PD-1423-15
PD-1423-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS
Transmitted 11/5/2015 11:12:53 AM Accepted 11/5/2015 3:03:52 PM ABEL ACOSTA
NO. _____________ PD CLERK
IN THE
COURT OF CRIMINAL
APPEALS
OF TEXAS
___________________________________________
EX PARTE
TULIO WILFREDO ESCOBAR
Petitioner,
_________________________________________________________
Petition in Cause No. 1329944 from the ST
351 District Court of Harris County, Texas and the Court of Appeals for the 1ST District of Texas
_________________________________________________________
PETITION FOR DISCRETIONARY REVIEW
_________________________________________________________
TOM ABBATE
440 LOUISIANA ST, STE 200 HOUSTON, TX 77002
T: 713.223.0404
F: 800.501.3088
tom@tomabbatelaw.com
SBOT # 24072501
November 5, 2015 ATTORNEY FOR PETITIONER
IDENTITIES OF PARTIES AND COUNSEL PETITIONER: MR. TULIO ESCOBAR
PRESIDING JUDGE AT PLEA: HON. SUZANNE STOVALL 351ST District Court
Harris County Criminal Justice Center 1201 Franklin, 14th Floor Houston, Texas 77002
(713) 755-5620
PROSECUTOR AT PLEA: MR. L. BAILY Assistant District Attorney Harris Co District Attorney's Office 1201 Franklin, Suite 600
Houston, Texas 77002
(713) 755-5800
PLEA COUNSEL: MR. RIGOBERTO RODRIGUEZ 2120 S. Wayside
Houston Texas 77023
(713) 921-1144
HABEAS COUNSEL: MR. JUSTIN HARRIS 405 Main St. Ste 450
Houston, Texas 77002
(713) 222-6102
MR. TOM ABBATE
440 Louisiana, Ste 200
Houston, Texas 77002
(713)-223-0404
HABEAS COUNSEL FOR STATE: MS. LISA COLLINS Assistant District Attorney Harris Co District Attorney's Office 1201 Franklin, Suite 600
Houston, Texas 77002
(713) 755-5800
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PRESIDING JUDGE ON HABEAS: HON. MARK KENT ELLIS 351ST District Court
Harris County Criminal Justice Center 1201 Franklin, 14th Floor Houston, Texas 77002
(713) 755-5620
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TABLE OF CONTENTS
IDENTITIES OF PARTIES AND COUNSEL .........................................................2 INDEX OF AUTHORITIES......................................................................................5 STATEMENT REGARDING ORAL ARGUMENT ...............................................7 STATEMENT OF THE CASE ..................................................................................7 STATEMENT OF PROCEDURAL HISTORY........................................................8 QUESTION PRESENTED FOR REVIEW ..............................................................9 REASON FOR REVIEW ..........................................................................................9 PRAYER FOR RELIEF ..........................................................................................16 CERTIFICATE OF SERVICE ................................................................................17 CERTIFICATE OF COMPLIANCE .......................................................................18 APPENDIX ..............................................................................................................18
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INDEX OF AUTHORITIES
Cases Aliff v. State, 627 S.W.2d 166 (Tex. Crim. App. 1982) .......................................................... 10, 11 Arizona v. Gant, 556 U.S. 332 (2009) .......................................................................................... 10 Arreola v. State, 207 S.W.3d 387 (Tex. App.—Houston [1st Dist.] 2006) .................................. 14 Aviles v. State, 04-11-00877-CR (Tex. App.— San Antonio 2014) ............................................. 13 Aviles v. State, 385 S.W.3d 110 (Tex. App.— San Antonio 2012) .................................. 11, 12, 15 Aviles v. Texas, 134 S.Ct. 902 (2014) ............................................................................... 11, 12, 15 Beeman v. State 86 S.W.3d 613 (Tex. Crim. App. 2002) ............................................................. 12 Boykin v. Alabama, 395 U.S. 238 (1969) ..................................................................................... 13 Brady v. United States, 397 U.S. 742 (1970) ................................................................................ 13 Edwards v. State, 921 S.W.2d 477 (Tex. App.—Houston [1st Dist.] 1996) ................................ 14 Ex parte Escobar, 01-15-00154-CR (Tex. App. – Houston [1st Dist.] October 6, 2015) ............. 16 Ex parte Karlson, 282 S.W.3d 118 (Tex. App.—Fort Worth 2009) ............................................ 14 Ex parte Morrow, 952 S.W.2d 530 (Tex. Crim. App. 1997) .................................................. 14, 16 Kniatt v. State, 206 S.W.3d 657 (Tex. Crim. App. 2006) ............................................................. 13 Martinez v. State, 981 S.W.2d 195 (Tex. Crim. App. 1998) ........................................................ 13 Missouri v. McNeely, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013) ....................................... 10, 11, 16 Schmerber v. California, 384 U.S. 757 (1966) ....................................................................... 10, 15 State v. Laird, 38 S.W.3d 707 (Tex. App.—Austin 2000) ........................................................... 11 Walter v. State, 28 S.W.3d 538 (Tex.Crim.App. 2000) ................................................................ 10 Weems v. State, 2014 WL 2532299 .............................................................................................. 13 Wiede v. State, 214 S.W.3d 17 (Tex.Crim.App. 2007) ................................................................. 10 Statutes Tex. Transp. Code Ann. § 724.012 ............................................................................................... 15 Rules TEX. R. APP. P. 44.2.............................................................................................................. 10, 16 Constitutional Provisions U.S. CONST. amend. IV .............................................................................................................. 10
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NO. _____________ PD
IN THE
COURT OF CRIMINAL
APPEALS
OF TEXAS
___________________________________________
EX PARTE
TULIO WILFREDO ESCOBAR
Petitioner,
_________________________________________________________
Petition in Cause No. 1329944 from the ST
351 District Court of Harris County, Texas and the Court of Appeals for the 1ST District of Texas
__________________________________________________________
PETITION OF DISCRETIONARY REIVEW TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS OF TEXAS
Tulio Escobar, petitions the Court to review the judgment affirming The denial of his Application for Writ of Habeas Corpus Pursuant to Article 11.072 of the Texas Code of Criminal Procedure
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STATEMENT REGARDING ORAL ARGUMENT Oral argument would assist to resolve whether the evidence was legally sufficient to support the conviction obtained against the Petitioner in this case.
STATEMENT OF THE CASE
On May 2, 2012, Petitioner pleaded guilty to the third-degree felony offense of driving while intoxicated–third offense. Pursuant to an agreed plea bargain, the trial court assessed Petitioner’s punishment at five years’ confinement in the Institutional Division of the Texas Department of Criminal Justice and ten days’ confinement in the Harris County jail, but suspended confinement and placed Petitioner on community supervision for three years.
On October 6, 2014, the State filed a motion to revoke Petitioner’s community supervision on the grounds that Petitioner violated the terms of his supervision by: (1) driving or operating a motor vehicle while his license was suspended and driving or operating a motor vehicle on two separate occasions without a valid driver’s license, as evidenced by Petitioner’s admission to a polygraph examiner; (2) driving or operating a motor vehicle on two separate occasions without a valid driver’s license, as evidenced by Petitioner’s admission to his community supervision officer; and (3) failing to maintain financial responsibility.
Petitioner filed an application for writ of habeas corpus on November 12, 2014, alleging that: (1) the motion to revoke violated his Fifth Amendment right
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against self-incrimination; (2) his guilty plea was involuntary due to a Fourth Amendment violation; and (3) his plea counsel was ineffective because he allowed Escobar to enter an involuntary plea.
STATEMENT OF PROCEDURAL HISTORY Based on the record and the affidavits submitted, the habeas court found that Petitioner’s plea was voluntary and that Petitioner failed to demonstrate that his Fifth Amendment right against self-incrimination was violated because there was no evidence that Petitioner invoked this right.
The court of appeals rendered its decision affirming Petitioner’s conviction on October 6, 2015. Petitioner did not file a motion for rehearing, and the decision of the court of appeals became its final ruling on October 21, 2015. This petition was then filed with the clerk of the court of appeals within 30 days after such final ruling.
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QUESTION PRESENTED FOR REVIEW
Was Petitioner’s plea involuntary due to the illegality of the seizure in light of Missouri v. McNeely?
REASON FOR REVIEW
The Law Regarding the Fourth Amendment Generally The Fourth Amendment provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause.” U.S. CONST. amend. IV; Wiede v. State, 214 S.W.3d 17, 24 (Tex.Crim.App. 2007). The Supreme Court has held that a warrantless search of the person is reasonable only if it falls within a recognized exception. See United States v. Robinson, 414 U.S. 218, 224 (1973); Arizona v. Gant, 556 U.S. 332, 338 (2009); Walter v. State, 28 S.W.3d 538, 541 (Tex.Crim.App. 2000). Exigent circumstances is one such well- recognized exception. Missouri v. McNeely, 133 S.Ct. 1552, 1562, 185 L.Ed.2d 696 (2013). If an appellate court determines that a defendant’s Fourth Amendment rights were violated, then it must reverse the judgment unless it determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment. TEX. R. APP. P. 44.2(a).
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The Law Regarding Exigent Circumstances and Blood Specimens Obtained Without a Warrant in DWI Investigations The taking of a blood sample is a search and seizure under both the federal and Texas constitutions. Aliff v. State, 627 S.W.2d 166, 169 (Tex. Crim. App. 1982). However, under certain circumstances, a blood sample taken without a warrant is not an unreasonable search and seizure, and therefore comports with constitutional requirements. Schmerber v. California, 384 U.S. 757, 770–71 (1966). Police officers may constitutionally obtain a blood sample without a warrant or consent if they have probable cause, exigent circumstances, and a reasonable method of extraction. Id.; see Aliff, 627 S.W.2d at 169– 70). The fact that alcohol dissipates quickly in the blood has been held to constitute exigent circumstances. Id. at 170 (holding that taking a blood sample from a person under arrest does not violate the constitution when officers have probable cause to arrest because alcohol dissipates from the blood stream at a rapid rate); State v. Laird, 38 S.W.3d 707, 713 (Tex. App.—Austin 2000, pet. ref'd).
The United States Supreme Court recently held, however, that the fact that alcohol rapidly dissipates from the bloodstream does not create a per se exigent circumstance. McNeely, 133 S.Ct. at 1562, 185 L.Ed.2d 696. Instead, the dissipation of alcohol may be a factor, among others, in the exigency analysis under the larger totality of the circumstances test. See id. Specifically, the Court held that the trial
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court should conduct a "careful case-by-case assessment of exigency and ... [that i]n those drunk-driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so." Id. at 1561. The Law Regarding Mandatory Blood Specimens Obtained Without a Warrant in DWI Investigations Further, the mandatory blood draw provision of the Transportation Code has been previously used to justify involuntary, warrantless blood draws. See Aviles v. State, 385 S.W.3d 110, 116 (Tex. App. — San Antonio 2012), vacated, 134 S.Ct. 902 (2014). In that case, the Court of Appeals held that a warrantless blood draw of a DWI suspect that was conducted according to the prescriptions of the Transportation Code did not violate the suspect's rights under the Fourth Amendment. In so holding, it quoted Beeman v. State for the proposition that the implied consent law allows officers to draw blood "in certain limited circumstances even without a search warrant." 86 S.W.3d 613, 615 (Tex. Crim. App. 2002); Aviles, 385 S.W.3d at 115. The court reasoned that "[t]his situation, as outlined in section 724.012, is one of the 'circumstances' the Texas Court of Criminal Appeals has held where blood may be drawn without a search warrant." Id. at 116 (citing Beeman, 86 S.W.3d at 616).
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The court concluded that whether the officer could have obtained a warrant before authorizing the blood draw was "immaterial given the mandate of section 724.012(b)(3)(B)." Id. at 116. Thus, the court held that "the warrantless seizure of Aviles's blood was conducted according to the prescriptions of the Transportation Code, and without violating Aviles's Fourth Amendment rights." Id. The Texas Court of Criminal Appeals denied Aviles's petition for discretionary review.
However, on January 13, 2014, the Supreme Court granted certiorari and vacated the Court of Appeals’ judgment. Aviles v. Texas, 134 S.Ct. 902 (2014). It then remanded the case "for further consideration in light of Missouri v. McNeely." Id. On remand, the Court of Appeals held “[l]ooking at the mandatory blood draw statute and the implied consent statute, we held in Weems these statutes clearly create categorical or per se rules the McNeely court held were not permissible exceptions to the Fourth Amendment's warrant requirement.” Aviles v. State, 04-11-00877-CR (Tex. App. — San Antonio August 6, 2014) (citing Weems v. State, 2014 WL 2532299, at *8). The Law Regarding Voluntariness of Pleas Generally A guilty plea constitutes a waiver of three constitutional rights: the right to a jury trial, the right to confront one's accusers, and the right not to incriminate oneself. Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006) (citing Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274 (1969) ).
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Accordingly, due process of law requires that guilty pleas be knowingly, intelligently, and voluntarily made. Kniatt, 206 S.W.3d at 664. To be "voluntary," a guilty plea must be the expression of the defendant's own free will and not obtained by threats, misrepresentations, or improper promises. Id. (citing Brady v. United States, 397 U.S. 742, 755, 90 S.Ct. 1463, 1472, 25 L.Ed.2d 747 (1970)). When assessing the voluntariness of a guilty plea, courts examine the entire record and consider all of the relevant circumstances surrounding the plea. Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998) (per curium).
A record that indicates that a trial court properly admonished a defendant presents a prima facie showing that the guilty plea was made voluntarily and knowingly. See Id; Arreola v. State, 207 S.W.3d 387, 391 (Tex. App.—Houston [1st Dist.] 2006, no pet.). When the record presents a prima facie showing that the applicant entered their plea voluntarily and knowingly, the burden shifts to the defendant to show that they entered the plea without understanding the consequences of the plea. Edwards v. State, 921 S.W.2d 477, 479 (Tex. App.—Houston [1st Dist.] 1996, no pet.).
The test for determining the validity of a plea is whether it represents a voluntary and intelligent choice among alternative courses of action open to the defendant. Ex parte Karlson, 282 S.W.3d 118, 129 (Tex. App.—Fort Worth 2009, pet. ref’d). A guilty plea made by a defendant fully aware of the plea’s direct
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consequences must stand unless it was induced by threats, misrepresentations, or promises that are by their nature improper. Ex parte Morrow, 952 S.W.2d 530, 534– 35 (Tex. Crim. App. 1997), cert. denied, 525 U.S. 810 (1998). Analysis As stated previously, a deputy with Harris County Constable Precinct One arrested Petitioner for Driving While Intoxicated after Petitioner was found to be asleep while seated behind the steering wheel of his vehicle with the engine running. Petitioner was promptly arrested without being offered the opportunity to perform any Standardized Field Sobriety Tests. After being transported to the police station, deputies discovered that Petitioner had been twice previously convicted of the offense of Driving While Intoxicated. Subsequently, and pursuant to Texas Transportation Code Section 724.012, a “mandatory” blood draw was conducted on Applicant without his consent and without a valid search warrant. See Tex. Transp. Code Ann. § 724.012(b)(1). Analysis of Petitioner’s blood revealed a blood alcohol content in excess of .08g/100mL. No other evidence of Petitioner’s intoxication was obtained.
Although McNeely had not been decided at the time Petitioner entered his plea, it is not new law that may or may not be retroactively applied. Rather, this ruling is at most a clarification of existing law. Schmerber, 384 U.S. at 770–71. For the last forty-eight years, it has been constitutionally permissible for police officers
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to obtain a blood sample without a warrant or consent if they have probable cause, exigent circumstances, and a reasonable method of extraction. Id. However, Texas courts have erroneously assumed that the mandatory draw provisions of the Transportation Code comported with constitutional requirements of the Fourth Amendment.
Further, as the Aviles case’s procedural history demonstrates, the Supreme Court’s ruling in McNeely applies to convictions obtained prior to its 2013 decision. See Aviles v. State, 385 S.W.3d 110, 116 (Tex. App. — San Antonio 2012), vacated, 134 S.Ct. 902 (2014)(emph added). Therefore, because McNeely is merely a clarification designed to correct the misconceptions of various state courts, its holding entitles Applicant to relief in this case.
The Court of Appeals held that Petitioner waived this issue as no motion to suppress was ever filed. Ex parte Escobar, 01-15-00154-CR (Tex. App. – Houston [1st Dist.] October 6, 2015). However, that holding only serves to highlight the problem with the case at bar, namely, that Petitioner’s plea was rendered involuntary due to the erroneous assumptions of the appellate courts of this state. If Petitioner had filed a motion to suppress, it would have been denied as the court would have held that the evidence was seized pursuant to an exception to the warrant requirement. Had Petitioner proceeded to trial, been convicted, and then appealed that denial, as the Court of Appeals argued he should have, reversal would only have
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come if the McNeely clarification had come prior to the Court of Appeals’ opinion, or the denial of a subsequent petition for discretionary review.
The Court of Appeals’ holding of waiver, therefore, implicitly dismisses the violation of Petitioner’s, as well as many others’, Fourth Amendment rights as irrelevant. This is fundamentally unfair as the defendants in these cases were not fully aware of the direct consequences of their plea, namely, that they were giving up valid rights to challenge evidence seized in violation of the Fourth Amendment. Morrow, 952 S.W.2d at 534–35; McNeely, 133 S.Ct. at 1562, 185 L.Ed.2d 696.
Finally, the threshold for harm stemming from a Fourth Amendment violation is that reversal is required unless it is determined beyond a reasonable doubt that the error did not contribute to the conviction or punishment. TEX. R. APP. P. 44.2(a). Petitioner argues that rule should apply to the case at bar. Under the clarification embraced in McNeely, Applicant’s Fourth Amendment rights were clearly violated. Further, that violation clearly contributed to his conviction as it was the only evidence of intoxication obtained. Moreover, had this violation not occurred, and had Texas law not promoted an invalid exception to the warrant requirement, Petitioner would not have entered a plea of guilty in this case.
PRAYER FOR RELIEF
ACCORDINGLY, this Court should GRANT this PETITION FOR DISCRETIONARY REVIEW and ORDER briefs on the merits to answer the
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question of whether the evidence against the Petitioner was legally sufficient to support his conviction.
Petitioner further prays for all relief to which he may be entitled.
Respectfully submitted,
______________________________
TOM ABBATE
440 LOUISIANA ST, STE 200 HOUSTON, TX 77002
T: 713.223.0404
F: 800.501.3088
tom@tomabbatelaw.com
SBOT # 24072501
ATTORNEY FOR PETITIONER
CERTIFICATE OF SERVICE
This is to certify that on the day of NOVEMBER 5, 2015 a true and correct copy of the above and foregoing Petition for Discretionary Review was served on the Harris County District Attorney’s Office, 1201 Franklin, Suite 600, Houston, Texas 77002, by FAX (713.755.5809).
______________________________
TOM ABBATE
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CERTIFICATE OF COMPLIANCE I hereby certify that there are 2919 words contained in this document.
______________________________
TOM ABBATE
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APPENDIX