State v. Anthony James Sanchez

ACCEPTED
03-14-00602-CR
4397556
THIRD COURT OF APPEALS
AUSTIN, TEXAS
3/6/2015 11:15:53 AM
JEFFREY D. KYLE
CLERK
No. 03-14-00602-CR
FILED IN
3rd COURT OF APPEALS
In the AUSTIN, TEXAS
Court of Appeals 3/6/2015 11:15:53 AM
Third District JEFFREY D. KYLE
Austin, Texas Clerk
The State of Texas,
Appellant
v.
Anthony James Sanchez,
Appellee
Appeal from the 167th Judicial District Court
Travis County, Texas
Cause Number D-1-DC-13-200502
STATE’S REPLY BRIEF
Rosemary Lehmberg
District Attorney
Travis County
Angie Creasy
Assistant District Attorney
State Bar No. 24043613
P.O. Box 1748
Austin, Texas 78767
(512) 854-9400
Fax (512) 854-4810
Angie.Creasy@traviscountytx.gov
AppellateTCDA@traviscountytx.gov
Table of Contents
Index of Authorities............................................................................. ii
Points One and Two..............................................................................1
Point Three .......................................................................................... 2
Point Four...........................................................................................10
Prayer ................................................................................................. 11
Certificate of Compliance and Service................................................12
i
Index of Authorities
Cases
Aliff v. State, 627 S.W.2d 166 (Tex. Crim. App. 1982) ........................ 3
Anderson v. State, 2010 Tex. App. LEXIS 7043 (Tex. App.–Austin
2010, pet. ref'd) (mem. op., not designated for publication) ........... 6
Aviles v. State, 385 S.W.3d 110 (Tex. App.—San Antonio 2012, pet
ref’d), ................................................................................................ 7
Blumenstetter v. State, 135 S.W.3d 234 (Tex. App.–Texarkana 2004,
no pet.) ............................................................................................. 5
Burkhalter v. State, 642 S.W.2d 231, 233 (Tex. App.—Houston [14th
Dist.] 1982, no pet.) .......................................................................... 3
Dominguez v. State, 1999 Tex. App. LEXIS 5972 (Tex. App.–Corpus
Christi 1999, pet. ref’d)..................................................................... 4
Gattis v. State, 2004 Tex. App. LEXIS 9284 (Tex. App.–Houston [14th
Dist.] 2004, no pet.) (not designated for publication) ..................... 5
Griffith v. Kentucky, 479 U.S. 314 (1987)............................................ 9
Hayes v. State, 634 S.W.2d 359 (Tex. App.—Amarillo 1982, no pet.) 3
Pesina v. State, 676 S.W.2d 122 (Tex. Crim. App. 1984)..................... 3
Port. v. State, 2005 Tex. App. LEXIS 10261 (Tex. App.–Fort Worth
2005, no pet.) (mem. op., not designated for publication) .............. 6
Rubio v. State, 1999 Tex. App. LEXIS 5968 (Tex. App.–Corpus
Christi 1999, pet. ref’d) (not designated for publication)................. 5
Skinner v. State, 2006 Tex. App. LEXIS 4448 (Tex. App.–Tyler 2006,
pet. ref’d) (mem. op., not designated for publication) ..................... 6
State v. Laird, 38 S.W.3d 707 (Tex. App.–Austin 2000, pet. ref’d).... 5
State v. Villarreal, No. PD-0306-14, 2014 Tex. Crim. App. LEXIS
1898 (Tex. Crim. App. Nov. 26, 2014)...............................................1
Stidman v. State, 981 S.W.2d 227 (Tex. App.–Houston [1st Dist.]
1998, no pet.).................................................................................... 4
Stovall v. State, 440 S.W.3d 661 (Tex. App.–Austin 2011, no pet.) .... 7
United States v. Levy, 416 F.3d 1273 (11th Cir. 2005) ........................ 8
Weaver v. State, 721 S.W.2d 495 (Tex. App.—Houston [1st Dist.]
1986, pet. ref’d)................................................................................. 4
Statutes
Tex. Code Crim. Proc. art. 38.23 ......................................................... 9
ii
No. 03-14-00602-CR
In the
Court of Appeals
Third District
Austin, Texas
The State of Texas,
Appellant
v.
Anthony James Sanchez,
Appellee
Appeal from the 167th Judicial District Court
Travis County, Texas
Cause Number D-1-DC-13-200502
STATE’S REPLY BRIEF
To the Honorable Third Court of Appeals:
Now comes the State of Texas and files this reply brief.
Points One and Two
In its original brief, the State informed this court about an adverse
opinion from the Court of Criminal Appeals, which directly
contradicts the arguments made by the State in Points One and Two.
See State v. Villarreal, No. PD-0306-14, 2014 Tex. Crim. App. LEXIS
1898 (Tex. Crim. App. Nov. 26, 2014).
1
A motion for rehearing was granted in Villarreal on February 25,
2015. See id., 2015 Tex. Crim. App. LEXIS 201. It is possible that the
court will issue a different decision upon rehearing, especially since
the court was narrowly split 5-4, and three of the judges who joined
the majority opinion have recently left the court.
But regardless of the outcome of Villarreal, the evidence is still
admissible because the federal and Texas exclusionary rules do not
apply, as argued in State’s Points Three and Four.
Point Three
In Point Three, the State argued that the Texas exclusionary rule
does not apply because the police did not obtain the evidence in
violation of the Fourth Amendment because, at the time of the blood
draw, Texas case law clearly held that alcohol dissipation alone
constituted exigent circumstances in DWI cases.
The defendant counters that Texas precedent did not hold that
these warrantless blood draws were constitutional. He then factually
distinguishes the two cases that the State cited for this proposition
(Aliff and Laird).
2
The State cited only two cases for brevity’s sake. The State now
cites to the following list of cases to show that Texas precedent did
hold that warrantless, nonconsensual blood draws were constitutional
because alcohol dissipation alone constituted exigent circumstances:
 Aliff v. State, 627 S.W.2d 166, 170 (Tex. Crim. App. 1982) held
that the exigency of rapidly dissipating alcohol justified a
warrantless blood draw. Any factual distinction made by the
defendant is irrelevant to this holding.
 Pesina v. State, 676 S.W.2d 122 (Tex. Crim. App. 1984) is an en
banc decision that focused on probable cause and not exigent
circumstances, but it quoted Aliff extensively, including the
holding that the exigency of rapidly dissipating alcohol justifies
a nonconsensual warrantless blood draw. Id. at 126. Pesina also
quoted Hayes and Burkhalter:
 Hayes v. State, 634 S.W.2d 359, 362 (Tex. App.—Amarillo
1982, no pet.) explained that Aliff permitted a warrantless
search because of the exigency of rapidly dissipating alcohol.
 Burkhalter v. State, 642 S.W.2d 231, 233 (Tex. App.—Houston
[14th Dist.] 1982, no pet.) explained that Aliff held that the
3
exigency of rapidly dissipating alcohol justified the obtaining of
a blood sample without the donor's consent and the obtaining
of a blood sample under those circumstances without warrant
or consent is not violative of the state and federal constitutions.
 Weaver v. State, 721 S.W.2d 495, 497 (Tex. App.—Houston [1st
Dist.] 1986, pet. ref’d) stated that Aliff held that a warrantless
blood draw did not violate the Constitution due to the rapid rate
at which alcohol diminishes in the blood.
 Stidman v. State, 981 S.W.2d 227, 229 (Tex. App.–Houston [1st
Dist.] 1998, no pet.) stated that police may compel blood draws
to preserve evidence of blood alcohol content.
 Dominguez v. State, 1999 Tex. App. LEXIS 5972, at *8 (Tex.
App.–Corpus Christi 1999, pet. ref’d) (not designated for
publication) stated that the human body's natural elimination
of alcohol from the bloodstream creates an immediate need to
draw a blood sample and leaves little time to secure a warrant
from a magistrate, and it cites to Aliff and Schmerber in holding
that there was no constitutional violation.
4
 Rubio v. State, 1999 Tex. App. LEXIS 5968, at *9 (Tex. App.–
Corpus Christi 1999, pet. ref’d) (not designated for publication)
stated that the danger of the alcohol dissipating from
appellant's system provided the exigent circumstances
necessary for the DPS to take his blood specimen without
consent or warrant, and finding no constitutional violation.
 State v. Laird, 38 S.W.3d 707, 713 (Tex. App.–Austin 2000, pet.
ref’d) stated that it is a well-settled fact that alcohol in the blood
dissipates quickly constitutes exigent circumstances.
 Blumenstetter v. State, 135 S.W.3d 234, 243 (Tex. App.–
Texarkana 2004, no pet.) stated that exigent circumstances
exist because alcohol in blood is quickly consumed and the
evidence may be lost forever.
 Gattis v. State, 2004 Tex. App. LEXIS 9284, at *12 (Tex. App.–
Houston [14th Dist.] 2004, no pet.) (not designated for
publication) stated that the fact that alcohol in the blood
dissipates quickly constitutes exigent circumstances.
 Porter v. State, 2005 Tex. App. LEXIS 10261, at *8 (Tex. App.–
Fort Worth 2005, no pet.) (mem. op., not designated for
5
publication) cited Aliff as holding that the taking of a blood
sample from a person not under arrest does not violate the
Fourth Amendment when officers have probable cause to
arrest, exigent circumstances such as the rapid rate at which
alcohol dissipates from the blood, and a reasonable method of
extraction.
 Skinner v. State, 2006 Tex. App. LEXIS 4448, at *4-5 (Tex.
App.–Tyler 2006, pet. ref’d) (mem. op., not designated for
publication) cited Aliff for the holding that taking a blood
sample from a person under arrest does not violate the Fourth
Amendment when officers have probable cause to arrest
because alcohol dissipates from the blood stream at a rapid
rate.
 Anderson v. State, 2010 Tex. App. LEXIS 7043, at *9-10 (Tex.
App.–Austin 2010, pet. ref'd) (mem. op., not designated for
publication) cited Aliff as holding that, under the Texas
Constitution, the warrantless taking of a blood sample is not an
unreasonable search and seizure so long as probable cause to
arrest exists, the method of extraction is reasonable, and there
6
are exigent circumstances such as the consequences of a delay
in taking the blood sample.
 Stovall v. State, 440 S.W.3d 661, 669 (Tex. App.–Austin 2011,
no pet.) stated that the fact that alcohol dissipates quickly in the
blood has been held to constitute exigent circumstances.
Regardless of factual distinctions, these cases make clear that
Texas precedent held that warrantless, nonconsensual blood draws
were constitutional because alcohol dissipation alone constituted
exigent circumstances. McNeely changed the law, of course, but the
fact remains that the police did not obtain the evidence in violation of
the Fourth Amendment based on the law in effect at the time of the
blood draw.
The defendant also argues that ruling in the State’s favor would be
contrary to obvious Supreme Court will, and he bases this assertion
on the fact that the Supreme Court remanded a Texas case, which
found these types of blood draws constitutional, for reconsideration
in light of McNeely. See Aviles v. State, 385 S.W.3d 110 (Tex. App.—
San Antonio 2012, pet ref’d), remand at 134 S. Ct. 902, 187 L. Ed. 2d
7
767 (2014). The defendant reads far too much into a generic remand.
As explained by the Eleventh Circuit,
Whenever the Supreme Court decides an important
issue of law, it routinely takes every case in which the
court of appeals decision came out before the new
decision was announced and in which the certiorari
petitioner claims that new decision might apply, and
treats all of those cases the same. The uniform
treatment given all such cases is to vacate the court of
appeals judgment and remand the case for further
consideration in light of the new decision. Those
boilerplate orders come out in bushel baskets full.
There is no implication in the standard language of
those orders that the court of appeals is to do anything
except reconsider the case now that there is a new
Supreme Court decision that may, or may not, affect
the result. We have never felt constrained to read
anything into such routine remands other than the
direction that we take another look at the case because
of the new decision.
United States v. Levy, 416 F.3d 1273, 1280 (11th Cir. 2005).
The defendant also argues that ruling in the State’s favor would go
against the trend of appellate decisions in Texas. But these courts
have not addressed the State’s argument in Point Three, which is that
the Texas exclusionary rule does not apply because the police did not
obtain the evidence in violation of the Fourth Amendment. Some of
these courts have addressed (and rejected) arguments for a good faith
exception to the Texas exclusionary rule, but the State is not arguing
8
for a good faith exception here. Rather, the State is arguing that the
exclusionary rule does not apply at all because the police did not
obtain the evidence in violation of the Fourth Amendment.
Finally, the defendant argues that the holding in McNeely should
be applied retroactively, citing Griffith v. Kentucky, 479 U.S. 314, 328
(1987) (holding that a new rule for the conduct of criminal
prosecutions is to be applied retroactively to all pending cases).
But the defendant acknowledges that this does not mean that the
exclusionary rule applies as well. Indeed, the Supreme Court has held
that the federal exclusionary rule often does not apply, under several
good faith exceptions.
It is now up to Texas courts to decide whether the Texas
exclusionary rule applies when the law changes after evidence is
obtained. This will turn on how the courts interpret the language in
the Texas exclusionary rule, codified in Tex. Code Crim. Proc. art.
38.23. Again, the State’s argument is that the Texas exclusionary rule
does not apply when the law changes after evidence has been
obtained because, in such a situation, the evidence was not actually
obtained in violation of the law.
9
Point Four
In Point Four, the State argued that the federal exclusionary rule
does not bar admission of the evidence under a couple of good faith
exceptions. The evidence is admissible if the court finds that either
one applies.
The defendant counters that the good faith exception for reliance
on a statute does not apply because the Transportation Code does not
require that the police draw blood without a warrant. The State
disagrees. The Transportation Code does mandate warrantless blood
draws, as argued on page 6 of the State’s original brief. The defendant
also argues that the police should have known that these warrantless
blood draws were unconstitutional. The State disagrees. The
precedent in Texas clearly approved of these warrantless,
nonconsensual blood draws, as previously argued.
The defendant also argues that the good faith exception for
reliance on binding precedent does not apply because the State has
cited only dicta, not binding precedent. Again, the State disagrees.
The cases listed above clearly show that there was strong precedent in
Texas (before McNeely) that held that mandatory warrantless blood
10
draws were constitutional because dissipation of alcohol alone was an
exigent circumstance.
Finally, the defendant argues that there is no good faith exception
to the Texas exclusionary rule, but State’s Point Four actually
addresses the federal exclusionary rule, not the Texas rule. The State
addressed the Texas exclusionary rule in Point Three, and it did not
argue for a good faith exception to the Texas exclusionary rule.
Rather, the State argued that the Texas exclusionary rule does not
apply at all because the officer did not obtain the evidence in violation
of the Fourth Amendment at the time of the blood draw.
Prayer
The State asks this Court to sustain its points of error, reverse the
trial court’s order suppressing the results of the blood analysis, and
remand this case to the trial court for further proceedings.
Respectfully submitted,
Rosemary Lehmberg
District Attorney
Travis County
11
Angie Creasy
Assistant District Attorney
State Bar No. 24043613
P.O. Box 1748
Austin, Texas 78767
(512) 854-9400
Fax (512) 854-4810
Angie.Creasy@traviscountytx.gov
AppellateTCDA@traviscountytx.gov
Certificate of Compliance and Service
I hereby certify that this brief contains 1,907 words. I further
certify that, on the 6th day of March, 2015, a true and correct copy of
this brief was served, by U.S. mail, electronic mail, facsimile, or
electronically through the electronic filing manager, to the Appellee’s
attorneys, Fernando Cortes, Attorney at Law, 100 N. Santa Rosa,
#824, San Antonio, Texas 78207; and Rocio Ramirez, Attorney at
Law, 1603 Babcock Road, Suite 159, San Antonio, Texas 78229.
Angie Creasy
12