Garcia, Dylan Jezreel

Opinion

PD-0712-15

COURT OF CRIMINAL APPEALS AUSTIN, TEXAS

Transmitted 7/8/2015 1:19:53 PM Accepted 7/9/2015 4:28:04 PM ABEL ACOSTA

CLERK

NO. PD-0712-15

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

DYLAN JEZREEL GARCIA, Appellant VS.

THE STATE OF TEXAS, Appellee

On Petition for Discretionary Review from The Fourteenth Court of Appeals in No. 14-14-00387-CR Affirming The 300th Criminal District Court of Brazoria County, Texas, Cause No. 68303, Honorable K. Randall Hufstetler, Judge Presiding

APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

Crespin Michael Linton

440 Louisiana, Suite 900

July 9, 2015 Houston, Texas 77002 Texas Bar No. 12392850

(713) 236-1319

(713) 236-1242 (FAX)

crespin@hal-pc.org

Counsel for Appellant

Oral Argument Waived

INDEX

PAGE

Index 2 Names of All Parties 3 List of Authorities 4 Statement Regarding Oral Argument 5 Statement of the Case 5 Procedural History 5 GROUND FOR REVIEW 6

THE COURT OF APPEALS ERRED IN DETERMINING THAT EXIGENT CIRCUMSTANCES JUSTIFIED THE WARRANTLESS SEIZURE OF APPELLANT’S BLOOD

Reason for Review 6 Statement of Facts 7 Arguments and Authorities 8 Prayer for Relief 12 Certificate of Compliance 12 Certificate of Service 12

Appendix A 13 Opinion, Garcia v. State

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NAMES OF ALL PARTIES

Pursuant to Tex. R. App. P. 38.1(a), the following are interested parties:

Presiding Judge: K. Randall Hufstetler Brown 300th Criminal District Court 111 E. Locust, 4th Floor

Angleton, Texas 77515

Appellant: Mr. Dylan Jezreel Garcia Texas Department of Criminal Justice TDCJID# 01926397

Hamilton Unit

200 Lee Morrison Lane

Bryan, Texas 77807

Attorneys for State: Mr. Trey Picard Brazoria County District Attorney's Office

111 E. Locust, 4th Floor

Angleton, Texas 77515

Attorneys for Appellant: Mr. Scott M. Brown (trial)

121 E. Myrtle

Angleton, Texas 77515

Mr. Crespin Michael Linton (appeal)

440 Louisiana Street, Suite 900 Houston, Texas 77002

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LIST OF AUTHORITIES

CASES PAGE

Douds v. State, 434 S.W.3d 842……………………….…… 10 (Tex. App. - Houston [14th Dist.] 2014, pet. granted)

McGee v. State, 105 S.W.3d 609………………………… 9 (Tex. Crim. App. 2003)

Shepherd v. State, 273 S.W.3d 681…………………………… 9 (Tex. Crim. App. 2008)

State v. Mosely, 348 S.W.3d 435…………………………… 10 (Tex. App. - Austin 2011, pet. ref’d)

Wiede v. State, 214 S.W.3d 17…………………………………… 9 (Tex. Crim. App. 2007)

RULES

TEX. R. App. Proc., Rule 38.1(a)…………………………………….……………………………. 3

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STATEMENT REGARDING ORAL ARGUMENT Pursuant to Rule 39.1, Appellant waives the right to oral argument.

STATEMENT OF THE CASE

The Appellant was charged with Intoxication Manslaughter and Felony Driving While Intoxicated. After a jury trial, the jury found Appellant guilty of both charges. The jury sentenced him to a term of 12 years in prison for Intoxication Manslaughter and 10 years in prison for Felony Driving While Intoxicated.

PROCEDURAL HISTORY

All points of error were affirmed by the Fourteenth Court of Appeals on May 12, 2015, in a published opinion. No motion for rehearing was filed.

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GROUND FOR REVIEW

GROUND FOR REVIEW

THE COURT OF APPEALS ERRED IN DETERMINING THAT EXIGENT CIRCUMSTANCES JUSTIFIED THE WARRANTLESS SEIZURE OF APPELLANT’S BLOOD.

REASON FOR REVIEW

THE COURT OF APPEALS HAS DEPARTED SO FAR FROM THE ACCEPTED AND USUAL COURSE OF JUDICIAL PROCEEDINGS OR SO FAR SANCTIONED SUCH A DEPARTURE BY A LOWER COURT, AS TO CALL FOR AN EXERCISE OF THE COURT OF CRIMINAL APPEAL’S POWER OF SUPERVISION.

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STATEMENT OF FACTS

At about 10:20 p.m. on June 3, 2012, Appellant was involved in a one car accident on County Road 690 in Brazoria County, Texas, in which the passenger was killed. Trooper David Wyman arrived at the scene at about 11:00 p.m. and smelled alcohol on Appellant’s breath inside an ambulance in which Appellant was located. Appellant was then taken to a local hospital. Wyman did not arrive at the hospital until Midnight because he had to monitor the accident scene until another officer arrived. At 1:15 a.m., Wyman ordered a mandatory blood draw after he concluded that Appellant was intoxicated and after Appellant refused to consent to provide a specimen of his blood.

In a pretrial hearing, the trial denied Appellant’s motion to suppress the results of the blood draw obtained without a warrant. The trial court found that exigent circumstances justified that warrantless seizure of Appellant’s blood. The jury found Appellant guilty of Intoxication Manslaughter and Felony DWI and sentenced him to prison terms of 12 years and 10 years respectively.

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ARGUMENTS AND AUTHORITIES

GROUND FOR REVIEW ONE

THE COURT OF APPEALS ERRED IN DETERMINING THAT EXIGENT CIRCUMSTANCES JUSTIFIED THE WARRANTLESS SEIZURE OF APPELLANT’S BLOOD.

REASON FOR REVIEW

THE COURT OF APPEALS HAS SO FAR DEPARTED FROM THE ACCEPTED AND USUAL COURSE OF JUDICIAL PROCEEDINGS OR SO FAR SANCTIONED SUCH A DEPARTURE BY A LOWER COURT, AS TO CALL FOR AN EXERCISE OF THE COURT OF CRIMINAL APPEAL’S POWER OF SUPERVISION.

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DISCUSSION

The Court of Appeals incorrectly held that the totality of the circumstances supported the trial court’s decision that found that exigent circumstances existed that made obtaining a warrant impractical.

At a suppression hearing, the trial court is the sole and exclusive trier of fact and judge of credibility of the witnesses, as well as the weight to be give their testimony. Weide v. State, 214 S.W.3d 17 (Tex. Crim. App. 2007) In reviewing a trial court’s ruling on a motion to suppress, the appellate court gives almost total deference to a trial court’s determination of historical facts, and review de novo the trial court’s application of law of search and seizure. Shepherd v. State, 273 S.W.3d 681 (Tex. Crim. App. 2008 The exceptions to the rule that a search must rest upon a search warrant include: 1) voluntary consent to search, 2) search under exigent circumstances, and 3) search incident to arrest, and the State bears the burden to prove that a warrantless search falls within one of these exceptions. McGee v. State, 105 S.W.3d 609, 615 (Tex. Crim. App. 2003) A warrantless seizure of a blood sample can be constitutionally permissible if the State proves that the police had probable cause to arrest a suspect,

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exigent circumstances existed, and a reasonable method of extraction is available. State v. Mosely, 348 S.W.3d 435, 440 (Tex. App. – Austin 2011, pet. ref’d) Only the exigent circumstances exception applies in this case because Appellant did not consent to the taking of his blood and the taking of blood was not a proper search incident to arrest. “To ensure that the exigencies of the situation make dispensing with the constitutional requirements of a warrant imperative, courts must focus on whether the State showed that police could not reasonably obtain a warrant, not on whether it showed how severe the accident was. Douds v. State, 434 S.W.3d 842, 854 (Tex. App. – Houston [14th Dist.] 2014, pet. granted).

While Appellant acknowledges that 3 hours passed from the time of the accident until Trooper Wyman ordered the mandatory blood draw, Appellant contends that the appellate court refused to acknowledge the fact that Trooper Wyman never even attempted to obtain a warrant. Trooper Wyman supported his decision for a warrantless blood draw by testifying it would have taken too much time for him to type up the warrant and find a local judge in the middle of the night to sign the warrant for a blood draw. By relying upon Trooper Wyman’s testimony to uphold the trial court’s

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decision, the appellate court supported Trooper Wyman’s decision to not even try to obtain a warrant because the process was too hard. Because Wyman had already smelled alcohol on Appellant’s breath at the accident scene, Wyman could have called his office to begin the process of locating a judge and preparing a warrant, but Wyman decided against the additional work and just relied on the mandatory blood draw statute. Wyman’s refusal to do the extra work necessary to obtain warrant does not amount to exigent circumstances. Therefore, the Court of Appeals erred in determining that exigent circumstances existed to justify the warrantless seizure of Appellant’s blood.

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PRAYER FOR RELIEF

For the reasons stated, Appellant Garcia prays the Court to grant his Petition For Discretionary Review, and after considering the grounds for review, reverse the judgment of the court of appeals and grant the relief requested.

Respectfully submitted,

_/s/ Crespin Michael Linton_ Crespin Michael Linton

440 Louisiana, Suite 900

Houston, Texas 77002

Texas Bar No. 12392850

(713) 236-1319

(713) 236-1242 (Fax)

CERTIFICATE OF COMPLIANCE

I hereby certify that Appellant’s Brief, as calculated under Texas Appellate Rule of Appellate Procedure 9.4, contains 1,466 words as determined by the Word program used to prepare this document.

_/s/ Crespin Michael Linton Crespin Michael Linton

CERTIFICATE OF SERVICE

I do hereby certify that on this the 8th day of July 2015, a true and correct copy of the foregoing Appellant’s Brief was served by E-service in compliance with Local Rule 4 of the Court of Appeals or was served in compliance with Article 9.5 of the Rules of Appellate Procedure delivered to the Assistant District Attorney of Harris County, Texas, 111 E. Locust Street, 4th Floor Angleton, Texas 77515 at davidb@brazoria-county.com and the State Prosecuting Attorney, P.O. Box 12405 Austin, Texas 78711 at information@spa.texas.gov.

__/s/_Crespin Michael Linton__ Crespin Michael Linton

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APPENDIX A

Opinion In the Court of Appeals For The Fourteenth District of Texas

No. 14-14-00387-CR

Dylan Jezreel Garcia, Appellant

v.

State of Texas,

Appellee