PD-1234-15 PD-1234-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 9/18/2015 3:54:10 PM Accepted 9/22/2015 12:26:12 PM No. PD- -15 ABEL ACOSTA CLERK (Court of Appeals No. 05-14-00483-CR)
IN THE
COURT OF CRIMINAL APPEALS
OF TEXAS
JUSTIN COOK,
Petitioner, v.
THE STATE OF TEXAS
PETITIONER'S PETITION FOR DISCRETIONARY REVIEW
On discretionary review from the Court of Appeals Fifth District of Texas at Dallas
MELVYN CARSON BRUDER
516 Turley Law Center 6440 N. Central Expressway Dallas, Texas 75206 214.987.3500 September 22, 2015 214.987.3518 Telecopier
Counsel for Petitioner IDENTITY OF JUDGE, PARTIES, AND COUNSEL
The trial court judge in this case was Peggy Hoffman.
The parties to the judgment in this case are Steven Lynn Jones and the State of Texas.
The names and addresses of all trial and appellate counsel are:
Blake Penfield Assistant Criminal District Attorney Frank Crowley Courts Building 133 N. Riverfront Boulevard Dallas, TX 75207
Trial Counsel for the State of Texas
Melvyn Carson Bruder 516 Turley Law Center 6440 N. Central Expressway Dallas, TX 75206
Trial Counsel for Mr. Cook
Larissa Roeder Assistant Criminal District Attorney Frank Crowley Courts Building 133 N. Riverfront Boulevard Dallas, TX 75207
Appellate Counsel for the State of Texas
Melvyn Carson Bruder 516 Turley Law Center 6440 N. Central Expressway Dallas, TX 75206
Appellate Counsel for Mr. Cook
-i- 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. The court of appeals erred by failing to examine the impact of Implied Consent Law warnings on the accused and by concluding that an accused’s “implied consent” is sufficient to satisfy the Fourth Amendment’s requirement of consent.
2. The court of appeals improperly shifted the burden of proving the voluntariness of consent to a warrantless seizure protected by the Fourth Amendment from the State to the accused.
Relevant Facts ....................................................................................................... 3
The Court of Appeals’ Decision ........................................................................... 4
Argument
Ground for Review No. 1 ........................................................................... 5
Ground for Review No. 2 ........................................................................... 9
Prayer for Relief .................................................................................................. 12
Certificate of Service ........................................................................................... 12
Certificate of Compliance ................................................................................... 13
Appendix A - Opinion of the Court of Appeals in Cook v. State ...................... 14
-ii- Appendix B - Order Denying Motion for Rehearing in Cook v. State ............ 21
-iii- INDEX OF AUTHORITIES
Cases:
Allridge v. State 850 S.W.2d 471 (Tex. Crim. App. 1991) ........................................ 6
Bumper v. North Carolina 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968) ..................... 6
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) ..................... 8
Cook v. State No. 04-14-00483-CR (Tex.App. – Dallas, June 9, 2015) ..... passim
Coolidge v. New Hampshire 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) ................... 10
District of Columbia v. Little 339 U.S. 1, 70 S.Ct. 468, 94 L.Ed. 599 (1950) ............................... 8
Doyle v. Ohio 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976) ................... 8, 9
Fienen v. State 390 S.W.3d 328 (Tex. Crim. App. 2012) ............................... 5, 6, 10
Florida v. Jimenez 500 U.S. 248, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991) ................. 6
Florida v. Royer 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) ................... 6
Garrity v. New Jersey 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967) ................... 7, 8
Miranda v. Arizona 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d 694 (1966) .................... 9
Missouri v. McNeely ___ U.S. ____, 133 S.Ct. 1552, ___ L.Ed.2d (2013) ...................... 5
-iv- Powell v. State 660 S.W.2d 842 (Tex.App. – El Paso 1983) ................................... 9
Reeves v. State 969 S.w.2d 223 (Tex.App. – Waco 1998) ................................... 8, 9
Schneckloth v. Bustamonte 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) ............... 5, 10
See v. Seattle 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (11967) ................... 8
Skinner v. Ry. Labor Executives’ Assn 489 U.S. 602, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989) ................. 5
United States v. Runyon 290 F.3d 223 (5th Cir. 2002) ........................................................... 8
Weaver v. State 349 S.W.3d 521 (Tex. Crim. App. 2011) ................................... 6, 10
Constitutions:
U.S.CONST.amend IV ........................................................................ passim
Statutes:
TEX.TRANSP.CODE ch. 724 ........................................................................ 3 TEX.TRANSP.CODE § 724.015(1) and (2) .................................................. 7
Rules:
TEX.R.APP.P. 66.3(b) and (c) ..................................................................... 2
-v- No. PD- -15
(Court of Appeals No. 05-14-00483-CR)
On discretionary review from the Court of Appeals Fifth District of Texas at Dallas
TO THE COURT OF CRIMINAL APPEALS OF TEXAS:
JUSTIN COOK, Petitioner, petitions this Court to grant discretionary review
to review the judgment of the Court of Appeals for the Fifth District of Texas
affirming his conviction for driving while intoxicated because the court of appeals has decided important questions of law in a way that conflicts with applicable
decisions of this Court and of the Supreme Court of the United States, and has
decided an important question of state or federal law that has not been, but should be.
Settled by this Court. See TEX.R.APP.P. 66.3(b) and (c).
In particular, the court of appeals concluded that the reading of the Implied
Consent Law warnings to a DWI suspect is sufficient to establish actual consent to
a warrantless seizure under the Fourth Amendment. Additionally, the court of
appeals shifted the burden of proving voluntariness of consent to a warrantless
seizure protected by the Fourth Amendment from the State to the accused.
STATEMENT REGARDING ORAL ARGUMENT
Mr. Cook 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 ground for
review.
STATEMENT OF THE CASE
This is an appeal from a conviction for driving while intoxicated. Clerk’s
Record (CR) 12. The grounds for review in this case involve matters raised by a
pretrial motion to suppress evidence in which Mr. Cook challenged the admissibility
of a breath specimen he provided to law enforcement following his arrest.
STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE
The court of appeals affirmed Mr. Cook’s conviction on 9 June 2015. Cook v.
State, No. 05-14-00483-CR, Tex.App. – Dallas, June 9, 2015, unpublished.1 A
1 A copy of that opinion is appended hereto as Appendix A.
-2- timely-filed motion for rehearing2 was denied on 18 August 2015.3
GROUNDS FOR REVIEW
1. The court of appeals erred by failing to examine the impact of Implied Consent Law warnings on the accused and by concluding that an accused’s “implied consent” is sufficient to satisfy the Fourth Amendment’s requirement of consent.
2. The court of appeals improperly shifted the burden of proving the voluntariness of consent to a warrantless seizure protected by the Fourth Amendment from the State to the accused.
RELEVANT FACTS
Mr. Cook was arrested for driving while intoxicated following a traffic stop.
He was transported to the Richardson jail where the arresting officer read the
warnings contained in the Implied Consent Law.4 Reporter’s Record (RR) 10. In
particular, Mr. Cook was advised that a specimen of his breath or blood would be
requested for alcohol-content testing purposes, and that if he refused to provide the
requested specimen (1) his refusal could be used against him at his trial, and (2) his
driver’s license or driving privileges would be suspended.5 Following the reading
of those warnings Mr. Cook agreed to provide specimens of his breath. RR 12.
Mr. Cook challenged the voluntariness of his decision to provide the breath
2 The Petitioner filed his motion for rehearing on 20 July 2015 pursuant to an extension granted by the court of appeals. 3 A copy of the order denying the motion for rehearing is appended to this petition as Appendix B. 4 TEX.TRANSP.CODE ch. 724. 5 See State’s Exhibit No. 1, RR 26, which is a recording of the events that occurred prior to and after Mr. Cook’s arrest, including the reading to Mr. Cook of the implied consent law warnings.
-3- specimens.6 The trial court denied the motion. Mr. Cook later pleaded guilty,
reserving his right to appeal from the denial of the motion. CR 11.
On appeal Mr. Cook argued that an agreement to provide the breath specimens
in response to the Implied Consent Law was a Fourth Amendment seizure, that the
record did not establish Mr. Cook voluntarily consented to provide the specimens of
his breath, had that the State had failed to sustain its burden of proving voluntariness
of Mr. Cook’s consent.7
THE COURT OF APPEALS’ DECISION
The court of appeals held that the arresting officer did not threaten, intimidate,
coerce, or use any type of force to secure Mr. Cook’s consent to provide the breath
specimens.8 Cook v. State, supra, slip op. 5. The court also held that there is no
evidence that the reading of the Implied Consent Law warnings had any impact on
Mr. Cook’s “decision to consent to providing the breath specimen.” Id. at 6. Based
on the foregoing, the court concluded that the totality of the circumstances amply
demonstrated that Mr. Cook voluntarily consented to provide the breath specimen.
Id. at 7.
6 See RR 12, where Mr. Cook objected to the officer’s characterization of Mr. Cook’s decision to provide the breath specimens as “voluntary”; RR 21-23, where Mr. Cook argued that a decision to provide a breath specimen is a matter of consent which requires evidence of voluntariness. 7 Appellant’s Brief 9-15; Appellant’s Supplemental and Reply Brief 3-9. 8 The court of appeals stated Mr. Cook did not argue that the arresting officer “threatened, intimidated, coerced, or used any type of force to secure Mr. Cook’s consent to provide the breath specimen.” Cook v. State, supra, slip op. 5. Mr. Cook’s briefs unquestionably raised issues that Mr. Cook’s decision to provide specimens of his breath was the product of coercion based on the threat to suspend Mr. Cook’s driver’s license and the threat to use his refusal against him as evidence. To the extent, and only to the extent, the court of appeals was referring to physical coercion the foregoing observation by the court of appeals is correct.
-4- Mr. Cook filed a Motion for Rehearing in which he asserted the court failed to
address the merits of his argument that the State did not meet its burden under the
Fourth Amendment to show Mr. Cook voluntarily consented to provide the breath
specimens, and Mr. Cook argued the court erroneously concluded that “implied
consent,” i.e., an agreement to provide specimens under the Implied Consent Law,
does not satisfy the State’s burden of establishing Fourth Amendment “actual
consent.” Appellant’s Motion for Rehearing 3-5, Cook v. State, supra. The motion
was overruled without opinion or comment.
GROUND FOR REVIEW NO. 1
The court of appeals erred by failing to examine the impact of Implied Consent Law warnings on the accused and by concluding that an accused’s “implied consent” is sufficient to satisfy the Fourth Amendment’s requirement of consent.
The taking of a specimen of blood or breath from a DWI suspect for the
purpose of alcohol-content testing is protected by the Fourth Amendment. Missouri
v. McNeely, ___ U.S. ___, 133 S.Ct. 1552, ___ L.Ed.2d (2013); Skinner v. Ry. Labor
Executives’ Assn., 489 U.S. 602, 616-17, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989).
Thus, when a person arrested for DWI is asked by a law enforcement official to
provide a specimen of breath or blood for alcohol-content testing purposes, that
person is being asked to consent to a seizure protected by the Fourth Amendment.
When the State relies on the consent exception to the Fourth Amendment’s
warrant requirement, the State must establish by clear and convincing evidence that
the consent was voluntary. Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S.Ct.
-5- 2041, 36 L.Ed.2d 854 (1973); Fienen v. State, 390 S.W.3d 328, 333 (Tex. Crim. App.
2012); Weaver v. State, 349 S.W.3d 521, 526 Tex. Crim. App. 2011). Consent is not
voluntarily unless it is shown to have been freely given, and not the result of duress
or coercion, express or implied, physical or psychological. Schneckloth v.
Bistamonte, supra, 412 U.S. at 222-23. Consent must be positive and unequivocal.
Allridge v. State, 850 S.W.2d 471, 493 (Tex. Crim. App. 1991). Mere acquiescence
or submission to a police officer’s claim of right under color of law or fraudulent
representation cannot provide consent to a warrantless search or seizure. Bumper v.
North Carolina, 391 U.S. 543, 549, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968).
Voluntariness of consent is to be determined from the totality of circumstances
from the point of view of an objectively reasonable person. Florida v. Jimenez, 500
U.S. 248, 251, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991); Florida v. Royer, 460 U.S.
491, 497, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983); Fienen v. State, supra, 390 S.W.3d
at 333.
The court of appeals concluded that the reading of the Implied Consent Law
warnings to Mr. Cook satisfied the State’s burden of proving the voluntariness of Mr.
Cook’s consent to providing the specimens of his breath. Cook v. State, supra, slip
op. 7. The court did not consider the effect of the Implied Consent Law warnings on
Mr. Cook from his perspective. Thus, the court essentially held that Mr. Cook’s
“implied consent,” that is his agreement to provide breath specimens after being read
the Implied Consent Law warnings, satisfied the State’s burden of proving consent
under the Fourth Amendment. This conclusion is wrong for several reasons.
-6- The court of appeals failed to consider the effect of the consequences contained
in the Implied Consent Law warnings. Consistent with the requirement of the
Implied Consent Law, Mr. Cook was advised that if he refused to provide the
requested specimens (1) his refusal may be admissible in a subsequent prosecution,
and (2) that his refusal would result in automatic suspension of a person’s license to
operate a motor vehicle. TEX.TRANSP.CODE § 724.015(1) and (2). Because
voluntariness of consent must be assessed from the point of view of an objectively
reasonable person, it is essential that a court consider the effect of the admonition of
those consequences in order to determine the voluntariness of consent. The court of
appeals failed to perform that analysis, relying instead on the conclusion that “implied
consent” under the Implied Consent Law equates to actual, voluntary consent as
required by the Fourth Amendment.
Admonishing an accused that he will lose his driver’s license if he refuses to
provide a specimen of breath unquestionably impacts a decision that person makes
with respect to providing a specimen. As stated in Garrity v. New Jersey, 385 U.S.
493, 497, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967), “[w]here the choice is ‘between the
rock and the whirlpool,’ duress is inherent in making the choice.” A choice of
whether to provide breath specimens or lose a driver’s license is “the antithesis of
[the] free choice” contemplated by the Fourth Amendment’s requirement of
voluntariness. Id. The question is not whether a choice was given and made; rather,
the issue is whether the choice was made under duress. Because driver’s licenses are
often essential in the pursuit of a person’s livelihood, the suspension of those licenses
-7- involves state action that adjudicates important interests of licensees. The threat to
suspend Mr. Cook’s driver’s license if he did not provide the requested specimens
was identical to the decision facing Mr. Garrity; surrender a constitutional right in
order to secure a state-conferred privilege. For the reasons stated in Garrity, the
constitutional dilemma confronting Mr. Cook requires an examination of the effect
of the threat to take Mr. Cook’s driver’s license under the principles announced in
Garrity.
Similarly, admonishing an accused that his refusal to consent to a warrantless
seizure of his breath if he refuses to provide a specimen of breath unquestionably
impacts any decision that person makes with respect to providing a specimen.
Citizens have the right to refuse to consent to requests by law enforcement officials
for warrantless seizures. See v. Seattle, 387 U.S. 541, 545-46, 87 S.Ct. 1737, 18
L.Ed.2d 943, (1967); Camara v. Municipal Court of the City and County of San
Francisco, 387 U.S. 523, 539, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967); see District of
Columbia v. Little, 339 U.S. 1, 6-8, 70 S.Ct. 468, 94 L.Ed.2d 599 (1950). A person’s
choice not to consent to a warrantless seizure cannot be used as substantive evidence
against that person without improperly penalizing the person for his exercise of his
Fourth Amendment rights. United States v. Runyon, 290 F.3d 223, 249 (5th Cir.
2002). As stated in Reeves v. State, 969 S.W.2d 471, 495-97 (Tex.App. – Waco 1998,
pet.ref’d), “[t]he invocation of constitutional rights such as assistance of counsel,
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
-8- erode the protections guaranteed by both state and federal constitutions.”9 See also
Powell v. State, 660 S.W.2d 842, 845 (Tex.App. – El Paso 1983, no pet.). Moreover,
the probative value of such evidence is minimal inasmuch a person’s exercise of a
constitutional right may be nothing more than the person’s exercise of the right and
thus not have any probative value. Doyle v. Ohio, 426 U.S. 610, 617, 96 S.Ct. 2240,
49 L.Ed.2d 91 (1976); Reeves v. State, supra, 969 S.W.2d at 495.
“Implied consent” does not equate to Fourth Amendment consent. Implied
consent refers to the consent a person gives to provide a specimen of breath or blood
at the time a law enforcement officer invokes the Implied Consent Law. Consent
under the Fourth Amendment, on the other hand, refers to consent shown by the
totality of the circumstances to have been given voluntarily from the perspective of
a reasonably objective person. Fourth Amendment consent requires proof of more
than the mere fact that the accused provided “implied consent.”
The court of appeals failed to address whether Mr. Cook gave actual, Fourth
Amendment consent to the procuring and testing of his breath, ignored Mr. Cook’s
argument relating to the coercive effect of the Implied Consent Law warnings, and
relied instead on the notion that “implied consent” suffices to establish actual Fourth
Amendment consent.
9 The exercise of other constitutionally protected rights, such as the right to counsel and the right to silence, may not be used as substantive evidence of guilt. See Doyle v. Ohio, 426 U.S. 610, 617, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976); Miranda v. Arizona, 384 U.S. 436, 467, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
-9- GROUND FOR REVIEW NO. 2
The court of appeals improperly shifted the burden of proving the voluntariness of consent to a warrantless seizure protected by the Fourth Amendment from the State to the accused.
The burden is on the State to prove the existence of an exception to Fourth
Amendment requirement of a warrant. Coolidge v. New Hampshire, 403 U.S. 443,
455, 91 S.Ct. 2022, 29 L.Ed.2d 564 1971). In the context of consent to a warrantless
seizure, the State bears the burden off proving the consent was voluntary.
Schneckloth v. Bustamonte, supra, 412 U.S. at 222 (‘[w]hen a prosecutor seeks to rely
upon consent to justify the lawfulness of a search, he has the burden of proving that
the consent was, in fact, freely and voluntarily given”); see also Fienen v. State,
supra, 390 S.W.3d at 333; Weaver v. State, supra, 349 S.W.3d at 526.
The record in this case shows that the arresting officer read Mr. Cook the
Implied Consent Law warnings and that Mr. Cook thereafter agreed to provide the
requested breath specimens. No other evidence was adduced relating to the
voluntariness of Mr. Cook’s decision to provide the requested specimens.
While it is true that “the record in this case does not show . . . that [the arresting
officer] threatened, intimidated, coerced, or used any type of force to secure [Mr.
Cook’s] consent to provide the breath specimens,” Cook v. State, supra, slip op. at 5,
Mr. Cook was not obliged to produce evidence of involuntariness of consent. He is
entitled to rely on the contents of the Implied Consent Law warnings - that his refusal
to provide a specimen would be used against him in court and that his driver’s license
would be suspended - as the threat, intimidation and coercion upon which he based
-10- his decision to provide the specimens.
The State’s burden of proving that Mr. Cook voluntarily consented to provide
the breath specimens cannot be satisfied by proof of the mere fact that Mr. Cook
agreed to provide the specimens pursuant to the Implied Consent Law. Proof of
Fourth Amendment voluntary consent requires an analysis of the circumstances
surrounding the reading of the Implied Consent Law warnings, i.e., was the implied
consent a product of mere acquiescence or submission to a police officer’s claim of
right under color of law, and did the threats contained in the Implied Consent Law
warnings that if he refused to provide the specimens he would lose his driver’s license
and the refusal would be used against him as substantive evidence at his trial for
driving while intoxicated affect Mr. Cook’s decision to provide the specimens. The
reliance by the court of appeals on the lack of evidence to “show . . . that [the
arresting officer] threatened, intimidated, coerced, or used any type of force to secure
[Mr. Cook’s] consent to provide the breath specimens” clearly imposed a burden on
Mr. Cook - burden he was not required to bear. And, the conclusion by the court of
appeals that the mere proof Mr. Cook gave “implied consent” to provide the
specimens relieved the State of its constitutional burden to prove the voluntariness
of consent under the Fourth Amendment.
For the forgoing reasons the court of appeals improperly relieved the State of
its burden of establishing voluntariness of Mr. Cook’s consent to provide the
specimens, and it improperly shifted that burden to Mr. Cook.
-11- PRAYER FOR RELIEF
Mr. Cook prays that this Court grant discretionary review to review the
decision of the court of appeals in this case with respect to that court’s conclusion
that the reading of the Implied Consent Law warnings suffice to establish Fourth
Amendment consent to a warrantless seizure, and conviction, and that court’s
shifting to Mr. Cook of the burden of proof relating to the voluntariness of consent.
Respectfully submitted,
/s/ Melvyn Carson Bruder
TSBN 03241000 6440 North Central Expressway 516 Turley Law Center Dallas, Texas 75206 214.987.3500 214.987.3518 FAX melvyn@melvynbruderlaw.com
Counsel for the Petitioner
CERTIFICATE OF SERVICE
I certify that on 18 September 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 electronic filing and via first class United States mail, postage prepaid, in Dallas, Texas.
-12- CERTIFICATE OF COMPLIANCE
I certify that this petition contains 3855 words based on the word count of the Word Perfect X5 program used to prepare the petition.
-13- APPENDIX A
OPINION OF THE COURT OF APPEALS IN COOK V. STATE
-14- -15- -16- -17- -18- -19- -20- -21- APPENDIX B
ORDER DENYING MOTION FOR REHEARING IN COOK V. STATE
-22- -23-