PD-1428-15
COURT OF CRIMINAL APPEALS AUSTIN, TEXAS
Transmitted 12/9/2015 11:44:31 AM Accepted 12/11/2015 11:14:43 AM No. PD-1428-15 ABEL ACOSTA CLERK
(Court of Appeals No. 02-14-00339-CR)
IN THE
COURT OF CRIMINAL APPEALS OF TEXAS
ANN BUCARO,
Petitioner,
v.
THE STATE OF TEXAS
PETITIONER'S PETITION FOR DISCRETIONARY REVIEW
On discretionary review from the Court of Appeals Second District of Texas at Fort Worth
MELVYN CARSON BRUDER
516 Turley Law Center
6440 N. Central Expressway Dallas, Texas 75206
214.987.3500
December 11, 2015 214.987.3518 Telecopier
Counsel for Petitioner
IDENTITY OF JUDGE, PARTIES, AND COUNSEL The trial court judge in this case was Virgil Vahlenkamp. The parties to the judgment in this case are Ann Bucaro and the State of Texas. The names and addresses of all trial and appellate counsel are:
Hayley Jones
Assistant Criminal District Attorney Denton County Courts Building 1450 E. McKinney Street
Denton, TX 76209
Trial Counsel for the State of Texas
Melvyn Carson Bruder
615 Turley Law Center
6440 N. Central Expressway Dallas, TX 75206
Trial Counsel for Ms. Bucaro
Paul Johnson
Criminal District Attorney Denton County Courts Building 1450 E. McKinney Street
Denton, TX 76209
Appellate Counsel for the State of Texas
Melvyn Carson Bruder
516 Turley Law Center
6440 N. Central Expressway Dallas, TX 75206
Appellate Counsel for Ms. Bucaro
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TABLE OF CONTENTS
Identity of Judge, Parties, and Counsel ................................................................. i Table of Contents ................................................................................................. ii Index of Authorities ............................................................................................. iv Statement Regarding Oral Argument ................................................................... 2 Statement of the Case ........................................................................................... 2 Statement of the Procedural History of the Case ................................................. 2 Grounds for Review .............................................................................................. 3
1. Whether the portion of the Texas Transportation Code that permits the introduction into evidence at a person’s trial of that person’s refusal to provide a specimen of breath or blood at the request of the arresting officer (§ 724.061)
violates the Fourth Amendment to the Constitution of the United States. CR 21-23, 25-27, 30; RR 29-31, 36-37.
2. Whether consent obtained under the Implied Consent Law satisfies the requirement of consent under the Fourth Amendment. CR 21-23. 25-27, 30; RR 29-31, 36-37.
Argument .............................................................................................................. 3 Relevant Facts ............................................................................................. 3 How the Court of Appeals Decided Ground for Review No. 1 ................. 5 Why This Court Should Grant Discretionary Review ............................... 6 How the Court of Appeals Decided Ground for Review No. 2 ................. 9 Why This Court Should Grant Discretionary Review ............................. 10 Prayer for Relief .................................................................................................. 13 Certificate of Service ........................................................................................... 14 Certificate of Compliance ................................................................................... 15 -ii-
Appendix A - Opinion of the Court of Appeals in Bucaro v. State ................... 15 Appendix B - Order Denying Motion for Rehearing in Bucaro v. State .......... 26
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INDEX OF AUTHORITIES
Cases:
Bucaro v. State No. 02-14-00339-CR, Tex.App. – Fort Worth Aug. 27, 2015 ........ 2
Bumper v. North Carolina 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968) ................... 12
Burson v. Bell 402 U.S. 505, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971) ..................... 12
Camara v. Municipal Court of the City and County of San Francisco 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967) ..................... 7
District of Columbia v. Little 339 U.S. 1, 70 S.Ct. 468, 94 L.Ed. 599 (1950) ............................... 6
Doyle v. Ohio 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976) ...................... 7
Fienen v. State 390 S.W.3d 328 (Tex.Crim.App.2012) ........................................... 6
Florida v. Royer 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed. 229 (1983) ...................... 12
Forsyth v. State 438 S.W.3d 216 (Tex.App. – Eastland 2014) ................................. 12
Garrity v. New Jersey 85 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967) ....................... 12
Gore v. State No. 01-13-00608-CR (Tex.App. – Houston [1st Dist.]
Nov. 13, 2014 ................................................................................. 12
Missouri v. McNeely 569 U.S. ___, 133 S.Ct. 1552 (2013) .............................................. 6
People v. Pollard 307 P.3d 1124 (Colo.App. 2013) .................................................... 9
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Powell v. State 660 S.W.2d 842 (Tex.App. – El Paso 1983) ................................... 8
Reeves v. State 969 S.W.2d 471 (Tex.App. – Waco 1998) .................................. 7, 8
Skinner v. Railway Labor Executives’ Association 489 U.S. 602, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989) ................. 7
State v. Kelly 204 S.W.3d 808 (Tex.Crim.App. 2006) ........................................ 12
United States v. Clariot 655 F.3d 550 (6th Cir.2011) ........................................................... 7
United States v. Moreno 233 F.3d 937 (7th Cir.2000) ............................................................ 8
United States v. Prescott 581 F.2d 1343 (9th Cir.1978) ........................................................... 8
United States v. Runyon 290 F.3d 223 (5th Cir.2002) ............................................................ 8
United States v. Thame 846 F.2d 200 (3rd Cir.1988) ........................................................... 8
Weems v. State 434 S.W.3d 655 (Tex.App. – San Antonio 2014) ......................... 11
Williams v. State No. S14-1625 (Ga. Mar. 27, 2015) ................................................ 10
Constitutions:
U.S.CONST.amend VI ........................................................................... passim U.S.CONST.amend XIV .............................................................................. 7
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Statutes:
TEX.TRANSP.CODE § 724.015 .................................................................... 3 TEX.TRANSP.CODE § 724.061 ........................................................... 3, 5, 9
Rules:
TEX.R.APP.P. 66.3 ...................................................................................... 2
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No. PD-1428-15
(Court of Appeals No. 02-14-00339-CR)
IN THE
COURT OF CRIMINAL APPEALS OF TEXAS
ANN BUCARO,
Petitioner,
v.
THE STATE OF TEXAS
PETITIONER'S PETITION FOR DISCRETIONARY REVIEW
On discretionary review from the Court of Appeals Second District of Texas at Fort Worth
TO THE COURT OF CRIMINAL APPEALS OF TEXAS:
ANN BUCARO, Petitioner, petitions this Court to grant discretionary review to review the judgment of the Court of Appeals for the Fifth District of Texas affirming her conviction for driving while intoxicated because the court of appeals
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has decided two important questions of law in ways that conflict with applicable decisions of other Texas courts of appeal, of this Court and of the Supreme Court of the United States. See TEX.R.APP.P. 66.3.
STATEMENT REGARDING ORAL ARGUMENT Ms. Bucaro believes that oral argument will be helpful to the Court in resolving the grounds for review because of the nature of the issues presented in the grounds for review.
STATEMENT OF THE CASE
This is an appeal from a conviction for driving while intoxicated.1 The grounds for review relate to the trial court’s failure to suppress the admission of the breath specimens given to the arresting officer by Ms. Bucaro.
STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE The court of appeals affirmed Ms. Bucaro’s conviction on 27 August 2015 in a Memorandum Opinion on Rehearing. Bucaro v. State, No. 02-14-00339-CR, Tex.App. – Fort Worth 27 August 2015, unpublished.2 A timely-filed motion for rehearing was denied on 8 October 2015.3
1 Clerk’s Record (CR) 35-36 (Judgment of Community Supervision).
2 A copy of that opinion is appended hereto as Appendix A, pp. 16-25, infra.
3 A copy of the Order denying the motion for rehearing is appended to this petition as Appendix B, p. 27, infra.
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GROUNDS FOR REVIEW
1. Whether the portion of the Texas Transportation Code that permits the introduction into evidence at a person’s trial of that person’s refusal to provide a specimen of breath or blood at the request of the arresting officer (§ 724.061) violates the Fourth Amendment to the Constitution of the United States. CR 21-23, 25-27, 30; RR 29-31, 36-37.
2. Whether consent obtained under the Implied Consent Law satisfies the requirement of consent under the Fourth Amendment.
CR 21-23. 25-27, 30; RR 29-31, 36-37.
ARGUMENT
RELEVANT FACTS
Ms. Bucaro was arrested for driving while intoxicated and was then transported to jail. At the jail the arresting officer provided Ms. Bucaro with a DIC-24 form4 and asked her to follow along as he read it to her. Thereafter, the arresting officer three times asked Ms. Bucaro if she understood the warnings, to which she relied that she did not. Eventually, the officer repeated the second paragraph of the form and explained to her “that he was gong to ask her for a breath specimen and she needed to understand that ‘if [she] says no, they can use it against her in court and [her] license will be suspended for not less than six months.” The officer again read the DIC-24, requested that Ms. Bucaro provide breath specimens, which she did. Bucaro v. State, supra, slip op. 3-4.
The officer testified that Ms. Bucaro’s consent was freely and voluntarily given, that he did not coerce, force, threaten or intimidate her in connection with
4 The DIC-24 form is the standard form used by the Texas Department of Public Safety to admonish persons arrested for driving while intoxicated of the warnings required by the Texas Transportation Code. TEX.TRANSP.CODE § 724.015.
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obtaining the breath specimens. Id.
Ms. Bucaro testified that she thought she had no option but to provide the specimens because if she refused she would lose her driver’s license which would cost her her job. Id.
Ms. Bucaro filed a pretrial motion to suppress evidence in which she challenged the seizure of the specimens of her breath on various grounds, including the Fourth Amendment to the Constitution of the United States. CR 13-32. Following a hearing on the motion it was denied. The trial court’s conclusions of law addressed Fifth and Sixth Amendment issues, but not the Fourth Amendment issues raised by Ms. Bucaro. The trial court impliedly concluded that reading of the Implied Consent Law warnings provided a basis for finding consent under the Fourth Amendment.
The gist of Ms. Bucaro’s Fourth Amendment argument was that the officer’s request for a breath specimen amounted to a request for consent to a warrantless seizure of Ms. Bucaro’s breath; that the seizure of Ms Bucaro’s breath is protected by the Fourth Amendment; that Ms. Bucaro’s “consent” was not obtained freely and voluntarily because it was the product of the coercive threats contained in the DIC-24 warnings, i.e., that if she did not provide the breath specimen she would lose her driver’s license and her refusal could be used against her at her trial; and that the mere reading of the Implied Consent Law warnings could not suffice to establish consent within the meaning of the Fourth Amendment (and thus the State had failed to sustain
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its burden of proving that Ms. Bucaro’s consent was freely and voluntarily given).5
1. Whether the portion of the Texas Transportation Code that permits the introduction into evidence at a person’s trial of that person’s refusal to provide a specimen of breath or blood at the request of the arresting officer (§ 724.061) violates the Fourth Amendment to the Constitution of the United States.
HOW THE COURT OF APPEALS DECIDED GROUND FOR REVIEW NO. 1 Ms. Bucaro argued that the portion of the Implied Consent Law authorizing the admissibility as evidence at a person’s trial of a refusal to provide a specimen of breath for alcohol content testing purposes violates the Fourth Amendment’s protection against unreasonable seizures because the use by a prosecutor of a citizen’s refusal to consent to a seizure protected by the Fourth Amendment “would erode the protection” guaranteed by the Fourth Amendment.6 She argued that taking a breath specimen from a person arrested for driving while intoxicated is protected by the Fourth Amendment and requires either a warrant or proof of the existence of an exception to the requirement of a warrant. In this case the State relied on the consent exception to the requirement of a warrant. Because the Fourth Amendment provides citizens with the absolute right to refuse to consent to warrantless searches and seizures, an exercise of that right may not be used as evidence against them at a trial.7 The court of appeals did not acknowledge that consent to provide a specimen of breath is protected by the Fourth Amendment, but did acknowledge that consent
5 CR 17-23, 25-27, 30; Reporter’s Record (RR) 30-31, 36-37.
6 Appellant’s Brief 19-22, 25-27.
7 Id. at 10-12, 19-23, 25-27.
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to provide a specimen of breath must be tested by Fienen v. State, 390 S.W.2d 328 (Tex.Crim.App.2012), which adopted the standard required by the Fourth Amendment for establishing consent to provide a breath specimen.8 The court then concluded that because the arresting officer read Ms. Bucaro the warnings required by the Implied Consent Law, Ms. Bucaro’s consent was voluntary and, citing Fienen, held that Ms. Bucaro’s consent did not violate the Fourth Amendment.9 The court ignored Ms.. Bucaro’s argument and supporting cases that the Fourth Amendment protects citizens from having the exercise of the right to refuse to consent to a warrantless seizure used as evidence of guilt at trial.
WHY THIS COURT SHOULD GRANT DISCRETIONARY REVIEW The Fourth Amendment protects citizens against the use as evidence against them of illegally seized evidence. To the extent the Implied Consent Law permits the use against a person arrested for driving while intoxicated of his refusal to provide the arresting officer with a specimen of breath for alcohol content testing, that law violates the Fourth Amendment.
In Missouri v. McNeely, 569 U.S. ___, 133 S.Ct. 1552 (2013), the Supreme Court declared that the taking of blood from a person arrested for driving while intoxicated is protected by the Fourth Amendment. Any bodily intrusion, whether for blood or breath, is a search within the meaning of the Fourth Amendment for which a warrant or an applicable exception is required. McNeely, supra; Skinner v. Railway
8 Bucaro v. State, supra, slip op. 7 9 Id. at 7-9.
7
Labor Executives’ Association, 489 U.S. 602, 614, 109 S.Ct, 1402, 103 L.Ed.2d 639 (1989).
No warrant was obtained to search for or seize Ms. Bucaro’s breath. The exception to the warrant requirement on which the State relied in this case, and on which the court of appeals decided the case, was consent.10 A person has the absolute right to refuse to consent to an officer’s request for a warrantless search or seizure. Camara v. Municipal Court of the City and County of San Francisco, 387 U.S. 523, 533-34, 87 S.Ct,. 1727, 18 L.Ed.2d 930 (1967) (“we therefore conclude that appellant had a constitutional right to insist that the inspectors obtain a warrant to search”); District of Columbia v. Little, 339 U.S. 1, 7, 70 S.Ct. 468. 94 L.Ed. 2d 599 (1950) (holding that persons have the right to refuse requests of public officials to enter their homes without a warrant); see also Reeves v. State, 969 S.W.2d 471, 493 (Tex.App. – Waco 1998, pet.ref’d) (holding that a person has the right to refuse to consent to searches of his home).
The exercise of constitutional rights may not be used as evidence of guilt lest there be a deprivation of fundamental fairness and due process as guaranteed by the Fourteenth Amendment. Doyle v. Ohio, 426 U.S. 610, 618, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976) (holding that an accused’s exercise of his Sixth Amendment right to remain silent following arrest may not be used at his trial to impeach him). With respect to the assertion of Fourth Amendment rights, numerous courts have held that a citizen’s refusal to consent to a request by an officer to conduct a warrantless search
10 Id. at 6-9.
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or seizure may not be used as evidence without imposing an unfair and impermissible burden on the assertion of the right. United States v. Clariot, 655 F.3d 550, 555 (6th Cir.2011) (“The exercise of a constitutional right, whether to refuse to consent to a search, to refuse to waive Miranda rights or to decline to testify at trial, is not evidence of guilt”); United States v. Runyon, 290 F.3d 223, 249 (5th Cir.2002) (the other circuit courts that have addressed the “question whether a prosecutor commits constitutional error by invoking a defendant’s refusal to consent to a warrantless search to support an inference of guilt” have “unanimously held that a defendant’s refusal to consent to a warrantless search may not be presented as evidence of guilt”); United States v. Moreno, 233 F.3d 937, 940-41 (7th Cir.2000) (because the Fourth Amendment entitled the defendants to withhold their consent to a search of their residence, proof of that refusal is not admissible as evidence of guilt); United States v. Thame, 846 F.2d 200, 206 (3rd Cir.1988) (“[I]t was error for the prosecutor to argue that [the accused’s] reliance on his fourth amendment rights constituted evidence of his guilt”); United States v. Prescott, 581 F.2d 1343 (9th Cir.1978) (evidence that the accused refused to permit the police to enter her apartment without a warrant was constitutionally protected conduct which should not have been considered as evidence of the offense charged); Reeves v. State, 969 S.W.2d 471 (Tex.App. – Waco 1998, pet.ref’d) (“To allow the use of one’s refusal to consent to entry into his home without a warrant would be to impose a penalty for exercising a constitutional right”); Powell v. State, 660 S.W.2d 842, 845 (Tex.App. – El Paso 1983, no pet.) (“The invocation of constitutional rights such as assistance of counsel,
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silence, or freedom from unreasonable searches may not be relied upon as evidence of guilt. To permit the use of such evidence for purposes of incrimination would erode the protections guaranteed by both state and federal constitutions”).11 Section 724.061 plainly states that “a persons’s refusal of a request by an officer to submit to the taking of a specimen of breath or blood . . . may be introduced into evidence at the person’s trial.” That statute clearly violates the holdings in the cases which forbid the use of an invocation of Fourth Amendment rights as evidence of guilt. Section 724.061 impermissibly chills the assertion of a constitutional right by penalizing those who choose to exercise their Fourth Amendment rights. It is, therefore, unconstitutional as a matter of law, and as applied in this case. To the extent the court of appeals relied upon “consent” as the basis for upholding the trial court’s denial of Ms. Bucaro’s motion to suppress, this Court should grant discretionary review to correct that error.
2. Whether consent obtained under the Implied Consent Law satisfies the requirement of consent under the Fourth Amendment.
CR 21-23. 25-27, 30; RR 29-31, 36-37.
HOW THE COURT OF APPEALS DECIDED GROUND FOR REVIEW NO. 2 Ms. Bucaro argued that because the taking of a specimen of breath from a person arrested for driving while intoxicated is protected by the Fourth Amendment and requires either a warrant or proof of an exception to the requirement of a warrant, that taking amounts to a consent to a warrantless search or seizure. As such, the consent must be tested by the Fourth Amendment standard. She further argued the
11 See People v. Pollard, 307 P.3d 1124 (Colo.App.2013), for a collection of state cases holding that the exercise of Fourth Amendment rights cannot be used as evidence of guilt.
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mere compliance with the Implied Consent Law does not satisfy the Fourth Amendment requirement of consent.12 The court of appeals began with the observation that “[a]ny person arrested for DWI is deemed to have given consent to submit to providing a specimen of breath or blood for determining alcohol concentration or the presence of a controlled substance.” Bucaro v. State, supra, slip op. 6. The court then conducted an analysis using state decisional law and concluded that the warnings required by the Implied Consent Law suffice to satisfy the Fourth Amendment’s requirement of consent. Id. at 9.
WHY THIS COURT SHOULD GRANT DISCRETIONARY REVIEW The Supreme Court of Georgia recently determined that mere compliance with Georgia’s statutory implied consent request does not satisfy the burden of establishing free and voluntary consent under Fourth Amendment standards. Williams v. State, No. S14A1625 (Ga. Mar. 27, 2015). That court’s rationale began with the recognition that searches involving intrusions beyond the body’s surface are protected by the Fourth Amendment. Thus, when warrantless seizures of breath or blood occur based on consent, it is essential that the State demonstrate actual consent as required by the Fourth Amendment. Id. at 9-10. What is required to show consent under the Fourth Amendment is an examination of the totality of the circumstances to determine that the consent was voluntarily and freely given, and was not the product of coercion or mere acquiescence to authority. The Williams court concluded
12 Appellant’s Brief 12, 23; Appellant’s Supplemental and Reply Brief, 3-7.
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that proof of Fourth Amendment consent cannot be established by merely showing that the accused acquiesced to a request made pursuant to the implied consent law. Id. at 11-12.
Although no Texas court has reached the same precise conclusion as Williams, Texas courts of appeals have recognized that the Texas Implied Consent Law does not create an exception to the Fourth Amendment and that warrantless seizures of bodily substances must be supported by facts that establish an exception to the Fourth Amendment’s warrant requirement. In Weems v. State, the San Antonio court of appeals observed:
We agree with both the Amarillo and the Corpus Christi Courts of Appeals that the implied consent and mandatory blood draw statutes are not exceptions to the Fourth Amendment’s warrant requirement. . . .
McNeely, however, clearly proscribed what it labeled as categorical or per se rules for warrantless blood testing, emphasizing over and over again that the reasonableness of a search must be judge based on the totality of the circumstances presented in each case. See McNeely, 133 S.Ct. At 156-63. Texas’s implied consent and mandatory blood draw statutes clearly create such categories or per se rules that the Supreme Court proscribed in McNeely. See TEX.TRANSP.CODE §§ 724.011(a), 724.012(b). These statutes do not take into account the totality of the circumstances present in each case, but only consider certain facts. See id. Thus, we hold that the implied consent and mandatory blood draw statutory scheme found in the Transportation Code are not exceptions to the warrant requirement under the Fourth Amendment, To be authorized, the State’s warrantless blood draw of Weems must be based on a well-recognized exception to the Fourth Amendment.
Weems v. State, 434 S.W.3d 655, 665 (Tex.App. – San Antonio 2014, pet.filed).
Texas courts of appeals have also declined to hold that “implied consent under the [Implied Consent Law] is the equivalent to voluntary consent as a recognized exception to the warrant requirement” because “mere acquiescence to a claim of
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lawful authority does not discharge the burden imposed upon the State to show that the suspect freely and voluntarily consented.” Forsyth v. State, 438 S.W.3d 216, 223 (Tex.App. – Eastland 2014, pet.ref’d). See also Gore v. State, No. 01-13-00608-CR (Tex.App. – Houston [1st Dist.] Nov. 13, 2014, pet.filed).
There are numerous reasons why implied consent cannot satisfy the requirement of actual consent required by the Fourth Amendment. Consent given in response to a claim of authority or based on fraud is not valid. Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 75 L.Ed. 229 (1983); Bumper v. North Carolina, 391 U.S. 543, 548-50, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). The use of implied consent to uphold a seizure of a bodily substance does not permit consideration of whether the implied consent was a result of “mere acquiescence” to a claim of authority. See State v. Kelly, 204 S.W.3d 808 (Tex.Crim.App. 2006); Forsyth v. State, supra. Consent that is coerced by duress is not valid. Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967). The Implied Consent Law warning that if a person does not consent to provide a specimen of breath he will lose his driving privileges can be incredibly coercive to the extent that the individual whose license is at stake may have to rely upon his driving privileges for his income. As stated in Burson v. Bell, 402 U.S. 505, 539, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971), “[o]nce licenses are issued . . . their continued possession may become essential in the pursuit of a livelihood.” To say that the Implied Consent Law warnings suffice to establish consent under the Fourth Amendment precludes consideration of the constitutional issue resolved in Garrity - that a person’s livelihood cannot hinge on
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his waiver of a constitutional right. Third, the admonition contained in the Implied Consent that a refusal to provide the requested specimen can be used as evidence of guilt violates the notion that the exercise of a constitutional right cannot be used as evidence of guilt. See infra, 7-9.
Implied consent has no basis within the context of Fourth Amendment rights.
By its terms, implied consent is not express consent. The Implied Consent Law warnings do not contain the word “consent”; thus, a person who is alleged to have “consented” has not been asked for his consent and likely has not affirmatively given consent. In the case of the Implied Consent Law warnings, a police officer “requests” persons arrested for driving while intoxicated to provide specimens of their breath or blood. Prior to the request for a specimen being made, the Implied Consent Law warnings do not require that the person be advised of his rights under the Fourth Amendment.
For the foregoing reasons this Court should grant discretionary review to resolve the conflict between the courts of appeals in this State regarding whether “implied consent” can satisfy the Fourth Amendment requirement of consent in the context of obtaining breath specimens from persons arrested for driving while intoxicated.
PRAYER FOR RELIEF
For the foregoing reasons Ms. Bucaro prays that this Court grant discretionary review to review the decision of the court of appeals in this case.
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Respectfully submitted,
/s/ Melvyn Carson Bruder
MELVYN CARSON BRUDER 03241000
516 Turley Law Center
6440 North Central Expressway Dallas, Texas 75206
214.987.3500
214.987.3518 FAX
melvyn@melvynbruderlaw.com
Counsel for the Petitioner
CERTIFICATE OF SERVICE
I certify that on 9 December 2015 a true and correct copy of the foregoing Petitioner’s Petition for Discretionary Review was served upon counsel for the State of Texas in this case and upon the State Prosecuting Attorney via first class United States mail, postage prepaid, in Dallas, Texas.
/s/ Melvyn Carson Bruder
MELVYN CARSON BRUDER
CERTIFICATE OF COMPLIANCE
I certify that this petition (including the opinion of the court of appeals)
contains 4277 words based on the word count of the Word Perfect X5 program used to prepare the petition.
/s/ Melvyn Carson Bruder
MELVYN CARSON BRUDER
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APPENDIX A OPINION IN BUCARO v. STATE
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APPENDIX B
ORDER DENYING REHEARING IN BUCARO v. STATE