRIESENHAHN: That is what our -- is --
3 THE COURT: All right. Are you prepared to
4 go forward?
5 MR. MICHELL: Yes, sir.
6 THE COURT: All right. Go ahead.
7 MR. MICHELL: The State calls Deputy
8 Williams.
9 THE COURT: Come right over here, please.
10 Raise your right hand. Have a seat in the chair, pull up
11 the chair so you can speak directly into the microphone.
12 Mr. Michell.
13 DEPUTY ROBERT WILLIAMS,
14 having been first duly sworn, testified as follows:
15 DIRECT EXAMINATION
16 BY MR. MICHELL:
17 Q. Deputy, can you state your name for the record?
18 A. Robert Williams.
19 Q. And what do you do for a living?
02:23PM 20 A. I'm a deputy sheriff with Guadalupe County
21 Sheriff's Department.
22 Q. Are you a certified peace officer?
23 A. Yes.
24 Q. And do you take courses each year to maintain
02:23PM 25 your certification?
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211 W. Court Street, Ste. 338
Phone (830) 303-4188 ext. 209 Fax (830) 303-0283
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1 A. Yes.
2 Q. And are you -- How long have you been a certified
3 peace officer?
4 A. I've been a peace officer for three years.
02:23PM 5 Q. Have you received training in administering field
6 sobriety tests?
7 A. Yes.
8 Q. And in DWI investigations?
9 A. Yes.
02:24PM 10 Q. I'm going to draw your attention to November 3rd
11 of 2009. Were you on duty that evening?
12 A. Yes.
13 Q. What were you doing?
14 A. I was patrolling on -- in my district, just
02:24PM 15 answering calls.
16 Q. Okay. Do you recall, at about 8 o'clock that
17 evening, receiving a call about a reckless driver in a
18 semi-truck?
19 A. Yes, I was advised that there was a reckless
02:24PM 20 driver on IH-10 by our dispatch. They gave a description
21 of the vehicle and advised another vehicle was following
22 behind it with his flashers on to identify it.
23 Q. Okay. And what did they say was reckless about
24 the vehicle's driving?
02:24PM 25 A. Dispatch advised me that the person that called
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Phone (830) 303-4188 ext. 209 Fax (830) 303-0283
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1 in, that called 911, said when they were speaking to the
2 driver of the other truck, they were both 18-wheelers,
3 when the -- when he spoke to that driver, he was slurring
4 his speech and just to him, he sounded like he was
02:25PM 5 intoxicated.
6 Q. Okay. Did they say whether they saw any bad
7 driving facts other than the slurred speech?
8 A. No.
9 Q. Okay. Did you -- which -- which highway were
02:25PM 10 they on?
11 A. Excuse me. They were headed on IH-10, Eastbound.
12 Q. Okay. Did you eventually catch up to the
13 18-wheeler that had its lights flashing?
14 A. Yeah, I was actually ahead of the vehicle. I was
02:25PM 15 near the 620, I believe, and they were calling about the
16 600-mile marker. So, I positioned my patrol unit and
17 waited for it to -- to come up.
18 Q. Okay. Did you eventually come into contact with
19 the semi-truck that the 911 caller was describing?
02:25PM 20 A. Yes.
21 Q. And what's the specific description of that
22 vehicle?
23 A. It would be a white 18-wheeler semi-cab and it
24 had a flatbed trailer with Tennessee plates.
02:26PM 25 Q. Okay. When you saw that vehicle, did you
County Court at Law No. 2
211 W. Court Street, Ste. 338
Phone (830) 303-4188 ext. 209 Fax (830) 303-0283
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1 personally observe any traffic violations?
2 A. Yes, I observed the driver of the vehicle was
3 driving on the improved shoulder and I also saw the
4 driver driving in-between both lanes of traffic, the
02:26PM 5 right, I'm sorry, the right lane and the center lane. He
6 was driving in the middle of it.
7 Q. Okay. Once you observed those traffic
8 violations, what did you do?
9 A. I waited until we had a good place to stop that
02:26PM 10 was safe and I activated my emergency lights and pulled
11 the vehicle over.
12 Q. Okay. Did you make contact with the driver?
13 A. Yeah, I went up to the driver's side of the door
14 where he, the driver, opened the cab and I identified
02:26PM 15 myself as a -- as a sheriff deputy and why I stopped him.
16 Q. Okay. Do you see the driver of that vehicle in
17 the courtroom this morning?
18 A. Yes, sir.
19 Q. Or this afternoon?
02:27PM 20 A. Yes, sir.
21 Q. Could you point to him and identify an article of
22 clothing that he's wearing?
23 A. It's the gentleman sitting over here on the left
24 in a black shirt (pointing).
02:27PM 25 MR. MICHELL: Your Honor, may the record
County Court at Law No. 2
211 W. Court Street, Ste. 338
Phone (830) 303-4188 ext. 209 Fax (830) 303-0283
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1 reflect the witness identified the defendant?
2 THE COURT: The record will so reflect.
3 Q. (BY MR. MICHELL:) Did you notice anything
4 unusual about the defendant when you were -- when you
02:27PM 5 made contact with him?
6 A. I smelled alcohol coming from the vehicle, as
7 soon as he opened the door. I also saw in his right hand
8 that he had a beer in his hand.
9 Q. Okay. Did you ask him to get out of the car?
02:27PM 10 A. Yeah, I asked him to -- to step out of the
11 vehicle. He wasn't, I believe he wasn't wearing a shirt.
12 So he -- he stood up and he said, "I want to grab a shirt
13 before I come out." So he stood up in his cab and walked
14 to the rear sleeping compartment and started kind of
02:27PM 15 rummaging around looking for his shirt and then his
16 paperwork.
17 Q. Other than not having the shirt on and smelling
18 of alcohol, did you notice anything else unusual about
19 the defendant?
02:28PM 20 A. He did have slurred speech. There was an open
21 container in his hand when I opened it. I could smell
22 alcohol coming from inside of the vehicle. I couldn't
23 determine at that time if it was him in person that had
24 it or smelled like it or the vehicle itself.
02:28PM 25 Q. Okay. Were you able to make that determination
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Phone (830) 303-4188 ext. 209 Fax (830) 303-0283
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1 at some point?
2 A. As soon as he stepped out of the cab and the door
3 was shut, I could still smell it emitting from his
4 breath.
02:28PM 5 Q. Okay. Once you saw those signs, what did you
6 decide to do?
7 A. At that time I asked him to step all the way to
8 the rear of the vehicle where my car and camera was
9 positioned closer and -- and asked him if he would submit
02:28PM 10 to a breathalyzer test -- I'm sorry, a field sobriety
11 test, excuse me.
12 Q. Okay. And are you -- you said you are certified
13 in administering those?
14 A. Yes.
02:28PM 15 Q. What did he say?
16 A. He advised me that he -- he wouldn't take -- he
17 wouldn't do the tests.
18 Q. Did you ask him if he had been drinking that
19 evening?
02:29PM 20 A. Yes.
21 Q. What did he say?
22 A. Two beers.
23 Q. Okay. And he refused all of the field sobriety
24 tests?
02:29PM 25 A. Yes.
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211 W. Court Street, Ste. 338
Phone (830) 303-4188 ext. 209 Fax (830) 303-0283
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1 Q. What did you do after he refused the other field
2 sobriety tests?
3 A. As soon as he advised that he wasn't going to
4 take any tests from all of the clues I had seen, talking
02:29PM 5 to him and inside of the vehicle, I placed him under
6 arrest for suspicion of driving while intoxicated and
7 transported him to the jail.
8 Q. When you say suspicion of driving while
9 intoxicated, did you believe you had probable cause to
02:29PM 10 arrest him?
11 A. Yes.
12 Q. Okay. What happened after -- what happened after
13 you arrested him?
14 A. While I was en route to the jail, I called
02:29PM 15 dispatch when I was getting toward their sally port and
16 asked them to run a background check on that individual
17 and dispatch came back that the subject had two prior
18 convictions for DWI.
19 Q. Okay. At some point, after you arrested him, did
02:30PM 20 you ask the defendant to provide a breath specimen?
21 A. Yes.
22 Q. And what did he say?
23 A. No. He advised no, I refuse everything.
24 Q. Okay. And your instructions when you have
02:30PM 25 reliable information from a credible source that somebody
County Court at Law No. 2
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Phone (830) 303-4188 ext. 209 Fax (830) 303-0283
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1 has two prior DWI convictions and they refuse a breath
2 test, what are you required to do?
3 A. Take a mandatory blood sample of the subject.
4 Q. Did you do that for this defendant?
02:30PM 5 A. Yes, he was transported to the Guadalupe County
6 or I'm sorry, Guadalupe Regional Medical Center, the GRMC
7 and I met with a licensed phlebotomist and did a blood
8 draw.
9 Q. Okay. Who transported him?
02:30PM 10 A. I transported him.
11 Q. Do you remember the name of the phlebotomist?
12 A. Diana, Diane, I think, was her first name. I --
13 I couldn't remember her last name.
14 Q. Okay. But you told them at the hospital what you
02:31PM 15 were there for?
16 A. Yes.
17 Q. Okay. When they got to the hosp -- when you got
18 to the hospital, were you present when the blood draw was
19 done on the defendant?
02:31PM 20 A. Yes, I -- I was there as -- along with Deputy
21 Wahlert.
22 Q. Okay. What was used to draw the blood from the
23 defendant?
24 A. We have basically a blood sample kit and we -- we
02:31PM 25 carry that with us or we can get it while we're at the
County Court at Law No. 2
211 W. Court Street, Ste. 338
Phone (830) 303-4188 ext. 209 Fax (830) 303-0283
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1 jail. I had one in the car with me so when we went to
2 the hospital, I grabbed it out of my trunk and brought it
3 in there with me and it's got two blood vials and it's
4 got some stuff to do, to -- to -- for chain of command or
02:32PM 5 chain of evidence and stuff like that. I handed it to
6 the phlebotomist and she used a needle and withdrew out
7 of his -- out of his arm, the blood.
8 Q. Okay. What happened to the blood once -- once
9 she drew it from the defendant?
02:32PM 10 A. As soon as she finishes drawing the blood, with
11 me still in the room, I take it, put it in a -- put it in
12 this little plastic protective thing. It's just an extra
13 little layer and then I put it back into the original
14 plastic container that's got some more padding on it and
02:32PM 15 I write down who I got it from, time, date, and then I
16 seal it in the -- in the box it comes in, the cardboard
17 box.
18 Q. Okay. And you said that dispatch told you, after
19 a background check request, that he had two prior
02:32PM 20 convictions for DWI?
21 A. Yes.
22 Q. Does the defendant, in fact, to your knowledge,
23 have two prior convictions for DWI?
24 A. I found out today or yesterday, I think is when I
02:33PM 25 got the subpoena, that he did not; I -- when I noticed it
County Court at Law No. 2
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Phone (830) 303-4188 ext. 209 Fax (830) 303-0283
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1 wasn't the -- the district attorney but the county
2 attorney.
3 Q. Okay. In your experience as a certified peace
4 officer, or when 911 -- or when your dispatcher gives you
02:33PM 5 that information, what -- what is the information coming
6 from? What system maintains that information?
7 A. They take that information from, I believe, it's
8 NCIC/TCIC database which keeps information on basically
9 anybody that's been arrested. It keeps all their
02:33PM 10 driver's license information, makes sure that they have
11 the -- the right to drive a vehicle.
12 Q. Okay. In your experience, as a certified peace
13 officer, do you find TCI information, TCIC information to
14 be reliable information?
02:33PM 15 A. Very reliable.
16 Q. In your experience, have you found the 911 -- or
17 the dispatchers with the sheriff's department to be
18 credible sources of information?
19 A. Yes, they -- they go through their own training
02:34PM 20 for that.
21 Q. Okay. Do you rely on dispatch information for
22 your safety?
23 A. Yes.
24 Q. Does it -- does it inform you whether or not the
02:34PM 25 suspect has a warrant that you come in contact with?
County Court at Law No. 2
211 W. Court Street, Ste. 338
Phone (830) 303-4188 ext. 209 Fax (830) 303-0283
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1 A. Yes.
2 Q. If somebody deliberately enters false information
3 into TCIC records, is that a criminal offense to your
4 knowledge?
02:34PM 5 A. Yes, that is a crime in the State of Texas.
6 Q. Are you aware of any source of information or
7 evidence in the State of Texas that is 100 percent
8 accurate without exception?
9 A. No.
02:34PM 10 Q. Was the clerk's office in Guadalupe County or any
11 other county in Texas open at the time you arrested the
12 defendant?
13 A. No, I believe it was, I can't remember what time
14 it was but it was -- it was well after night, well after
02:34PM 15 closing.
16 Q. At the time you made the arrest of the defendant,
17 did you believe the information you received was reliable
18 information from a credible source?
19 A. Yes.
02:35PM 20 MR. MICHELL: Judge, we have the blood
21 evidence. I'm prepared to admit it but in terms of his
22 legal admissibility, I'm not sure how the Court would
23 like to proceed.
24 THE COURT: What is the statutory authority
02:35PM 25 for a mandatory blood draw for a person who has two prior
County Court at Law No. 2
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Phone (830) 303-4188 ext. 209 Fax (830) 303-0283
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1 DWI's?
2 MR. MICHELL: May I approach, Your Honor?
3 THE COURT: Yes, sir. And Mr. Friesenhahn,
4 you're welcome to approach, too.
02:35PM 5 MR. FRIESENHAHN: He's probably going to
6 have the same thing I'm looking at.
7 THE COURT: Section 724.012 of the
8 Transportation Code. Is that what you're --
9 MR. MICHELL: Yes, sir, correct.
02:35PM 10 THE COURT: Is that what you're --
11 MR. FRIESENHAHN: Yes, that's what I've got.
12 THE COURT: I assume that you have some
13 objection to this, Mr. Friesenhahn?
14 MR. FRIESENHAHN: Oh, yes.
02:36PM 15 THE COURT: Well, I mean, that's obviously
16 going to be the question here. Is there a good faith
17 exception to -- to this rule that would apply here and
18 I've heard -- is there any other evidence that we need to
19 induce here? I mean, I'm not trying to cut you off. I'm
02:37PM 20 just saying we can get to the point of this if you want.
21 MR. FRIESENHAHN: Well, it depends on how
22 you're going to rule, Judge.
23 THE COURT: Well, I understand that.
24 MR. FRIESENHAHN: Well, I guess just to
02:37PM 25 anticipate the State's argument, they're, of course,
County Court at Law No. 2
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Phone (830) 303-4188 ext. 209 Fax (830) 303-0283
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1 saying that what the officer had out there from dispatch
2 qualified as possessing information of convictions from
3 a, that was credible, from a reliable -- well reliable
4 information from a credible source. Of course, if you
02:37PM 5 wanted to hear additional evidence on that, I can do
6 that; we would argue that that alone was not enough.
7 THE COURT: The statute says the officer
8 possesses or receives reliable information from a
9 credible source, in which case this is, the dispatcher is
02:37PM 10 getting information from the TCIC system.
11 MR. MICHELL: Which I would argue is a
12 credible source of information which judges use in
13 magistrating defendants, which is used to warn officers
14 that someone could be armed and dangerous, or a -- a sex
02:38PM 15 offender or someone who has a protective order.
16 THE COURT: Well, I don't have any argument
17 with that. And it's just a question what happens when
18 it's wrong? Is there a good faith exception to this
19 statute that allows an officer to do this even though it
02:38PM 20 turns out later he had no authority to do it.
21 MR. MICHELL: The statute is a
22 year-and-a-half old, Your Honor. I have not found any
23 good faith exception case law but I would argue that the
24 officer complied with the law. The statute clearly
02:38PM 25 instructs peace officers, when they are in possession of
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1 reliable information from a credible source, the officer
2 shall require the taking of a blood or breath specimen.
3 That's exactly what this officer did. He received
4 reliable information that turned out to be wrong but it
02:38PM 5 is reliable information, from a credible source, his
6 dispatcher, who is certified, as the officer testified,
7 and he did a blood draw. He complied with the
8 instructions in the statute.
9 THE COURT: Well, again, I will let you
02:39PM 10 induce further evidence if you wish but I will probably
11 take this matter under advisement.
12 MR. FRIESENHAHN: I will, I would like to,
13 when he rests, of course, I need to ask him questions on
14 that issue.
02:39PM 15 THE COURT: All right. Well, I don't think
16 we need to introduce the blood sample as this point --
17 MR. FRIESENHAHN: No, probably not.
18 THE COURT: -- if that's your question. So
19 we can go forward with that.
02:39PM 20 Q. (BY MR. MICHELL:) And you said you stopped the
21 defendant on Interstate Highway 10?
22 A. Yes.
23 Q. And is that a public highway?
24 A. Yes.
02:39PM 25 Q. Is that in Guadalupe County, Texas?
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1 A. Yes.
2 Q. And was that on November 3rd of 2009?
3 A. Yes.
4 Q. And you said you, you found an open container of
02:39PM 5 alcohol in his -- in his hand when he was in the car?
6 A. In his hand, yes.
7 Q. And what alcohol was that?
8 A. It was a 16-ounce beer can, I believe it was a
9 Bush can, just without looking at my notes.
02:40PM 10 MR. MICHELL: Pass the witness, Judge.
11 THE COURT: Mr. Friesenhahn.
12 CROSS-EXAMINATION
13 BY MR. FRIESENHAHN:
14 Q. Deputy, just a couple of two or three more
02:40PM 15 questions. When you were out there on the side of the
16 road, you met my client, you identified him as Jose
17 Flores; is that correct?
18 A. Yes.
19 Q. Okay. How long have you lived in Texas?
02:40PM 20 A. Approximately 16 years, 17 years.
21 Q. In the course of those 16 years, how many Jose
22 Flores' have you met?
23 A. Several.
24 Q. Okay. Pretty common name of someone who might
02:40PM 25 be -- an Anglo version might be John Smith, right?
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1 A. Yes.
2 Q. Okay. Now, after you arrested Jose, did you take
3 him to the jail?
4 A. I was en route to the jail. We were in the sally
02:40PM 5 port.
6 Q. Okay. Normally the procedure would be to take,
7 correct me if I'm wrong, to take somebody from the sally
8 port, take them to a room where there's an intoxilyzer,
9 read them a statutory warning videotape and give him the
02:41PM 10 opportunity at that point to refuse a test; correct?
11 A. Yes.
12 Q. Okay. And at the jail, there would have been
13 computers running where you could have run a TCIC search
14 if you had wanted to; correct?
02:41PM 15 A. No.
16 Q. Okay. Are you aware that any person off the
17 street can go online and run a -- open up an account with
18 DPS and run a TCIC for convictions?
19 A. My knowledge of it is limited of -- of how you
02:41PM 20 can gather the information, who can gather the
21 information but I know a lot of that is privileged
22 information.
23 Q. Okay. Is there some -- would there have been
24 somebody at the jail, at the sheriff's office who could
02:41PM 25 have run a rap sheet on Mr. Flores if you had booked him
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1 into the jail?
2 A. Our procedure is to go through our dispatchers.
3 Q. Okay. That's not the question. Would there have
4 been somebody available at the sheriff's office who could
02:42PM 5 verify or could have actually run a rap sheet that you
6 could have seen before you went and made a mandatory
7 blood draw?
8 A. Yes, there is.
9 Q. Let me give you a hypothetical. Let -- let's say
02:42PM 10 you stopped somebody for speeding on the side of the road
11 and it turns out that dispatch is telling you that and
12 this person has a common name, dispatch is telling you
13 this person has a warrant out for them. Is it common law
14 enforcement practice to then follow up once that person
02:42PM 15 is brought to the jail to verify that that is indeed the
16 right person who is wanted in the arrest warrant?
17 A. In -- in my past experience if, like we don't
18 have a driver's license number or an I.D. number, we can
19 use descriptive information, tattoos, size, build, just
02:43PM 20 other information like that as well to investigate what's
21 going on.
22 Q. But -- but basically what I'm gathering at, is
23 you're not required to simply rely on what dispatcher
24 tells you. You could take an additional step to verify
02:43PM 25 that somebody is really, really has convictions, is
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1 really the person in the arrest warrant, nothing like
2 that; right?
3 A. I cannot as a deputy.
4 Q. Would there have been somebody available at the
02:43PM 5 Guadalupe County Sheriff's office in that building that
6 could have done that for you?
7 A. Yes, the dispatchers.
8 Q. Did you ask Mr. Flores if he had ever been
9 convicted twice before for DWI?
02:43PM 10 A. I -- I don't remember.
11 Q. Okay. But if he had told you that, you certainly
12 would have noted it in your report?
13 A. I, believe so.
14 Q. Okay. And there's no such notation in your
02:43PM 15 report?
16 A. No.
17 Q. Okay. So, I just want to clarify, it's basically
18 your testimony today that the decision that you made to
19 do a mandatory blood draw was simply based on information
02:44PM 20 that you received from a dispatcher, not any hard written
21 evidence on, on a -- on paper, on a computer screen,
22 anything that you could have actually seen yourself?
23 A. Our policy I -- I don't know how to --
24 Q. Well, but I mean, I'm just trying to be -- I'm
02:44PM 25 just trying -- I'm not trying to cast blame officer. I'm
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1 just trying to figure out what you were relying on. And
2 it's your -- you're saying that you went simply on that
3 dispatch; right?
4 A. Our -- Yes. Our policy is to use our dispatchers
02:44PM 5 to gather that information. The deputies cannot access
6 the -- the patrol deputies, at that time, cannot access
7 that information by themselves. We have to go through
8 dispatch.
9 Q. Okay. But once you get to the -- to the jail, to
02:45PM 10 the sheriff's office, if there was any doubt in your mind
11 or any question, you could have said, could you please
12 ask someone there, can you please clarify whether this
13 person really does have convictions?
14 A. Yes.
02:45PM 15 Q. But you did not do that on this evening?
16 A. No.
17 MR. FRIESENHAHN: Okay. I'll pass the
18 witness.
19 REDIRECT EXAMINATION
02:45PM 20 BY MR. MICHELL:
21 Q. Deputy, at the time of the arrest of the
22 defendant, what were you told by the dispatcher?
23 A. He had two previous convictions for DWI.
24 Q. And you said, in your experience, your
02:45PM 25 dispatchers are credible --
County Court at Law No. 2
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Phone (830) 303-4188 ext. 209 Fax (830) 303-0283
24
1 A. Yes.
2 Q. -- sources of information?
3 A. Yes.
4 MR. MICHELL: Nothing further, Judge.
02:45PM 5 MR. FRIESENHAHN: One or two more questions.
6 RECROSS-EXAMINATION
7 BY MR. FRIESENHAHN:
8 Q. Have you ever received incorrect information from
9 a dispatcher?
02:45PM 10 A. In my experience, no, not since then.
11 Q. Have you ever heard of any officer receiving
12 incorrect information from a dispatcher?
13 A. Yes, sir.
14 Q. Okay. So, you would concede that that is
02:46PM 15 possible?
16 A. Yes.
17 MR. FRIESENHAHN: Okay. Pass the witness.
18 MR. MICHELL: Nothing further for this
19 witness, Judge.
02:46PM 20 THE COURT: Any objection?
21 MR. FRIESENHAHN: No.
22 THE COURT: All right. You're excused.
23 Thank you.
24 MR. MICHELL: State rests.
02:46PM 25 MR. FRIESENHAHN: We rest.
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1 THE COURT: Well, I'll take this under
2 advisement. Counsel, I would appreciate whatever you can
3 provide me. I think the question of whether the good
4 faith exception may exist in a case like this is
02:46PM 5 pertinent. It also is pertinent, for example, if a
6 person has evidence seized from him because of his
7 purported arrest on a warrant. At a hearing such as
8 this, the State is required to produce the warrant and
9 show that it's a valid warrant.
02:46PM 10 Here we have a circumstance where because of
11 purported convictions evidence was obtained; so, is it
12 similarly necessary for the State at this hearing to
13 produce evidence of those prior convictions in order to
14 back up that claim?
02:47PM 15 MR. FRIESENHAHN: I'd assume that you're
16 almost asking for a briefs hearing --
17 THE COURT: Briefs, whatever --
18 MR. FRIESENHAHN: -- final on that for us to
19 get something to you?
02:47PM 20 THE COURT: A couple of weeks.
21 MR. FRIESENHAHN: Okay.
22 THE COURT: And there may not be any case
23 law on this, that's why I'm making analogies to other
24 circumstances such as producing warrants; do you have to
02:47PM 25 produce some evidence of these prior convictions when
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26
1 called upon to do so by the defense in order to justify
2 this statutory exception?
3 MR. FRIESENHAHN: And Judge, not to -- we --
4 we all agree with the issue is here but just so I have a
02:47PM 5 proper record in case this case ever goes up on appeal,
6 that essentially our argument would be that, that the
7 officer did the blood draw in violation of Section
8 724.012 of the Texas Transportation Code in that he did
9 not have reliable information from a credible source in
02:47PM 10 his possession, that Mr. Flores, in fact, had two prior
11 convictions for driving while intoxicated.
12 THE COURT: Any argument, Mr. Michell?
13 MR. MICHELL: Well, Judge, I have submitted
14 two cases for the Court's consideration and I have
02:48PM 15 provided the counsel copies. Your Honor, under Garza v.
16 State, the Court of Criminal Appeals or the San Antonio
17 Court of Appeals held that courts are only obligated to
18 exclude evidence only when it violates the Fourth
19 Amendment under the United States Supreme Court's
02:48PM 20 interpretation.
21 Under Schmerber v. California, the United
22 States Supreme Court held that warrantless blood draws
23 done at the request of a police officer at a hospital by
24 a trained medical professional is not unconstitutional.
02:48PM 25 It doesn't violate the Fourth Amendment. It doesn't
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1 violate the Fifth Amendment.
2 So under Texas case law, the only issue for
3 the Court's consideration is independent state statutory
4 law and case law. And in this case, Your Honor, the
02:49PM 5 legislature is very clearly spelled out to peace
6 officers, "a peace officer shall require the taking of a
7 specimen of the person's breath or blood under any of the
8 following circumstances." And the facts just described
9 from this officer, at the time of the arrest, the officer
02:49PM 10 possesses or receives reliable information from a
11 credible source that the person has two prior convictions
12 for DWI. This is expressly why this statute is enacted
13 in the law for defendants who refuse to cooperate with
14 police officers.
02:49PM 15 The -- the analogy that the defense counsel
16 is making, well, once you got back to the jail and once
17 he'd been booked in, you could have maybe run another
18 CJIS check. That's not what the statute says, once you
19 get him back to jail, double check to make sure 911
02:49PM 20 dispatch is correct. The statute clearly states, at the
21 time of the arrest. The officer said, I believe it was
22 reliable information, it was from a credible source,
23 that's dispositive of this issue.
24 The United States Supreme Court says there's
02:50PM 25 nothing violative of the United States Constitution for
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1 this officer to have done what he did. So the only issue
2 before the Court is whether or not the officer complied
3 with the law as it is enacted by the State. I will
4 certainly try to find some case law but I believe this is
02:50PM 5 a novel, a novel situation before the court.
6 MR. FRIESENHAHN: Judge, I -- I would agree
7 that's really a Fourth Amendment issue of our motion
8 encompasses Chapter 38 of the Code of Criminal Procedure
9 which basically says that evidence has to be seized in
02:50PM 10 accordance with all the law, federal and state, and
11 that's why we're -- I agree this is a 724.012
12 transportation code issue. And we're really begging the
13 question here, what constitutes reliable evidence from a
14 credible source? And if you would allow me to continue
02:50PM 15 my argument in a form of a brief, I can get you something
16 in the next two weeks.
17 THE COURT: All right. That's fine, thank
18 you, counsel.
19 We'll be in recess until ten minutes after
20 3:00.
21 (Hearing is taken under advisement and we're
22 in recess.)
23
24
25
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1 REPORTER'S CERTIFICATE
2 THE STATE OF TEXAS )
COUNTY OF GUADALUPE )
3
4 I, Stacey B. Sharron, Official Court Reporter in
5 and for the County Court at Law No. 2 of Guadalupe
6 County, State of Texas, do hereby certify that the above
7 and foregoing contains a true and correct transcription
8 of all portions of evidence and other proceedings
9 requested in writing by counsel for the parties to be
10 included in this volume of the Reporter's Record, in the
11 above-styled and numbered cause, all of which occurred
12 in open court or in chambers and were reported by me.
13 I further certify that this Reporter's Record of
14 the proceedings truly and correctly reflects the
15 exhibits, if any, admitted by the respective parties.
16 I further certify that the total cost for the
17 preparation of this Reporter's Record is $__________ and
18 was paid by ____________________.
19 WITNESS MY OFFICIAL HAND this the __________ day of
20 ____________________, 2011.
21
22 ___________________________
Stacey B. Sharron, CSR 7743, RPR
23 Expiration Date: 12/31/2011
Official Court Reporter
24 County Court at Law No. 2
Guadalupe County, Texas
25 Seguin, Texas
County Court at Law No. 2
211 W. Court Street, Ste. 338
Phone (830) 303-4188 ext. 209 Fax (830) 303-0283
1
1 REPORTER'S RECORD
2 VOLUME 3 OF 5 VOLUMES
3 TRIAL COURT CAUSE NO. CCL-10-0869
4 COURT OF APPEALS NO. 04-13-00754-CR
5
)
6 THE STATE OF TEXAS, ) IN THE COUNTY COURT
)
7 )
Plaintiffs )
8 )
VS. ) AT LAW NO. 2
9 )
)
10 JOSE ANGEL FLORES, JR. )
)
11 )
)
12 Defendants ) GUADALUPE COUNTY, TEXAS
13
14
15 ------------------------------
16 MOTIONS
17 ------------------------------
18
19 On the 17th day of July, 2013, the following
20 proceedings came on to be heard in the above-entitled
21 and numbered cause before the Honorable Frank Follis,
22 Judge presiding, held in Seguin, Guadalupe County,
23 Texas;
24
25 Proceedings reported by machine shorthand.
County Court at Law No. 2
211 W. Court Street, Ste. 338
Phone (830) 303-4188 ext. 209 Fax (830) 303-0283
2
1 A P P E A R A N C E S
2
3 FOR THE STATE:
4 MR. JOE BUITRON
SBOT NO. 24053117
5 ASSISTANT COUNTY ATTORNEY
211 W. COURT STREET
6 SEGUIN, TEXAS 78155
(830) 303-6130
7
8
9 FOR THE DEFENDANT:
10 MR. W. DAVID FRIESENHAHN
SBOT NO. 07476350
11 LAW OFFICES OF W. DAVID FRIESENHAHN
314 N. AUSTIN STREET
12 SEGUIN, TEXAS 78155
(830) 372-2722
13
14
15
16
17
18
19
20
21
22
23
24
25
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1 I N D E X
2 VOLUME
3 (MOTIONS)
4
5 Page Vol.
6 JULY 17, 2013
7 Announcements........................... 4 3
8 Opening Statement by Mr. Buitron........ 4 3
Opening Statement by Mr. Friesenhahn.... 4 3
9
10 STATE'S WITNESSES
Direct Cross Voir Dire Page Vol.
11
Deputy Robert Williams 5 8 3
12
State rests............................ 9 3
13
DEFENDANT'S WITNESSES
14 Direct Cross Voir Dire Page Vol.
15 None
16 Defendant rests........................ 9 3
17 Both Sides close....................... 9 3
18 Closing Arguments by Mr. Friesenhahn... 9 3
Closing Arguments by Mr. Buitron....... 10 3
19
Verdict................................ 13 3
20
Adjournment............................ 13 3
21
Court Reporter's Certificate........... 14 3
22
23
24
25
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Phone (830) 303-4188 ext. 209 Fax (830) 303-0283
4
1 THE COURT: All right. Jose Angel Flores.
2 MR. FRIESENHAHN: And Judge, just by way of
3 background, this is -- we already had a suppression
4 hearing once in this case on the issue of whether the
10:58AM 5 officer had substantially complied with the mandatory
6 blood draw statute. This was the case where the officer
7 said he later found out that there were not two prior
8 convictions.
9 THE COURT: Yes.
10:58AM 10 MR. FRIESENHAHN: And so then the Court of
11 Appeals came back down. We're here today on a Missouri
12 v. McNeely motion.
13 THE COURT: All right. Are you ready to
14 proceed?
10:58AM 15 MR. FRIESENHAHN: We are Judge.
16 MR. BUITRON: Yes, yes, Your Honor. We just
17 ask that the State (sic) take judicial notice of the
18 testimony that was provided in the first suppression
19 hearing.
10:58AM 20 THE COURT: All right, sir. I'll take
21 notice of that. And Mr. Friesenhahn, what do you have to
22 offer?
23 MR. FRIESENHAHN: Judge, I -- I think we --
24 we would, again, ask you to take judicial notice of that.
10:59AM 25 I think the State wanted to recall the officer for one or
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1 two questions if I was --
2 THE COURT: All right. That's fine. Go
3 ahead.
4 MR. BUITRON: Yes, sir. Deputy williams.
10:59AM 5 State calls Deputy Williams.
6 THE COURT: All right. Come right over
7 here, please. All right. Have a seat in the chair and
8 speak right into the microphone.
9 THE WITNESS: Yes, sir.
10:59AM 10 DIRECT EXAMINATION
11 BY MR. BUITRON:
12 Q. Please state your name for the record.
13 A. Robert Williams.
14 Q. And are you the same Robert Williams who
10:59AM 15 testified at a hearing regarding this case on April 6,
16 2011?
17 A. Yes, sir.
18 Q. Do you know what day it was when you stopped
19 Mr. Flores?
10:59AM 20 A. November 3rd, 2009.
21 Q. And do you know whether it was a Monday, Tuesday,
22 Wednesday, or Thursday?
23 A. No, sir, I don't recall.
24 Q. All right. Do you know what -- what the time of
11:00AM 25 day it was when you stopped Mr. Flores?
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1 A. It was, I believe, 8 o'clock in the evening.
2 Q. Okay. Exactly when were you informed that
3 Mr. Flores had two prior convictions for driving while
4 intoxicated?
11:00AM 5 A. I had already arrested the individual and I
6 believe I was on my way to the jail or I was in the jail
7 when I was notified that he'd been arrested for two prior
8 convictions of DWI.
9 Q. It was after any investigation that you did at
11:00AM 10 the scene?
11 A. Yes.
12 Q. On the road?
13 A. Yes, sir.
14 Q. How much time had elapsed from when you initially
11:00AM 15 stopped him to -- to you -- you got to the jail?
16 A. Less than an hour.
17 Q. Did you read Mr. Flores the DIC 24 and request --
18 A. Yes.
19 Q. And did you request a sample of his breath?
11:01AM 20 A. Yes, I did.
21 Q. And do you know approximately what time it was
22 when you did that?
23 A. I think my stop was about maybe 8:00, 8:30 and
24 then when I got to the jail it had been about maybe an
11:01AM 25 hour in full; so it was right after I got to the jail
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7
1 that I started reading him the DIC 24.
2 Q. Okay. So approximately what time do you think it
3 might have been?
4 A. Probably about 9:00, 9:30.
11:01AM 5 Q. Are you aware of the normal business hours for
6 Guadalupe County offices?
7 A. Yes, sir.
8 Q. What are those normal business hours?
9 A. 8:00 to 5:00.
11:01AM 10 Q. Are -- are you aware of normal business hours for
11 the judges that work here in Guadalupe County?
12 A. Same, same business hours, 8:00 to 5:00.
13 Q. Is it standard policy or standard practice for
14 peace officers to try and locate judges outside of those
11:02AM 15 business hours?
16 A. It has to be a special circumstance and to do
17 that -- to do that, I have to go up my chain of command.
18 Q. When you say go up your chain of command, what do
19 you mean? Can you describe that?
11:02AM 20 A. At that time my chain of command was to contact
21 my supervisor, Sergeant Strauss, and notify him if -- if
22 I needed a warrant and from there he can do what his --
23 his job is which I don't -- I'm not sure what his policy
24 on that is.
11:02AM 25 Q. Are you aware if there's any judges here in
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Phone (830) 303-4188 ext. 209 Fax (830) 303-0283
8
1 Guadalupe County that make themselves readily available
2 after business hours?
3 A. No.
4 Q. When Mr. -- After Mr. Flores refused to provide a
11:03AM 5 sample of his breath, did you attempt to obtain a
6 warrant?
7 A. No, I did not.
8 Q. Why?
9 A. I did not need one. I had -- was -- The Texas
11:03AM 10 law, at that time, stated that I did not need a warrant
11 to get a blood draw because he had two previous
12 convictions under DWI statutes.
13 Q. And just to be clear this law that we're talking
14 about, is this in the transportation code?
11:03AM 15 A. Yes, sir.
16 Q. And is it Section 724.012?
17 A. Yes, sir.
18 Q. Subsection B?
19 A. Yes, sir, I believe it is.
11:03AM 20 Q. Okay.
21 MR. BUITRON: Nothing further, Your Honor.
22 CROSS-EXAMINATION
23 BY MR. FRIESENHAHN:
24 Q. Deputy, just a couple two or three follow-up
11:03AM 25 questions. Just to make clear on that evening after you
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9
1 arrested Mr. Flores, you never tried to obtain a search
2 warrant in order to get a sample of Mr. Flores' blood so
3 that it could be analyzed for alcohol content?
4 A. No, sir, because of the law that stated I didn't
11:04AM 5 need to.
6 Q. And that was going to be my next question.
7 Because you thought you were acting in compliance with
8 state law at the time; correct?
9 A. I knew I was.
11:04AM 10 Q. Okay. And your -- your department does, in fact,
11 have procedures for trying to obtain a warrant after
12 normal business hours but it would entail your going up
13 your chain of command; correct?
14 A. Yes, sir.
11:04AM 15 MR. FRIESENHAHN: Pass the witness.
16 MR. BUITRON: Nothing further, Your Honor.
17 THE COURT: Anything further? Any evidence?
18 MR. BUITRON: No evidence by the State, Your
19 Honor.
11:04AM 20 MR. FRIESENHAHN: None from us, Your Honor.
21 THE COURT: All right. Officer, thank you.
22 Step down, please.
23 Any argument, Mr. Friesenhahn?
24 MR. FRIESENHAHN: Yes, Judge. I think the
11:04AM 25 -- the blood test results in this case have to be
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Phone (830) 303-4188 ext. 209 Fax (830) 303-0283
10
1 suppressed under Missouri v. McNeely 133 S. Ct. 1552 cited
2 earlier this year. In that case the U.S. Supreme Court
3 said that in a DWI case where law enforcement is getting
4 a blood draw for the purposes of analysis for alcohol or
11:05AM 5 drugs, they may first obtain a search warrant absent some
6 very peculiar circumstances. The mere fact that a
7 person's alcohol concentration may be dissipating in the
8 blood stream is not in and of itself an extingent (sic)
9 circumstance.
11:05AM 10 In this case, this is a, based on the
11 testimony at a prior suppression hearing, this was a
12 routine traffic stop and a DWI arrest. He took
13 Mr. Flores to the jail. So he would have had the ability
14 to contact other officers and make an attempt to go up
11:05AM 15 his chain of his command and obtain a warrant. There was
16 a procedure in place for trying to do that. He did not
17 even make an attempt for the reason he stated at the time
18 thought he was complying with state law. So no attempt
19 was made to secure a warrant; there was no warrant.
11:06AM 20 There were procedures in place that could have been used
21 to obtain a warrant and they weren't used.
22 And for those reasons, we would ask that you
23 suppress the blood test results based on McNeely.
24 THE COURT: Mr. Buitron?
11:06AM 25 MR. BUITRON: Your Honor, the State would
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211 W. Court Street, Ste. 338
Phone (830) 303-4188 ext. 209 Fax (830) 303-0283
11
1 argue that Missouri v. McNeely does not matter in this
2 particular instance because he was relying on the
3 transportation code statute which is in three specific
4 enumerated reasons as to when you do not need a warrant.
11:06AM 5 The McNeely case did not address those specific
6 instances. The only instance the McNeely case addressed
7 was when the only reason that a warrant was not -- that
8 an officer did not go to obtain a warrant is simply
9 because the -- the blood was going to be dissipated and
11:06AM 10 metabolized naturally in -- or the alcohol was going to
11 be metabolized naturally throughout the blood and that
12 was the only reason. There is a footnote where the Texas
13 statute is cited and in that footnote there was no
14 indication that there was something wrong or -- or
11:07AM 15 invalid or unconstitutional about those statutes.
16 In addition, it would have taken a long time
17 to go get this warrant. There weren't any judges readily
18 available in order to get the chain of command that would
19 have taken extra time. Mr. Friesenhahn suggested that
11:07AM 20 only under peculiar circumstances could a warrant be
21 bypassed but the McNeely case did not suggest that. In
22 fact, the holding in the McNeely case suggested that the
23 California v. Schmerber case that suggested a totality of
24 the circumstances should be used in a case by case basis.
11:07AM 25 That -- that is still good law. And for that reason, the
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Phone (830) 303-4188 ext. 209 Fax (830) 303-0283
12
1 State would argue that the motion to suppress be denied.
2 MR. FRIESENHAHN: I would just respond in
3 two ways, Judge. I'm aware of the footnote to which
4 counsel refers. Basically, there's a footnote in McNeely
11:08AM 5 in which one of the justices states -- points to the
6 Texas statute as an example that in some circumstances
7 there may be, in fact, extingent (sic) circumstances to
8 prevent the securing of a warrant. But that -- You have
9 to remember, the Texas Transportation Code demands for a
11:08AM 10 blood draw statute. Most provisions have to do with
11 situations where there is somebody injured, there's a
12 traffic accident, things of that nature.
13 Here we have a situation where an officer's
14 been informed that somebody simply has two prior
11:08AM 15 convictions. That in and of itself doesn't create an
16 emergency or extingency (sic) that would obligate the
17 warrant requirement. And the -- the court did not go
18 into detail because it did not have the statute in front
19 of it as to whether the transportation code was
11:08AM 20 constitutional or not in any respect. It simply said you
21 have to have a warrant absent unusual circumstances.
22 Even though it would have taken additional time to get a
23 warrant, well that's the whole point of McNeely; the
24 State tried to argue that. If we try to go get a warrant
11:09AM 25 for Mr. McNeely (sic) it would have taken extra time.
County Court at Law No. 2
211 W. Court Street, Ste. 338
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1 But the Supreme Court says that's not a good enough
2 excuse; you still have to go and make an attempt. So in
3 this case, again, there was a process set up that could
4 have been used to obtain a warrant even though the
11:09AM 5 officer thought he was complying with state statute. The
6 real question here is whether there is a genuine
7 extingency (sic) that would have prevented the securing
8 of a warrant. There wasn't. It was a plain vanilla
9 traffic stop. And so we think you have to suppress the
11:09AM 10 blood.
11 THE COURT: The Motion to Suppress Blood
12 Test and Blood Test Results pursuant to Missouri v.
13 McNeely is denied.
14
11:10AM 15 (Motions hearing is concluded.)
16
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25
County Court at Law No. 2
211 W. Court Street, Ste. 338
Phone (830) 303-4188 ext. 209 Fax (830) 303-0283
14
1 REPORTER'S CERTIFICATE
2 THE STATE OF TEXAS )
COUNTY OF GUADALUPE )
3
4 I, Stacey B. Sharron, Official Court Reporter in
5 and for the County Court at Law No. 2 of Guadalupe
6 County, State of Texas, do hereby certify that the above
7 and foregoing contains a true and correct transcription
8 of all portions of evidence and other proceedings
9 requested in writing by counsel for the parties to be
10 included in this volume of the Reporter's Record, in the
11 above-styled and numbered cause, all of which occurred
12 in open court or in chambers and were reported by me.
13 I further certify that this Reporter's Record of
14 the proceedings truly and correctly reflects the
15 exhibits, if any, admitted by the respective parties.
16 I further certify that the total cost for the
17 preparation of this Reporter's Record is $395.92 and was
18 paid by Guadalupe County.
19 WITNESS MY OFFICIAL HAND this 20th day of February,
20 2014.
21
22 ___________________________
Stacey B. Sharron, CSR 7743, RPR
23 Expiration Date: 12/31/2015
Official Court Reporter
24 County Court at Law No. 2
Guadalupe County, Texas
25 Seguin, Texas
County Court at Law No. 2
211 W. Court Street, Ste. 338
Phone (830) 303-4188 ext. 209 Fax (830) 303-0283
1
1 REPORTER'S RECORD
2 VOLUME 4 OF 5 VOLUMES
3 TRIAL COURT CAUSE NO. CCL-10-0869
4 COURT OF APPEALS NO. 04-13-00754-CR
5
)
6 THE STATE OF TEXAS, ) IN THE COUNTY COURT
)
7 )
Plaintiffs )
8 )
VS. ) AT LAW NO. 2
9 )
)
10 JOSE ANGEL FLORES, JR. )
)
11 )
)
12 Defendants ) GUADALUPE COUNTY, TEXAS
13
14
15 ------------------------------
16 PLEA
17 ------------------------------
18
19 On the 23rd day of September, 2013, the following
20 proceedings came on to be heard in the above-entitled
21 and numbered cause before the Honorable Frank Follis,
22 Judge presiding, held in Seguin, Guadalupe County,
23 Texas;
24
25 Proceedings reported by machine shorthand.
County Court at Law No. 2
211 W. Court Street, Ste. 338
Phone (830) 303-4188 ext. 209 Fax (830) 303-0283
2
1 A P P E A R A N C E S
2
3 FOR THE STATE:
4 MR. JOE BUITRON
SBOT NO. 24053117
5 ASSISTANT COUNTY ATTORNEY
211 W. COURT STREET
6 SEGUIN, TEXAS 78155
(830) 303-6130
7
8
9 FOR THE DEFENDANT:
10 MR. W. DAVID FRIESENHAHN
SBOT NO. 07476350
11 LAW OFFICES OF W. DAVID FRIESENHAHN
314 N. AUSTIN STREET
12 SEGUIN, TEXAS 78155
(830) 372-2722
13
14
15
16
17
18
19
20
21
22
23
24
25
County Court at Law No. 2
211 W. Court Street, Ste. 338
Phone (830) 303-4188 ext. 209 Fax (830) 303-0283
3
1 I N D E X
2 (PLEA)
3
4 Page Vol.
5 September 23, 2013
6
7 Court Reporter's Certificate........... 6 4
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1 THE COURT: Jose Flores. You're charged
2 with the offense of driving while intoxicated, alleged to
3 have occurred on or about November 3rd of 2009. This is
4 a class B misdemeanor punishable by not more than
09:48AM 5 180 days in jail, a fine not to exceed $2,000. Do you
6 understand what you're charged with?
7 THE WITNESS: Yes, sir.
8 THE COURT: You have a right to a jury
9 trial. I have here a paper that says you want to give up
09:48AM 10 your right to a jury trial and try your case to me here
11 today; is that what you want to do?
12 THE WITNESS: Yes, sir.
13 THE COURT: I'll approve the waiver. To the
14 offense of driving while intoxicated, first offense, how
09:48AM 15 do you plead, guilty or not guilty?
16 MR. FRIESENHAHN: No contest.
17 THE WITNESS: No contest.
18 THE COURT: Recommendation?
19 MR. FRIESENHAHN: It's an open plea to the
09:48AM 20 Court, Judge.
21 THE COURT: All right. In that event based
22 on your plea, I find that you are guilty. The Court will
23 order a presentence investigation. You'll need to make
24 an appointment with the probation department to be
09:48AM 25 interviewed. And Mr. Friesenhahn, get the appropriate
County Court at Law No. 2
211 W. Court Street, Ste. 338
Phone (830) 303-4188 ext. 209 Fax (830) 303-0283
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1 reset.
2 MR. FRIESENHAHN: Yes, Judge.
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5 (Plea is concluded.)
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1 REPORTER'S CERTIFICATE
2 THE STATE OF TEXAS )
COUNTY OF GUADALUPE )
3
4 I, Stacey B. Sharron, Official Court Reporter in
5 and for the County Court at Law No. 2 of Guadalupe
6 County, State of Texas, do hereby certify that the above
7 and foregoing contains a true and correct transcription
8 of all portions of evidence and other proceedings
9 requested in writing by counsel for the parties to be
10 included in this volume of the Reporter's Record, in the
11 above-styled and numbered cause, all of which occurred
12 in open court or in chambers and were reported by me.
13 I further certify that this Reporter's Record of
14 the proceedings truly and correctly reflects the
15 exhibits, if any, admitted by the respective parties.
16 I further certify that the total cost for the
17 preparation of this Reporter's Record is $395.92 and was
18 paid by Guadalupe County.
19 WITNESS MY OFFICIAL HAND this 20th day of February,
20 2014.
21
22 ___________________________
Stacey B. Sharron, CSR 7743, RPR
23 Expiration Date: 12/31/2015
Official Court Reporter
24 County Court at Law No. 2
Guadalupe County, Texas
25 Seguin, Texas
County Court at Law No. 2
211 W. Court Street, Ste. 338
Phone (830) 303-4188 ext. 209 Fax (830) 303-0283
1
1 REPORTER'S RECORD
2 VOLUME 5 OF 5 VOLUMES
3 TRIAL COURT CAUSE NO. CCL-10-0869
4 COURT OF APPEALS NO. 04-13-00754-CR
5
)
6 THE STATE OF TEXAS, ) IN THE COUNTY COURT
)
7 )
Plaintiffs )
8 )
VS. ) AT LAW NO. 2
9 )
)
10 JOSE ANGEL FLORES, JR. )
)
11 )
)
12 Defendants ) GUADALUPE COUNTY, TEXAS
13
14
15 ------------------------------
16 PUNISHMENT HEARING
17 ------------------------------
18
19 On the 24th day of October, 2013, the following
20 proceedings came on to be heard in the above-entitled
21 and numbered cause before the Honorable Frank Follis,
22 Judge presiding, held in Seguin, Guadalupe County,
23 Texas;
24
25 Proceedings reported by machine shorthand.
County Court at Law No. 2
211 W. Court Street, Ste. 338
Phone (830) 303-4188 ext. 209 Fax (830) 303-0283
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1 A P P E A R A N C E S
2
3 FOR THE STATE:
4 MR. JOE BUITRON
SBOT NO. 24053117
5 ASSISTANT COUNTY ATTORNEY
211 W. COURT STREET
6 SEGUIN, TEXAS 78155
(830) 303-6130
7
8
9 FOR THE DEFENDANT:
10 MR. W. DAVID FRIESENHAHN
SBOT NO. 07476350
11 LAW OFFICES OF W. DAVID FRIESENHAHN
314 N. AUSTIN STREET
12 SEGUIN, TEXAS 78155
(830) 372-2722
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1 I N D E X
2 (PUNISHMENT)
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4 Page Vol.
5 OCTOBER 24, 2013
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7 Court Reporter's Certificate........... 7 5
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1 THE COURT: Jose Flores. The record
2 reflects on September 23rd of 2013, Mr. Flores plead no
3 contest to the offense of driving while intoxicated as
4 alleged. There having been no plea bargain agreement as
11:38AM 5 to punishment, the Court ordered a presentence
6 investigation to be conducted.
7 Mr. Buitron, have you had a chance to review
8 the presentence investigation?
9 MR. BUITRON: Yes, Your Honor.
11:38AM 10 THE COURT: Any objections?
11 MR. BUITRON: No.
12 THE COURT: Mr. Friesenhahn, have you
13 reviewed it?
14 MR. FRIESENHAHN: Yes, I have.
11:38AM 15 THE COURT: Any objections or corrections to
16 factual matters that need to be made?
17 MR. FRIESENHAHN: No, Judge.
18 THE COURT: Mr. Buitron, any evidence?
19 MR. BUITRON: No evidence, Your Honor.
11:38AM 20 THE COURT: Any evidence, Mr. Friesenhahn?
21 MR. FRIESENHAHN: No, Judge.
22 THE COURT: All right. Mr. Buitron, any
23 argument?
24 MR. BUITRON: I would just argue that based
11:38AM 25 on the charge itself, the driving while intoxicated, that
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1 the defendant either be probated for the maximum
2 24 months or be given at least 60 days in jail.
3 THE COURT: Mr. Friesenhahn?
4 MR. FRIESENHAHN: I would ask you to go a
11:38AM 5 little bit lower on the probation simply because this is
6 a first offense, Judge.
7 THE COURT: All right. Having reviewed the
8 evidence and the argument of counsel, the Court finds the
9 defendant is guilty of the offense of driving while
11:39AM 10 intoxicated, as alleged; assess his punishment at 90 days
11 in the Guadalupe County Jail and a $1,000 fine, plus
12 court costs.
13 Because this is not a plea bargain case you
14 have a right to appeal. You also have a right to appeal
11:39AM 15 from the motion to suppress, well it was granted, he has
16 no right to appeal from that.
17 MR. FRIESENHAHN: Well, there were two
18 motions to suppress. You denied the second one.
19 THE COURT: All right. To the extent that
11:39AM 20 you have filed pretrial motions that were denied prior to
21 trial, you have a right to appeal from those denials as
22 well as this sentence. If you wish to give notice of
23 appeal, you must do so, in writing, within 30 days of
24 today's date. If I find that you are indigent and cannot
11:39AM 25 afford an attorney on appeal, one can be appointed to
County Court at Law No. 2
211 W. Court Street, Ste. 338
Phone (830) 303-4188 ext. 209 Fax (830) 303-0283
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1 represent you. And if I find that you are indigent and
2 cannot afford the reporter's record on appeal, I can
3 provide that for you also. Again, Mr. Friesenhahn is
4 certainly well familiar with this. You may want to
11:40AM 5 discuss with him your appeal options. But if you do wish
6 to appeal, you must give notice, in writing, within 30
7 days.
8 You're remanded to the bailiff for the
9 execution of this sentence. Thank you.
10
11 (Hearing is concluded.)
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1 REPORTER'S CERTIFICATE
2 THE STATE OF TEXAS )
COUNTY OF GUADALUPE )
3
4 I, Stacey B. Sharron, Official Court Reporter in
5 and for the County Court at Law No. 2 of Guadalupe
6 County, State of Texas, do hereby certify that the above
7 and foregoing contains a true and correct transcription
8 of all portions of evidence and other proceedings
9 requested in writing by counsel for the parties to be
10 included in this volume of the Reporter's Record, in the
11 above-styled and numbered cause, all of which occurred
12 in open court or in chambers and were reported by me.
13 I further certify that this Reporter's Record of
14 the proceedings truly and correctly reflects the
15 exhibits, if any, admitted by the respective parties.
16 I further certify that the total cost for the
17 preparation of this Reporter's Record is $395.92 and was
18 paid by Guadalupe County.
19 WITNESS MY OFFICIAL HAND this 20th day of February,
20 2014.
21
22 ___________________________
Stacey B. Sharron, CSR 7743, RPR
23 Expiration Date: 12/31/2015
Official Court Reporter
24 County Court at Law No. 2
Guadalupe County, Texas
25 Seguin, Texas
County Court at Law No. 2
211 W. Court Street, Ste. 338
Phone (830) 303-4188 ext. 209 Fax (830) 303-0283
CLERK'S RECORD
VOLUME.-l- of.-l-
Trial Court Cause No. CCL-IO-0869
In the County Court at Law #2
of Guadalupe County, Texas,
Honorable Frank Follis, Judge Presiding
State of Tens, Plaintiff
vs.
Jose Angel Flores, Jr., Defendant
Appealed to the
4th Court of Appeals at San Antonio, Texas
Attorney for Appellant:
Name: Susan Schoon
Address: 118 S. Union Avenue New Braunfels, TX 78130
Telephone no: (830) 627-0044
Fax no: (830) 620-5657
SBOT no: 24046803
Attorney for: Jose Angel Flores. Jr.. Appellant
Delivered to the 4th Court of Appeals at San Antonio, Texas
on the ~ day of dhrU!1fiJ' dOl 385 S.W.3d 110
(Tex. App--San Antonio, 2012) ..................................................................................... 9, 21
Bachick v. State, 30 S.W.3d 552
(Tex. App.—Ft. Worth, 2000) ....................................................................................... 7, 13
Douds v. State, --- S.W.3d--- 2014 WL 2619863
(Tex. App-Houston [14th], June 5, 2014) ................................................... 9, 10, 13, 16, 17
Douds v. State, No.14-12-00642-CR
(Tex. App-Houston [14th], October 15, 2013) .............................................................. 9, 10
Flores v. State, 392 S.W.3d 229
(Tex. App.—San Antonio 2012, pet. ref’d)..................................................................... 1, 2
Reeder v. State, 2014 WL 60162
(Tex. App.—Texarkana, Jan. 8, 2014) .......................................................................... 9, 10
Reeder v. State, 428 S.W.3d 924
(Tex. App.—Texarkana, April 29, 2014) .......................................................... 9, 10, 17, 21
Smith v. State, 2013 WL 5970400
(Tex. App.—Corpus Christi, 2013) ............................................................................... 9, 10
Sutherland v. State,---S.W.3d--- 2014 WL 1370118
(Tex. App.—Amarillo, 2014) ................................................................................ 13, 17, 21
Villarreal v. State, 2014 WL 1257150
(Tex. App.—Corpus Christi, 2013). ...................................................................... 10, 17, 22
Weems v. State, ---S.W.3d--- 2014 WL 2532299
(Tex. App—San Antonio, 2014) ........................................... 8, 9, 10, 11, 13, 17, 21, 22, 23
v
Wehrenberg v. State, 416 S.W.3d 458
(Tex. Crim. App. 2013) ..................................................................................................... 11
Texas Court of Criminal Appeals Cases
Beeman v. State, 86 S.W.3d 613
(Tex. Crim. App. 2002) ................................................................................................. 9, 20
Cantu v. State, 842 S.W.2d 682
(Tex. Crim. App. 1982) ................................................................................................. 6, 18
Chavez v. State, 9 S.W.3d 817
(Tex. Crim. App. 2000) ....................................................................................................... 8
Daugherty v. State, 931 S.W.2d 268
(Tex. Crim. App. 1996) ..................................................................................... 8, 10, 11, 13
Estrada v. State, 154 S.W.3d 604
(Tex. Crim. App. 2005) ..................................................................................................... 18
Turrubiate v. State, 399 S.W.3d 150
(Tex. Crim. App. 2013) ....................................................................................................... 6
Valtierra v. State, 310 S.W.3d 447
(Tex. Crim. App. 2010) ....................................................................................................... 6
Weaver v. State, 349 S.W.3d 521
(Tex. Crim. App. 2011) ....................................................................................................... 6
United States Supreme Court cases
Aviles v. Texas, 134 S. Ct. 902 (Jan. 13 2014) .............................................................. 9, 10
Griffith v. Kentucky, 479 U.S. 314 (1987).................................................................. 11, 14
Illinois v. Krull, 480 U.S. 340 (1987)................................................................................ 14
vi
Kentucky v. King, 563 U.S. ---, 131 S. Ct. 1849, 179 L. Ed. 2d 865 (2011). ...................... 16
Mapp v. Ohio, 367 U.S. 643 (1961) .................................................................................... 7
McNeely v. Missouri, ---U.S.--- 133 S. Ct. 1552 185 L. Ed. 2d 698 (2013) 15, 16, 18, 19, 22
Schmerber v. California, 384 U.S. 757 (1966) .................................................................. 15
South Dakota v. Neville, 459 U.S. 553 (1983) ............................................................ 22, 23
United States v. Davis, ---U.S.---, 131 S. Ct. 2419, 180 L. Ed. 2d 285 (2011) .. 7, 11, 13, 15
United States v. Leon, 468 U.S. 897 (1984) ...................................................................... 14
Texas Statutes
Tex. Crim. Proc Code. Ann. § 38.23 ................................................................................... 7
Tex. Transp. Code Ann. § 724.011 ............................................................................. 19, 22
Tex. Transp. Code Ann. § 724.012(b) ......................................................................... 19, 20
vii
STATEMENT REGARDING ORAL ARGUMENT
Oral argument requested.
viii
ISSUES PRESENTED
The trial properly denied appellant’s motion to suppress because appellant’s blood was
not seized in violation of 38.23(a) of the Texas Code of Criminal Procedure or the Fourth
Amendment of the United States Constitution.
ix
STATEMENT OF THE CASE
Appellant was charged with Driving While Intoxicated/Open Container (Clerk’s
Record (“CR”), pg. 1-2). On November 3rd, 2010, appellant filed a motion to suppress the
blood evidence on the grounds the appellant did not have two prior convictions as
required by the Texas Transportation Code. Id at 18-20. That motion was granted by
Judge Frank Follis. Id at 73. The State appealed that ruling to this Honorable Court who
reversed that decisions and remanded the case back to the trial court on December 5,
2012 (designated as Flores I in this brief). Id at 87, 124-141. The Court of Criminal
Appeals refused appellant’s request for discretionary review.
On May 31, 2013, appellant filed a second motion to suppress in light of the Supreme
Court’s decision in Missouri v. McNeely. Id at 150-151. That motion was set for hearing
on July 16, 2013. Id at 151-52. After hearing evidence and argument, the trial court
denied the motion to suppress. (Reporter’s Record (“RR”), Vol. 3, pg. 13) On September
23, 2013, appellant plead no contest to the charge and was eventually sentenced to 90
days in jail and a $1,000 fine. (RR, Vol. 5 pg. 5). Appellant then appealed his conviction.
(CR at 179). That appeal is the case that is currently before this court and will be
designated as Flores II for purposes of this appeal. Flores v. State, 392 S.W.3d 229 (Tex.
App.—San Antonio 2012, pet. ref’d).
STATEMENT OF FACTS
During both motions to suppress, the only witness to testify was Deputy Robert
Williams of the Guadalupe County Sherriff’s Office. (RR, Vol. 1 & Vol. 3). At the first
motion to suppress, Deputy Williams testified that at 8 p.m. on the date of the offense he
1
received a report that someone had called 911 to report a reckless driver operating a
semi-truck. (RR, Vol. 1, pg. 6). According to Deputy Williams, the caller said that
appellant sounded intoxicated. Id. at 7. When Deputy Williams spotted the vehicle he
observed it driving on the improved shoulder and in between both lanes traffic. Id. at 8.
After observing the traffic violations, Deputy Williams pulled the vehicle over. Id.
Upon the defendant exiting the vehicle, Deputy Williams reported smelling the odor
of alcohol coming from the vehicle and appellant. Id. at 9-10. Deputy Williams also
observed that appellant was not wearing a shirt and had a beer in his right hand. Id. at 9.
In addition, appellant admitted to drinking two beers. Id. at 10. Appellant was offered the
chance to do field sobriety tests, but refused and was placed under arrest for driving while
intoxicated. Id. at 10-11. At some point Deputy Williams asked appellant for a breath
sample and appellant refused. Id. at 11.
While in route to the jail’s sally port, Deputy Williams requested a background
check on appellant and dispatch informed him that appellant had two prior convictions.
Id. Upon learning that, Deputy Williams transported appellant to the hospital and
withdrew appellant’s blood. Id. at 11-13. Deputy Williams did not learn to appellant did
not, in fact, have two prior convictions until just before the hearing on the first motion to
suppress. Deputy Williams’s reliance on the information provided by dispatch was
upheld in Flores I. Id. at 13-14. Flores v. State, 392 S.W.3d 229 (Tex. App.—San
Antonio 2012, pet. ref’d).
During the second motion to suppress, Deputy Williams testified it was somewhere
between less than an hour to an hour after the initial stop that he arrived at jail. (RR Vol.
2
3, pg. 6-7). Though Deputy Williams admitted that he did not seek a warrant because he
did not believe he had too under the Texas Transportation Code’s mandatory blood draw
statute, he also testified that County’s business hours were from 8 am to 5 pm and that he
was not aware that any Guadalupe County magistrate that made themselves readily
available after those hours. Id at 7. In addition, Deputy Williams stated that it has to be a
special circumstance and that he must go up the chain of command to obtain a warrant.
Specifically, he would have to contact Sgt. Strauss and Sgt. Strauss would do whatever
he needed to do, though he was not sure what Straus’s policy was. Id. at 7
SUMMARY OF THE ARGUMENTS
The trial court properly denied appellant’s motion to suppress evidence. First, the
evidence was not seized in violation of the law as contemplated by section 38.23(a) of the
Texas Code of Criminal Procedure. The plain meaning of “in violation” of the law refers
to the state of the law at the time of seizure and not the law as it exists after the fact. In
this case, the evidence was seized on November 3rd, 2009. The decisions by this state’s
appellate courts make it clear that from 2002 until January 13, 2014 they too believed that
warrantless seizures made pursuant to 724.012(b)(3)(B) were valid. This belief only
changed in January 2014 when the Supreme Court vacated Aviles v. State. Therefore,
even if the seizure of appellant’s blood does not comport with the 2013 holding in
McNeely, it was not seized in violation of the law at the time the seizure took place. The
state of the law at that time was that searches pursuant 724.012 were valid and, thus,
38.23(a) does not require suppression of appellant’s blood.
3
Any other reading of the 38.23(a) creates absurd results. It places law enforcement
in an impossible position where they are required to seize evidence in accordance with
the law, but still risk of having their evidence suppressed despite that reliance if
subsequent developments declare their actions invalid well after the fact. In other words,
if one court or legislature declares unconstitutional what previous court or legislature
blesses (as happened in this case) then the evidence is still suppressed despite law
enforcements reliance on those previous pronouncements. Such a result has no deterrent
effect and simply punishes law enforcement for doing what is required of them: acting in
accordance with the law as it exists when they seize the evidence.
The seizure of appellant’s evidence also does not violate the Fourth Amendment
or the federal exclusionary rule because the evidence was seized in a good faith reliance
on a duly passed statute. Suppression would not further the basic purpose of the
exclusionary rule and would lead to the exact same absurd results that would occurred if
the evidence were suppressed under section 38.23(a) of the Code of Criminal Procedure.
Second, the seizure of appellant’s blood also falls under the exigent circumstances
exception to the Fourth Amendment. The evidence in this case was seized well after
normal operating hours in a county whose magistrates, unlike Bexar or Travis County, do
not make themselves available after normal business hours. Additionally, obtaining a
search warrant would require a request that would have had to make its way up the chain
of command with no certainty that all members of it were available and with no
reasonable chance that it would successfully locate a magistrate who could issue the
4
warrant. Meanwhile, Deputy Williams would have been forced to stand pat and wait as
his evidence was destroyed.
Finally, appellee believes that this and other Courts of Appeals have read too much
into the Supreme Court’s vacating of Aviles v. State. In McNeely v. Missouri, the Court
speaks favorably of implied consent laws and in cases like South Dakota v. Neville shown
that it is not uncomfortable either implying consent to motorists nor, in effect, punishing
them for asserting their Fourth Amendment rights. Consequently, appellee believes it is
far from certain that the Supreme Court would see blood draws take pursuant to an
implied consent statute as a violation of the Fourth Amendment under McNeely.
Moreover, because Aviles was decided before McNeely it does not mention the case in
any form. As a result, the Supreme Court’s vacation of Aviles is unsurprising, but had it
intended that act as a signal that warrantless seizures pursuant to 724.012(b)(3)(B), alone,
were a violation of McNeely it could have simply taken the case and done so. Therefore,
appellee respectfully requests this Honorable Court revisit it’s abandonment of Beeman v.
State and uphold the seizure of appellant’s blood.
ARGUMENTS AND AUTHORITIES
REPLY POINT 1: THE TRIAL COURT’S RULING SHOULD BE UPHELD
BECAUSE DEPUTY WILLIAMS’S SEIZURE OF APPELLANT’S BLOOD DID
NOT VIOLATE SECTION 38.23 OR THE FOURTH AMENDMENT BECAUSE
AT THE TIME OF THE ACT, DEPUTY WILLIAM’S SEIZURE OF
APPELLANT’S BLOOD WAS NOT IN VIOLATION OF THE LAW AS
CONTEMPLATED BY 38.23(a), WAS SEIZED IN GOOD FAITH RELIANCE ON
A DULY PASSED STATUTE, DEPUTY WILLIAMS POSSESSED SUFFICIENT
EXIGENT CIRCUMSTANCES TO JUSTIFY THE SEIZURE, AND THE BLOOD
WAS TAKEN PURSUANT TO SECTION 724.012(b)(3)(B) OF THE TEXAS
TRANSPORTATION CODE.
5
A. Standard of Review
A trial court’s denial of a motion to suppress is reviewed under a bifurcated standard.
Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2013). The trial court’s
findings of facts are reviewed under an abuse of discretion standard. Id. An abuse of
discretion exists when a ruling is so clearly wrong as to be “outside the zone within
which reasonable persons might disagree.” Cantu v. State, 842 S.W.2d 667, 682 (Tex.
Crim. App. 1982). The application of the law to those facts is reviewed de novo.
Turrubiate, 399 S.W.3d at 150.
Appellate courts give almost total deference to the trial court’s determination of the
facts supported by the record, especially when the trial court’s findings are based on an
evaluation of credibility and demeanor. Id. If the trial court does not make explicit
findings of fact, then the evidence is viewed in light most favorable to the trial court’s
ruling and the appellate court assumes that the trial court made implicit findings of fact
supported by the record. Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010).
In other words, the court is to give the prevailing party “the strongest legitimate view of
the evidence, and all reasonable inferences that may be drawn from the evidence.”
Weaver v. State, 349 S.W.3d 521, 525 (Tex. Crim. App. 2011).
B. Even if the appellant’s blood was seized in violation of the Supreme Court’s
2013 decision in McNeely v. Missouri, the trial court’s ruling should still be
upheld because the seizure of appellant’s blood does not violate 38.23(a) of
the Texas Code of Criminal Procedure of nor the Federal Exclusionary Rule
of the Fourth Amendment.
1. Section 38.23(a) of the Texas Code of Criminal Procedure 38.23(a) should
be read to prohibit the use of evidence seized in violation of the law as the
law existed on the day of the seizure and not the law as it is existed four
6
years later. Any other reading of 38.23(a) places law enforcement in an
impossible position and leads to absurd results the legislature could not
have intended when it passed that statute.
Under the exclusionary rule, evidence that is seized in violation of the Fourth
Amended cannot be used in the prosecution of the accused. Mapp v. Ohio, 367 U.S. 643
(1961). This rule was not meant as a remedy for violations by law enforcement, but as a
deterrent to discourage them from engaging in conduct that violates the Fourth
Amendment. United States v. Davis, ---U.S.---, 131 S. Ct. 2419, 2426, 180 L. Ed. 2d 285
(2011); Bachick v. State, 30 S.W.3d 549, 552 (Tex. App.—Ft. Worth, 2000). In Texas,
the legislature codified this rule as Section 38.23 of the Code of Criminal Procedure. Tex.
Crim. Proc Code. Ann. § 38.23. The relevant portion of that section states:
(a) No evidence obtained by an officer or other person in violation of any
provisions of the Constitution or laws of the State of Texas, or of the
Constitution or laws of the United States of America, shall be admitted into
evidence against the accused on the trial of any criminal case.
(b) It is an exception to the provisions of Subsection (a) of this Article that the
evidence was obtained by law enforcement officer acting in good faith
reliance upon a warrant issued by a neutral magistrate based on probable
cause.
Id.
In addition, the Texas Penal Code defines “law” to include the constitution, state
and federal statutes, written opinions of a court of record, municipal ordinances, orders of
a commissioner’s court, and rules adopted pursuant to statutes. Tex. Penal Code Ann. §
1.07(a)(30). When interpreting 38.23, the Texas Court of Criminal Appeals has construed
the statute according to the plain meaning and gives the terms their ordinary meaning
7
unless doing so would lead to absurd results. See Chavez v. State, 9 S.W.3d 817, 819
(Tex. Crim. App. 2000).
While not outright holding so, the implication of this court’s recent ruling in Weems
v. State is that under 38.23(a) evidence seized “in violation” of the law requires the
suppression of evidence even cases where the search or seizure was permitted at the time
it was conducted and only became a violation of the law after fact. See Weems v. State, --
-S.W.3d--- 2014 WL 2532299 (Tex. App—San Antonio, 2014). Appellee urges this
Honorable Court to reconsider this interpretation of 38.23(a) because the ordinary
meaning of “in violation” of any “law” means that the law as it existed when the evidence
was seized not after the fact, especially in cases where the state of law is clear at the time
of seizure. Any other reading leads to absurd results.
As noted above, section 38.23(a) requires suppression of evidence in violation of the
law. The Texas Penal Code definition of law, which includes appellant court decisions,
suggests that the legislature contemplated that evidence seized in violation of those
decisions would qualify as evidence that was seized “in violation” of the law under
38.23(a). This is supported by the fact that state appellate courts routinely decided case
involving the suppression of evidence under 38.23, including the interpretation the of that
statute. See Daugherty v. State, 931 S.W.2d 268, 270 (Tex. Crim. App. 1996) (discussing
the meaning of “obtain” under 38.23). Such decisions would not mean much if they were
not considered part of law referenced in 38.23(a).
In this case, the evidence was seized by Deputy Williams on November 3rd, 2009.
At that time, 724.012 had been in existence since 1995. Beeman v. State was decided in
8
2002 and at its blessing of 724.012(b) was still considered good authority in November
2009.1 See Beeman v. State, 86 S.W.3d 613, 615-16 (Tex. Crim. App. 2002). For
example, this Court relied on the Beeman rational in upholding a warrantless blood draw
made pursuant to 724.012(b)(3)(B) in its 2012 Aviles decision and only abandoned that
rational after the Supreme Court vacated Aviles nearly two years later. Aviles v. State,
385 S.W.3d 110, 115-16 (Tex. App--San Antonio, 2012), vacated by, Aviles v. Texas,
134 S. Ct. 902 (Jan. 13 2014); Weems, 2014 WL 2532299. In fact, Courts were still using
Beeman’s rational even after McNeely had been decided to justify upholding warrantless
blood draws made pursuant to 724.012(b). Reeder v. State, 2014 WL 60162 (Tex. App.—
Texarkana, Jan. 8, 2014), withdrawn and superseceded by, Reeder v. State, 428 S.W.3d
924 (Tex. App.—Texarkana, April 29, 2014); Douds v. State, No.14-12-00642-CR (Tex.
App-Houston [14th], October 15, 2013), withdrawn and superseceded by, Douds v. State,
--- S.W.3d--- 2014 WL 2619863 (Tex. App-Houston [14th], June 5, 2014); Smith v.
State, 2013 WL 5970400 (Tex. App.—Corpus Christi, 2013) (opinion withdrawn and
appeal resubmitted). Appellee notes that it does not cite the withdrawn opinions in
Douds, Smith, and Reeder for authority. It only cites them to demonstrate what those
courts believed the law to be at the time those opinions were handed down.2
1
In Beeman v. State, the Texas Supreme Court described 724.012 as follows: “[t]he implied consent law
does just that-it implies consent to a search in certain instances. This is important when there is no search
warrant, since it is another method of conducting a constitutionally valid search. On the other hand, if the
State has a valid search warrant, it has no need to obtain the suspect’s consent.”
“The implied consent law expands the State’s search capabilities by providing framework for
drawing DWI suspects’ blood in the absence of a search warrant It gives officers an additional weapon in
their investigative arsenal, enabling them to draw blood in certain limited circumstances even without a
search warrant.” Beeman, 86 S.W.3d 613, 615-16 (Tex. Crim. App. 2002)
9
Like this Court in Weems, Beeman’s rational was only abandoned after Aviles was
vacated in January 2014. See Reeder, 428 S.W.3d at 92 (6th Court explicitly talks about
the Supreme Court vacating Aviles); See Douds, No.14-12-00642-CR; See Douds, 2014
WL 2619863; See Smith, 2013 WL 5970400; See Villarreal v. State, 2014 WL 1257150
(Tex. App.—Corpus Christi, 2013).3 In short, it is indisputable that the state of law on
November 3, 2009 was that warrantless blood draws made pursuant to 724.012(b)(3)(B)
were permissible and was not seized in violation of the law as it was understood on that
day. The decision in Aviles and initial decisions in Douds, Smith, and Reeder made it
clear that state appellate courts thought the same thing up until the Supreme Court
vacated Aviles in January.
Such a reading of 38.23 does not violate the rule of statutory construction that
ordinarily prohibits courts from implying an exception to a statute that contains an
express exception. See Daugherty, 931 S.W.3d at 270. Appellee is not seeking to graft an
exception on 38.23 nor is it seeking a return to the Linkletter retroactivity test abandoned
2
The original decisions in Douds, Reeder, and Smith have been withdrawn from westlaw. The 14th and 13th Courts of
Appeals still have the withdrawn opinions in Douds and Smith posted on its website as of July 22, 2014. Copies has
been provided as part of this brief. The withdrawn opinion in Reeder is no longer on the website for the 6th Court of
Appeals. Appellee obtained its copy from westlaw prior to it being pulled from the website. It has attached a copy of
those opinions for reference.
3
Aviles v. Texas was vacated on January 13th, 2014. Aviles v. Texas, 134 S. Ct. 902 (Jan. 13, 2014) The original
Reeder opinion was decided on January 8th and the second opinion handed down on April 29, 2014. Reeder, 2014
WL 60162; Reeder, 428 S.W.3d at 924. The original Douds opinion was handed down on October 15, 2014 and the
second opinion was decided on June 5, 2014. Douds, No.14-12-00642-CR; Douds, 2014 WL 2619863. Finally,
Smith was decided on October 31, 2013 and Villarreal was handed down on January 23, 2014.Smitih, 2013 WL
5970400; Villarreal, 2014 WL 1257150. Appellee also notes that Villarreal, Weems, and Reeder mention Aviles
being vacated by name. Villarreal, 2014 WL 1257150; Weems, 2014 WL 2532299; Reeder, 428 S.W.3d at 929.
10
in Griffith v. Kentucky. Griffith v. Kentucky, 479 U.S. 314, 328 (1987).4 It is seeking a
plain reading of “in violation” of the law. It is seeking to do the same thing the Court of
Criminal Appeals did in Daugherty v. State, when it defended the inclusion of the
attenuation doctrine. See Daugherty, 931 S.W.3d at 270. In that case the court stated that:
The ordinary meaning of “obtained” may accommodate the attenuation
doctrine inasmuch as, depending on how removed the actual attainment of
the evidence is from the illegality, the ordinary person would not consider
that evidence to have been obtained by that illegality…If the police had not
illegal stopped the defendant’s car, then not B, if not B, then not C, if not C,
then not D, if not D, then not…Z, if not Z, then not the evidence—there is a
point beyond which the ordinary understanding of “obtained” just does not
apply.
Id. Years later, the Court of Criminal Appeals used the same type of rational in holding
that federal independent source doctrine was applicable under 38.23. Wehrenberg v.
State, 416 S.W.3d 458, 469-70 (Tex. Crim. App. 2013). Likewise, an ordinary person
would not consider evidence to be seized “in violation of” law to mean the law as it exists
years after the evidence was seized. An ordinary person would interpret it to mean the
law as the state of the law at the time evidence was seized. This is particularly true when,
the seized is based on a statute that had been in existence for fifteen years and had been
4
Appellee also argues that the Linkletter doctrine abandoned in Griffith is a creature of case law meant to deal with
the retroactivity of court decisions and while the issue in this case is one of statutory construction and, thus, subject
to the basic rules of statutory construction that are not ordinarily applicable to court decisions. See Griffith v.
Kentucky, 479 U.S. 314 (1987). Additionally, the Supreme Court’s solution to the absurd results that can arise from
absolute retroactivity (and which are described in in great detail by appellee in section B1 of its brief) was to extend
the good faith exception to binding appellate court decisions. See Davis v. United States, 131 S. Ct. 2419, 2424-34
(2011). The Texas Court of Criminal Appeals’s binding decision in Daugherty v. State appears to cuts off the
extension of the good faith doctrine created in Davis. See Daugherty, 931 S.W.3d at 270 Appellee does not concede
that Daughtery’s rational it is correct as pertains to 38.23(b) (which is what this Court relied on in Weems when it
refused to follow Illinois v. Krull), but understands this Honorable Court is bound by it. See Weems, 2014 WL
2532299. Consequently, the inability of law enforcement to avail themselves of the Davis exception would lead to
the absurd result detailed extensively in part B1 of this brief, something the legislature could not have reasonable
intended when it pass that statute nor is consistent with the plain meaning of the text in section 38.23(a).
11
held as a sufficient basis for the seizure by state appellate courts both before and after the
seizure took place.
In addition to being consistent with the ordinary meaning of “in violation of” the
law, appellee’s reading of 38.23(a) prevents the absurd results created by the Court’s
implied reading of 38.23(a). This case, Deputy Williams had a statute that had been in
effect for nearly fifteen years and that appeared to have the blessing of state appellate
courts. There was no reason for him to believe there was a problem with the law until the
Supreme Court vacated Aviles nearly four years after he took appellant’s blood. In fact,
the Beeman, Aviles, and the original decisions in Reeder, Smith and Douds reinforce that
reliance. No reasonable officer should or could have known that they were
unconstitutional prior to January 13, 2014 (the day Aviles was vacated). In fact, to think
otherwise would have gone against the controlling authority in this state.
Thus law enforcement is faced with an impossible situation of 38.23(a) requiring
that their search and seizure be done in compliance with the law, including opinions of
the various appellate courts, but still have to sit and as watch their hard-earned evidence
suppressed despite their reliance on those decisions. If appellate courts bless a statute or a
particular type of search or seizure only to reverse course years down the line, then law
enforcement is punished for having done what they were previously told they could do.
This is not a situation where the state of the law was unclear or unknown when the
evidence was seized. This is a situation where the law in Texas was very clear.
This problem is especially glaring in Weems and other post McNeely decisions. In
addition to being told that their evidence was seized in violation of the law, law
12
enforcement is simultaneously being criticized in exigent circumstances analysis for not
attempting to seek a warrant when the legislature and courts had effectively told them for
more than a decade that they did not need to so long as they complied with 724.012. See
Weems, 2014 WL 2532299; See Douds, 2014 WL 2619863; See Sutherland v. State,---
S.W.3d--- 2014 WL 1370118 (Tex. App.—Amarillo, 2014). This is a catch-22 for law
enforcement as they watch evidence get suppressed for engaging in conduct they had
previously been told was legal. It’s an absurd result and no ordinary person would think
this is what the legislature had in mind when it passed 38.23(a). Cf Daugherty, 931
S.W.2d at 270. Consequently, it does nothing to further the basic purpose of 38.23 or the
exclusionary rule. See Bachick, 30 S.W.3d at 552.
As the United States Supreme Court noted in Davis v. United States:
“It is one thing for the criminal to go free because the constable has blundered. It
is quite another to set a criminal free because the constable has scrupulously
adhered to governing law. Excluding evidence in such cases deters no police
misconduct and imposes substantial social costs.
Davis, 131 S. Ct. at 2434 (holding that the federal good faith doctrine extends to binding
appellate court decisions) (citations omitted).
2. In addition to not violating 38.23(a), Deputy Williams Seizure of
Appellant’s blood does not violate federal exclusionary rule to the Fourth
Amendment to the United States Constitution because it was seized in a
good faith reliance on section 724.012(b) of the Texas Transportation
Code.
Like 38.23(a), the primary purpose of the federal exclusionary rule is not to punish,
but to deter violations of the Fourth Amendment by law enforcement. Davis, 131 S. Ct. at
2426. Since the rules formation, the Supreme Court has carved out several exceptions,
13
including the good faith exception. United States v. Leon, 468 U.S. 897 923-24 (1984). In
Leon, the Supreme Court allowed the use of evidence seized in violation of the Fourth
Amendment because the officer had been acting in good faith reliance upon a warrant
issued by a magistrate. Id. That exception extended was extended to include a good faith
reliance on statute that authorized a warrantless search, so long as the legislature did not
“wholly abandon its responsibilities to enact constitutional laws” when enacting the law
and that the laws the provisions were not such that a reasonable officer should have
known that they were unconstitutional. Illinois v. Krull, 480 U.S. 340, 342, 355 (1987).
Appellee concedes that even if the Court adopts appellee’s desired interpretation of
38.23(a), the Supreme Court’s decision in Griffith v. Kentucky still means that the federal
exclusionary rule is still retroactive. Griffith, 479 U.S. at 328. However Deputy
Williams’s actions fall under the good faith exception to the federal exclusionary rule
outlined in Krull.
As noted in part B1, Beeman, Aviles, and the initial decisions in, Smith, Douds and
Reeder, means that it would have not been reasonable for Williams to believe that the
provisions of 724.012(b)(3)(B) were unconstitutional as the courts in each of those cases
also believed a warrantless seizure pursuant to 724.012(b) was valid. See Krull, 480 U.S.
at 342, 355. Those decisions make it clear that, at the time they were handed down, those
courts thought the same thing. Additionally, given that multiple courts held that opinion
up until January 13, 2013when Aviles was vacated, the legislature could not “wholly
abandon its responsibilities to enact constitutional laws.” See Id. To hold otherwise
would suggest five different state appellate courts engaged in similar behavior. Therefore,
14
Deputy Williams engaged in a good faith reliance on a duly passed (and at the time, duly
upheld) statute when he seized appellant’s blood.
Furthermore, suppressing the evidence in this case under the Fourth Amendment
exclusionary rule (as opposed to 38.23(a)), would lead to the exact same absurd result
that would occurred if the evidence is suppressed under 38.23(a). Law enforcement
would be left in same the impossible position of having their hard work suppressed
despite relying on a statute that had been blessed by state appellant courts. It does nothing
to further the basic purpose of the exclusionary rule. See Davis, 131 S. Ct. at 2426.
Because Deputy Williams had every reason to believe that a warrantless blood draw
under 724.012(b)(3)(B) was constitutionality valid, suppressing the evidence would not
deter future violations of the Fourth Amendment All it would do is punish him for acting
in accordance with the law.
C. The trial properly denied appellant’s motion to suppress because appellant’s
blood was seized pursuant to the exigent circumstances exception to the
Fourth Amendment.
In McNeely v. Missouri the Supreme Court held that the dissipation of alcohol, by
itself, does not constitute exigent circumstances that would justify a warrantless blood
draw. McNeely v. Missouri, ---U.S.--- 133 S. Ct. 1552, 1563, 185 L. Ed. 2d 698 (2013).
However, the Supreme Court also held that the Schmerber v. California was still good
law. McNeely, 133 S. Ct. at 1560. In Schmerber, the Supreme Court upheld law
enforcement’s warrantless seizure of the defendant’s blood under the exigent
circumstances doctrine. Schmerber v. California, 384 U.S. 757 (1966).
15
Under that doctrine, law enforcement is not required to obtain a search warrant if “the
exigencies of the situation make the need of law enforcement so compelling that a
warrantless search is objectively reasonable under the Fourth Amendment. McNeely 133
S. Ct. at 1559. (quoting Kentucky v. King, 563 U.S. ---, 131 S. Ct. 1849, 1856, 179
L. Ed. 2d 865 (2011). Since the doctrine’s creation, courts have found a variety of
situations create such an exigency, including the imminent destruction of evidence.
McNeely, 133 S. Ct. at 1559. Whether exigent circumstances exist is to be determined on
a case by case basis. Id.
While the Supreme Court mentioned that advancements in technology have made it
easier to obtain a warrant, it also noted that “we by no means claim that
telecommunications innovations have, will, or should eliminate all delay from the
warrant application process.” Id. at 1562. The Court acknowledged that warrants take
time to be completed and reviewed by a magistrate. Id. It also conceded that telephonic
and electronic warrants may require officers to engage in time consuming formalities. Id.
Moreover, the existence of the technology did not guarantee that there was a magistrate
even available to sign a warrant. Id at 1562-63. In the second Douds v. State decision, the
Fourteenth Court of Appeals made a similar statement noting that “an officer might know
that no magistrate was available, or that taking a warrant would take so long that the
evidence would be lost.” Douds v. State, --- S.W.3d--- 2014 WL 2619863 (Tex. App.—
Houston [14th], 2014).
In the case at bar, Deputy Williams testified that he stopped the defendant at
approximately eight to eight-thirty in the evening and that the stop lasted approximately
16
an hour. He also stated that the normal business hours for judges in Guadalupe County
were from 8:00 am to 5:00 pm and that he was not aware of any judges that made
themselves available after 5:00 pm. In addition, before requesting a warrant at that he
would first have to go up the chain of command, which began with Sergeant Straus.
In other words, this is not a case like Weems or Sutherland v. State, where the officers
had an available on-call twenty-hour magistrate and an established procedure in place for
the specific purpose of obtaining a person’s blood. See Weems, 2014 WL 2532299; See
Sutherland, 2014 WL 1370118.5 Instead, Deputy Williams would have had to call his
Sergeant (assuming he was even available in the first place), wait for the sergeant to
complete his portion, hope his superiors are able to find someone, and then go through
the process of obtaining the warrant itself. However, given the fact that the arrest
occurred outside normal business hours and that local magistrates did not normally make
themselves available after hours, the reality is that find a magistrate was unlikely, let
alone finding on in a reasonable amount of time. Meanwhile, Deputy Williams would
have had to sit and wait while the alcohol in appellant’s continued to dissipate. At the
very least, it was not “outside the zone within which reasonable persons might disagree”
for the trial court to conclude that the process of obtaining a warrant under these
circumstances was going to very time consuming while also being unlikely to succeed.
5
In Villarreal v. State and the second Reeder v. State decision, the State did not argue that it had exigent
circumstances. Villarreal, 2014 WL 12577150; Reeder v. State, 428 S.W.3d at 927. In the second Douds v. State
case, the state relied on the existence of an accident for its exigent circumstances argue and the decision does not
talk about whether Brazoria County or Pearland have an on-call magistrate or anything similar to what Bexar and
Travis County have. Douds, 2014 WL 2619863.
17
See Cantu, 842 S.W.2d at 682. Consequently, it could have reasonable found the
sufficient exigent circumstances justified the seizure appellant’s blood warrant.
Appellee does not argue that the lack of a twenty-four on-call magistrate or a system
similar to Bexar and Travis Counties create a per se exigency. Different counties will
have different rules, procedures, or methods for dealing with this situation. In addition,
not all DWI arrests will occur during times when magistrates are known to be
unavailable. Appellee only argues in this particular the constitute exigent circumstances
and that the trial court, in viewing the evidence in light most favorable to the ruling,
could reasonably conclude that “exigencies of the situation makes the need of law
enforcement so compelling that a warrantless search is objectively reasonable under the
Fourth Amendment.” See McNeely, 133 S. Ct. at 1559.
Finally, while appellee concedes that Deputy Williams testified that the reason he did
not obtain a search warrant was because he did not believe he had to under 724.012,
appellant courts are to uphold the trial court’s ruling if it is correct under any theory of
law that is applicable to the case. Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App.
2005). That Williams himself did not cite exigent circumstances does not mean they did
not exist.
His reliance on 724.012(b)(3)(B) on scene, does not change the fact that when
viewing the evidence in light most favorable to the trial court’s ruling, that in order to
obtain a warrant, Deputy Williams would have had to go undergo a cumbersome, time-
consuming process without reasonable certainty that it would succeed. He could have
reasonably concluded that by the time either someone was found or his superiors gave up
18
trying that much of his evidence would have been destroyed. Therefore, regardless of his
reliance on 724.012(b)(3)(B), the trial court’s ruling should be upheld under exigent
circumstances exception to the Fourth Amendment.
D. The trial court’s ruling should be upheld because Deputy Williams seized the
appellant’s blood in compliance of 724.012(b), which does not violate the 4th
Amendment nor conflict with the Supreme Court’s decision in McNeely v.
Missouri. Therefore, appellee believes Weems v. State was incorrectly decided
and respectfully requests that this Honorable Court revisit its holding in that
case.
As noted above, the United States Supreme Court in Missouri v. McNeely held that
the natural dissipation of alcohol from the blood did not create a per se or categorical
exigent circumstance that would justify not obtaining a search warrant. McNeely, 133
S.Ct.at 1563. In doing so, they also held the natural dissipation of alcohol may support of
find of exigent circumstances, but that whether it does must be determined by the totality
of the circumstances. Id.
Section 724.011 of the Texas Transportation Code states
If a person is arrested for an offense arising out of acts alleged to have been
committed while the person was operating a motor vehicle in a public place or
watercraft, while intoxicated…, the person is deemed to have consented,
subject to this chapter, to submit to the taking of one or more specimens of the
person’s breath or blood for analysis to determine the alcohol concentration or
the presence in the person’s body of a controlled substance, drug, dangerous
drug, or other substances.
Tex. Transp. Code Ann. § 724.011. Section 724.012 lays a variety of circumstances
where law enforcement is required to take a specimen of breath or blood. Tex. Transp.
Code Ann. § 724.012(b). Those circumstances include:
(1) The person was an operator of a motor vehicle or a watercraft
involved in an accident that the officer reasonably believes occurred
19
as a result of the offense and, at the time of the arrest, the officer
reasonably believes that as a direct result of the accident: (A) an
individual had died or will die; (B) an individual other than the
person has suffered serious bodily injury; (C) an individual other
than the person has suffered bodily injury and been transported to a
hospital or other medical facility for medical treatment
(2) the offense for which the officer arrests the person is an offense
under Section 49.045, Penal Code, or
(3) at the time of the arrest, the officer possesses or received reliable
information from a credible source that the person (A) has been
previously convicted of or placed on community supervision for an
offense under 49.045, 49.07, or 49.08, Penal Code, or an offense
under the laws of another state containing elements substantially
similar to the elements of an offense under those sections; or (B) on
two or more occasions, has been previously convicted for an offense
under Section 49.04, 49.06, 49.06, or 49.065, Penal Code, or an
offense under the laws of another state containing elements of the
offense under those sections.
Id. Finally, in 2002, the Court of Criminal Appeals, in Beeman v. State noted:
The implied consent law does just that-it implies consent to a search in
certain instances. This is important when there is no search warrant, since it
is another method of conducting a constitutionally valid search. On the
other hand, if the State has a valid search warrant, it has no need to obtain
the suspect’s consent.
The implied consent law expands the State’s search capabilities by
providing framework for drawing DWI suspects’ blood in the absence of a
search warrant It gives officers an additional weapon in their investigative
arsenal, enabling them to draw blood in certain limited circumstances even
without a search warrant.
Beeman, 86 S.W.3d at 615-16.
As discussed in detail in Part B, this Court and several other Court’s initially relied
on this rational to uphold a warrantless blood draw made pursuant to 724.012(b), only to
abandon it once the Supreme Court vacated Aviles in Aviles v. Texas. With the exception
20
of Douds v. State, the subsequent decisions makes it clear that it was a significant, if not
the primary, basis for the change is the Supreme Court vacating Aviles v. State. Weems,
2014 WL 2532299; Reeder, 428 S.W.3d at 929; Cf Sutherland, 2014 1370118 (the court
in Sutherland did not originally adopt Beeman’s rational, but does state that “by vacating
and remanding Aviles, it would seem the United States Supreme Court has rejected any
position that would treat 724.012(b)(3)(B) as an exception to the Fourth Amendment…”).
Appellee believes that both this and the other Court’s read too much into the Supreme
Court’s vacation of Aviles.
Specifically, Aviles was decided approximately a year before McNeely, and
consequently does not mention the case at all. See Aviles, 385 S.W.3d 100. Therefore, it
is no surprise that it was sent back for reconsideration. However, appellee does not
believe that act is the equivalent of signal as to the specific intent on how or whether
McNeely would affect 724.012(b). McNeely was a clarification of the exigent
circumstances doctrine and not a ruling on implied consent statutes. The Supreme Court
could have simply kept the case and explicitly ruled on 724.012(b) had it desired to do so.
In discussing that, the Supreme Court described implied consent laws in the following
manner:
[a]s an initial matter, states have a broad range of legal tools to enforce their
drunk-driving laws and to secure BAC evidence without undertaking
warrantless nonconsensual blood draws. For example, all 50 States have
adopted implied consent laws that require motorists, as a condition of
operating a motor vehicle within the state, to consent to BAC testing if they
are arrested or otherwise detained on suspicion of a drunk-driving
offense…Such laws impose significant consequences when a motorist
withdraws consent, typically the motorist’s driver’s license is immediately
21
suspended or revoked, and most States allow the motorist’s refusal to take a
BAC test as evidence against him in a subsequent prosecution.
McNeely, 133 S. Ct. at 1556.
While the issue of implied consent was not before them, the above language suggests
that it is far from a fiat acompli that a warrantless draw made pursuant to an implied
consent statute would run afoul of McNeely. At the very least, its decision in South
Dakota v. Neville suggests that the Supreme Court is not uncomfortable with the concept
of implying consent via statute or with the fact that these statutes effectively punish
motorist for asserting their Fourth Amendment rights. See South Dakota v. Neville, 459
U.S. 553, 558-64 (1983) (upholding an implied consents statute’s use of an adverse
inference against a person for refusing to submit to a blood alcohol test). In short,
appellee believes that it is not obvious that the Supreme Court’s vacating of Aviles
indicates how it would rule on a draw pursuant to 724.012(b), and that this Honorable
Court stretches that action further that it should in holding that McNeely meant that
Beeman’s rational was no longer valid. Weems, 2014 WL 2532299.
Finally, appellee also notes that in Villarreal v. State, which is cited favorably in
Weems, the Corpus Christi Court of Appeals, stated:
“There is a distinction between a consensual blood draw and an involuntary,
mandatory blood draw. The implied consent law is premised on consent
Beeman 86 S.W.3d at 615. The mandatory blood draw is premised on a refusal
consent. See Tex. Transp. Code Ann. § 724.012(b)(3)(B).
Villarreal, 2014 WL 1257150; See Weems, 2014 WL 2532299. The implied consent
statute, which the mandatory draw is a part of, is invoked when a driver operates a motor
vehicle on a Texas road while intoxicated. See Tex Transp. Code Ann. § 724.011.
22
Consent is implied by that very act. Villarreal’s rational and citations to
724.012(b)(3)(B)’s requirement that a person refuse before a draw become mandatory
suggests that the removal of that requirement, which makes the law more restrictive,
would survive under the consent exception as it would then be premised on the implied
consent (i.e. the consent exception) of section 724.012(a). Moreover, the statute, based on
that same implied consent, also allows the state to punish the defendant through the use
of that refusal at trial and license suspension for refusing to permit to a search of his or
her blood. Appellee does not see a meaningful difference between permitting the search
under implied consent and permitting the state to punish for refusing that search,
something which the Supreme Court permitted under Neville. See Neville, 459 U.S. at
558-64. Consequently, between this and the Supreme Court’s description of implied
consent statutes, McNeely does not affect the constitionality of Texas’s statute nor blood
draws taken pursuant to it.
In sum, appellee believes that Supreme Court’s vacating of Aviles means only what it
purports to say: that the Supreme Court wanted this Court to evaluate the draw in light of
McNeely and that it was not a signal meant to suggest a particular result as suggested in
Weems. See Weems, 2014 WL 2532299. Therefore, appellee believes that Weems was
incorrectly decided. Appellee respectfully requests this Honorable Court reconsider its
holding in that case, and for the reasons outlined above, believes that Beeman’s
description of 724.012(b) remains valid.
23
CONCLUSION AND PRAYER
WHEREFORE, appellee respectfully prays that this court uphold the trial court’s
denial of appellant’s motion to suppress.
__
Christopher M. Eaton
Assistant County Attorney
Guadalupe County, Texas
State Bar No. 24048238
211 W. Court St., 3rd Floor
Seguin, Texas 78155
Phone: (830) 303-6130
Fax: (830) 379-9491
Attorney for Appellee
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of this document was served by fax
on Appellant’s attorney Susan School at 830-620-5657 on the 30st day of July, 2014.
Chris Eaton
24
25