PD-1118&1119-15 PD-1118&1119-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 8/26/2015 4:35:09 PM Accepted 8/28/2015 11:15:54 AM ABEL ACOSTA TO THE CLERK TEXAS COURT OF CRIMINAL APPEALS OF THE STATE OF TEXAS * * *
PAUL ANTHONY GARCIA, § APPELLANT § V. § Cause Number 04-14-00389-CR THE STATE OF TEXAS, § Cause Number 04-14-00390-CR APPELLEE §
* * * PETITION FOR DISCRETIONARY REVIEW THE STATE OF TEXAS * * *
Appeal from Decision Rendered in the 216th Judicial District Court of Kendall County, Texas Trial Court Cause Number 5397 & 5398 Court of Appeals Number 04-14-00389 & 390-CR
* * *
E. BRUCE CURRY State Bar Card Number 05268500 District Attorney By Steven A. Wadsworth State Bar Card Number 00788596 August 28, 2015 Assistant District Attorney 200 Earl Garrett Street, Suite 202 Kerrville, Texas 78028 830.896.4744 (telephone) 830.869.2620 (facsimile) steve216@bizstx.rr.com
ORAL ARGUMENT NOT REQUESTED IDENTITY OF JUDGE, PARTIES AND COUNSEL
C The parties in this case are The State of Texas, who is the Appellant / Petitioner, and Paul Anthony Garcia is the Defendant / Appellee.
C The trial court judge was the Honorable N. Keith Williams.
C Counsel for the State at trial and on appeal is Steven A. Wadsworth, 200 Earl Garrett Street, Suite 202, Kerrville, Texas 78028.
C Trial Counsel for Appellee was Paul J. Goeke, 115 East Travis, Suite 1145, San Antonio, Texas 78205.
C Appellate Counsel for Appellee is M. Patrick Maguire, 945 Barnett Street, Kerrville, Texas 78028.
State’s Petition for Discretionary Review, Paul Anthony Garcia v. State, Cause Number 04-14-00389 and 390-CR, In the Court of Appeals For the Fourth Supreme Judicial District of Texas Page Number i TABLE OF CONTENTS PAGE
INDEX OF AUTHORITIES iv
STATEMENT REGARDING ORAL ARGUMENT 1
STATEMENT OF THE CASE 1-2
STATEMENT OF PROCEDURAL HISTORY 3
GROUNDS FOR REVIEW: 3-4 Number One: Is a warrantless, but mandatory, blood-draw conducted in accordance with the requirements of the Texas Transportation Code §724.012(b)(1)(A) & ( C) reasonable under the U.S. CONST., amend. IV?
Number Two: Did the court of appeals err in holding that Texas Transportation Code §724.012(b)(1)(A) & ( C) did not dispense with a warrant requirement?
Number Three: Does the federal or state (Tex. Code Crim. Proc., ann. §38.23) exclusionary rules mandate suppression of the warrantless blood-draw evidence when at the time that the blood-draw occurred, it was mandated by the provision of Texas Transportation Code §724.012(b)(1)(A) & ( C) and was approved by applicable case law?
Number Four: Was the warrantless blood-draw conducted in accordance with the requirements of the §Texas Transportation Code 724.012(b)(1)(A) & ( C) justified on the basis of exigency and did the lower court err in failing to consider exigency as a basis to uphold the trial court’s ruling?
State’s Petition for Discretionary Review, Paul Anthony Garcia v. State, Cause Number 04-14-00389 and 390-CR, In the Court of Appeals For the Fourth Supreme Judicial District of Texas Page Number ii ARGUMENT 4-11
PRAYER 12
CERTIFICATE OF SERVICE 12
CERTIFICATE OF WORD COUNT 12
APPENDIX 1. Opinion of Court of Appeals
State’s Petition for Discretionary Review, Paul Anthony Garcia v. State, Cause Number 04-14-00389 and 390-CR, In the Court of Appeals For the Fourth Supreme Judicial District of Texas Page Number iii INDEX OF AUTHORITIES
PAGE Federal Statute U.S. Const. IV amendment 3, 8
Federal Case Illinois v. Krull, 480 U.S. 340, 107 S.Ct. 1160, 94 L.Ed.2d 364 (1987) 10 Maryland v. King, ___U.S.___, 133 S.Ct. 1958, 1969-1970, 186 L.E.d2 1 (2013) 8 Missouri v. McNeely, ––– U.S. ––––, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013) 10
State Cases Beeman v. State, 86 S.W.3d 813 (Tex. Crim. App. 2002) 10 Ex Parte Ruthhart, 980 S.W.2d 469 (Tex. Crim. App. 1998) 9 Garcia v. State, 04-14-00389 & 390-C, 25 Tex. App. Lexis 7797 (Tex. App.—San Antonio July 29, 2015, mem. op., do not publish) 2-3, 9 Hailey v. State, 87 S.W.3d 118 (Tex. Crim. App. 2002) 10 In re Cole, PD-0077-15, 2015 Tex. Crim. App. 508 (Tex. Crim. App. - pet. granted April 22, 2015) 8-9 Weems v. State, 434 S.W.3d 655 (Tex. App.-San Antonio 2014, pet. granted) 8
Texas Statutes Tex. Code Crim. Proc., ann. §38.23 (Lexis 2015) 3, 9 Texas Gov’t. Code §311.016 (Lexis 2015) 9 Texas Transportation Code §724.012 (Westlaw 2014) 3, 7-11
State’s Petition for Discretionary Review, Paul Anthony Garcia v. State, Cause Number 04-14-00389 and 390-CR, In the Court of Appeals For the Fourth Supreme Judicial District of Texas Page Number iv TO THE TEXAS COURT OF CRIMINAL APPEALS OF THE STATE OF TEXAS * * *
PAUL ANTHONY GARCIA, § APPELLANT § V. § Cause Number 04-14-00389-CR THE STATE OF TEXAS, § Cause Number 04-14-00390-CR APPELLEE §
* * * PETITION FOR DISCRETIONARY REVIEW, THE STATE OF TEXAS
TO THE HONORABLE JUDGES OF SAID COURT:
STATEMENT REGARDING ORAL ARGUMENT
The State does not request oral argument.
STATEMENT OF THE CASE
Appellee, Paul Anthony Garcia (hereinafter referred to as Appellee), was
indicted on or about November 5, 2012 for the offense of injury to a child, alleged to
have been committed on or about September 1, 2012 in Kendall County, Texas. CR,
V. 1, p. 6.1 Appelle was also indicted on or about November 5, 2012 for the offense
1 As used herein, the abbreviation CR will refer to the Clerk’s Record, and the abbreviation RR will refer to the reporter’s record. With respect to references to the reporter’s record, a volume reference and a page reference, which will be abbreviated as a p or pp, as appropriate, will be followed immediately by a line reference, which will be abbreviated by an l followed by the reference (continued...)
State’s Petition for Discretionary Review, Paul Anthony Garcia v. State, Cause Number 04-14-00389 and 390-CR, In the Court of Appeals For the Fourth Supreme Judicial District of Texas Page Number 1 of intoxication manslaughter with a deadly weapon, alleged to have been committed on
or about September 1, 2012 in Kendall County, Texas. CR, V. 1, p. 6.2 The Appellee
filed a pre-trial motion to suppress with respect to the blood-draw taken by a Texas
Department of Public Safety (hereinafter referred as DPS) Trooper. CR, Vol. 1, pp.
39-42 & 61-70 & 80-83 (record in 5397) and CR, Vol. 1, pp. 36-39 & 58-67 & 80-83.
(record in 5398). Following a pretrial hearing on May 9, 2013, RR, Vol. 2, p. 2, the
court denied Appellee’s motion to suppress the blood-draw evidence. CR, Vol. 1, pp.
85-86. A jury trial was held and the Appellee was convicted of injury to a child. CR,
Vol. 1, pp. 148-155; and RR, Vol. 5, p. 59, l. 7-10 and p. 59, l. 24-25 to p. 60, l. 1-6.
The Fourth Court of Appeals reversed the trial court’s ruling on the pre-trial
motion to suppress evidence of the blood-draw, found the admission of the blood-draw
evidence at trial was erroneous and harmful error,3 reversed the conviction and
remanded the case for a new trial. Garcia v. State, 04-14-00389 & 390-C, 25 Tex.
App. Lexis 7797 (Tex. App.—San Antonio July 29, 2015, mem. op., do not publish).
1 (...continued) to the particular lines by number. 2 This citation is the to the appellate record the trial in cause 5398. 3 The blood-draw test results were admitted with the Appellee renewing all of his previous objections, but without the trial court actually ruling on those objections at trial. RR, Vol. 4, p. 181, l. 4-20.
State’s Petition for Discretionary Review, Paul Anthony Garcia v. State, Cause Number 04-14-00389 and 390-CR, In the Court of Appeals For the Fourth Supreme Judicial District of Texas Page Number 2 STATEMENT OF PROCEDURAL HISTORY
The Fourth Court of Appeals reversed the trial court’s ruling on the pre-trial
motion to suppress evidence of the blood-draw, found the admission of the blood-draw
evidence at trial was erroneous and harmful error, reversed the conviction and
remanded the case for a new trial. Garcia v. State, 04-14-00389 & 390-CR, 25 Tex.
App. Lexis 7797 (Tex. App.—San Antonio July 29, 2015, mem. op., do not publish).
A motion for rehearing was not filed.
GROUNDS FOR REVIEW
Number One: Is a warrantless, but mandatory, blood-draw conducted in accordance with the requirements of the Texas Transportation Code §724.012(b)(1)(A) & ( C) reasonable under the U.S. CONST., amend. IV?
Number Two: Did the court of appeals err in holding that Texas Transportation Code §724.012(b)(1)(A) & ( C) did not dispense with a warrant requirement?
Number Three: Does the federal or state (Tex. Code Crim. Proc., ann. §38.23) exclusionary rules mandate suppression of the warrantless blood-draw evidence when at the time that the blood-draw occurred, it was mandated by the provision of Texas Transportation Code §724.012(b)(1)(A) & ( C) and was approved by applicable case law?
Number Four: Was the warrantless blood-draw conducted in accordance with the requirements of the §Texas Transportation Code 724.012(b)(1)(A) & ( C) justified on the basis of exigency and did the lower court err in failing to consider exigency as a basis to uphold the trial
State’s Petition for Discretionary Review, Paul Anthony Garcia v. State, Cause Number 04-14-00389 and 390-CR, In the Court of Appeals For the Fourth Supreme Judicial District of Texas Page Number 3 court’s ruling?
STATEMENT OF FACTS
The State incorporates by reference all facts contained in its Statement of Facts
of the State’s Reply Brief. For purposes of this petition, the more relevant facts are that
in late evening of September 1, 2012, Ricardo Carrillo (hereinafter referred to as
Carrillo) testified that he was riding motorcycles with his friends on State Highway 46
outside of Boerne the evening of September 1, 2012 when he started to see debris in
the road and dust settling from an obvious car accident. RR, Vol. 3, p. 1-23. Carillo
stopped to help, and saw that one female, who later would be identified as Destiny Ann
Bruce (hereinafter referred to as Destiny), was still in the van in the driver’s seat and
gasping for breath. RR, Vol. 3, p. 9-22. Carrillo assisted in removing the female
passenger of the van, who would later be identified as Grace Ann Bruce (hereinafter
identified as Grace) through a window. RR, Vol. 3, p. 272, l. 3-8.
Boerne Police Officer Lance DeLeon (hereafter referred to as Officer DeLeon)
arrived on the accident scene at 11:55 p.m. RR, Vol. 3, p. 289, l. 4-10, and p. 290, l.
20-22. At the accident, Officer DeLeon saw a brown Chevy truck in the westbound
lane of Highway 46 with a Hispanic male driver in it. RR, Vol. 3, p. 291, l. 1-4.
Officer DeLeon identified that person as the Appellee, and he was alone in the truck
State’s Petition for Discretionary Review, Paul Anthony Garcia v. State, Cause Number 04-14-00389 and 390-CR, In the Court of Appeals For the Fourth Supreme Judicial District of Texas Page Number 4 and behind the driver’s wheel in the driver’s seat. RR, Vol. 3, p. 293, l. 1-7. The
Appellee was pinned in the truck and had to be extracted by emergency personnel from
the truck. RR, Vol. 3, p. 297, l. 1-5 & 12-15; and RR, Vol. 4, p. 93, l. 1-19. Officer
DeLeon also saw a white 4-door car a little further away and on its side. RR, Vol. 3,
p. 292, l. 11-15. When Officer DeLeon looked into the car, he saw Destiny still
strapped into the driver’s seat and deceased. RR, Vol. 3, p. 294, l. 9 to p. 295, l. 1.
Other emergency personnel arrived at the accident within a few minutes of Officer
DeLeon, and Grace was taken by air ambulance from the scene to the hospital. RR,
Vol. 3, p. 295, l. 12-24.
DPS Trooper Ross Rigby (hereinafter referred to as Trooper Rigby) assisted in
the accident investigation. RR, Vol. 4, p. 96, l. 13-16. Trooper Rigby searched the
Appellee’s truck that night and located a marijuana bong and a pipe, and bottle of Jack
Daniel’s green label whiskey. RR, Vol. 4, p. 97, l. 18-21. When found in the
Appellee’s truck that evening, the bottle of whiskey, which was a one liter bottle, was
over half-empty, but unbroken or cracked, i.e. none would have leaked out in the
wreck. RR, Vol. 4, p. 39, l. 10-25; and, Exhibit 27.
DPS Trooper Eric Kendrick (hereinafter referred to as Trooper Kendrick)
arrived at the accident just a few moments after Officer Deleon. RR, Vol. 4, p. 15, l.
State’s Petition for Discretionary Review, Paul Anthony Garcia v. State, Cause Number 04-14-00389 and 390-CR, In the Court of Appeals For the Fourth Supreme Judicial District of Texas Page Number 5 1-18. When Trooper Kendrick arrived at the accident scene, he saw the two vehicles
involved in the crash with the white vehicle driven by Destiny on it’s side in the
northbound lane of Highway 46, and the truck driven by the Appellee just off to the
north side of the same highway. RR, Vol. 4, p. 16, l. 2-9, and p. 41, l. 24 to p. 42, l.
8. Once at the scene, Trooper Kendrick was told by Officer DeLeon that Destiny was
dead inside of her car. RR, Vol. 4, p. 42, l. 3-7. Trooper Kendrick went over to
Destiny’s vehicle to confirm her condition, and then saw Grace on the ground near the
vehicle. RR, Vol. 4, p. 43, l. 23 to p. 44, l. 2. Grace appeared to have a head injury
or something wrong with her eyes at that time and was airlifted from the accident scene
to the hospital. RR, Vol. 4, p. 45, l. 1-15.
After checking on Grace, Trooper Kendrick went to the Appellee’s truck. RR,
Vol. 4, p. 45, l. 18-22. The Appellee was still behind the wheel of this truck when
Trooper Kendrick came to him. RR, Vol. 4, p. 45, l. 20-22. Since the doors of the
Appellee’s truck were jammed shut, Trooper Kendrick talked to the Appellee through
the passenger side window of Appellee’s truck. RR, Vol. 4, p. 46, l. 1-5, and l. 7-14.
At this time, the Appellee had no visible injuries, but he did appear to be in pain or
discomfort to Trooper Kendrick. RR, Vol. 4, p. 46, l. 5-6. Trooper Kendrick testified
both at the suppression hearing and trial that the Appellee did have a broken leg or foot,
State’s Petition for Discretionary Review, Paul Anthony Garcia v. State, Cause Number 04-14-00389 and 390-CR, In the Court of Appeals For the Fourth Supreme Judicial District of Texas Page Number 6 and had to be cut out of his truck that evening. RR, Vol. 2, p. 14, l. 6-9; and RR, Vol.
4, p. 36, l. 22-25.
When Trooper Kendrick talked to the Appellee that evening, the recording of
which was admitted into evidence as Exhibit 4, Trooper Kendrick thought that based
upon the answers given by the Appellee that the Appellee, “[A]ppeared disoriented,
confused, not in a normal state of mind.” RR, Vol. 4, p. 56, l. 25 to p. 47, l. 2; and, p.
85, l. 19-20. Kendrick saw that the Appellee had really red or bloodshot eyes. RR,
Vol. 4, p. 82, l. 8-14 & p. 83, l. 8-19.
Once the Appellee arrived at the hospital that evening, DPS Trooper Rodney
Zarate (hereinafter referred to as Trooper Zarate) went to the hospital to met the
Appellee to continue the investigation. RR, Vol. 4, p. 52, l. 16-22; and, p. 127, l. 5-19.
Trooper Zarate then read the DIC-24 form to the Appellee. RR, Vol. 4, p. 131, l. 23
to p. 132, l. 7; and, Exhibit 8.4 The nurse, Amy Smith, then drew blood from the
Appellee. RR, Vol. 4, p. 135, l. 1 to p. 137, l. 22; and Exhibit 9 & 10. 5 The blood
4 In accordance with the stipulation (RR, Vol. 4, p. 243, l. 11-19), the State is not arguing that the Appellee consented to the blood draw. The precise stipulation is, “But just to make it clear, yes, in both cases the State is waiving any appellate argument that there was consent to the blood draw in both of these cases. Yes, the State is waiving. And in exchange Mr. Goeke is giving up any request with respect to voluntariness or consent in the charge.” RR, Vol. 4, p. 243, l. 11-19. 5 Exhibit 10 is the DPS form THP-51 used in conjunction with blood-draws pursuant to Texas (continued...)
State’s Petition for Discretionary Review, Paul Anthony Garcia v. State, Cause Number 04-14-00389 and 390-CR, In the Court of Appeals For the Fourth Supreme Judicial District of Texas Page Number 7 sample was then tested. RR, Vol. 4, p. 181, l. 1-25, & Exhibit 11.
ARGUMENT Point of Error Number One: Is a warrantless, but mandatory, blood-draw conducted in accordance with the requirements of the Texas Transportation Code §724.012(b)(1)(A) & ( C) reasonable under the U.S. CONST., amend. IV?
The pretrial evidentiary hearing on the Appellee’s Motion to Suppress was
limited, in relevant aspect, to the constitutionality of the Texas Transportation Code
§724.012 (Westlaw 2014), RR, Vol. 2, p. 7, l. 6-17 & 24. The accident and
subsequent blood draw at issue in this case took place on September 1-2, 2012. CR,
p. 6, and Exhibit 11. Under the circumstances, the warrantless blood-draw was
reasonable for constitutional purposes. The court should grant review because this is
the same issue pending in In re Cole, PD-0077-15, 2015 Tex. Crim. App. 508 (Tex.
Crim. App. - pet. granted April 22, 2015), and this important question of state and
federal law that should be settled by this court, and the lower court appears to
misconstrued applicable law.
In addition, as set forth in the State’s Brief in Weems v. State, 434 S.W.3d 655
(Tex. App.-San Antonio 2014, pet. granted PD-0635-14 (Tex. Crim. App. - pet.
5 (...continued) Transportation Code §724.012(b)(1)(A) & ( C).
State’s Petition for Discretionary Review, Paul Anthony Garcia v. State, Cause Number 04-14-00389 and 390-CR, In the Court of Appeals For the Fourth Supreme Judicial District of Texas Page Number 8 granted August 20, 2014)), a balancing test approach to the Fourth Amendment is
preferable in situation involving searches authorized and mandated by statute. See,
Maryland v. King, ___U.S.___, 133 S.Ct. 1958, 1969-1970 186 L.E.d2 1 (2013).
Number Two: Did the court of appeals err in holding that Texas Transportation Code §724.012(b)(1)(A) & ( C) did not dispense with a warrant requirement?
The court of appeals based a great deal of its opinion on the argument that Texas
Transportation Code §724.012(b)(1)(A) & ( C) did not dispense with a warrant
requirement. Garcia v. State, 04-14-00389-CR and 390-CR, 2015Tex. App. LEXIS
7797, *6 (Tex. App.- San Antonio July 29, 2015). This position is in error.
Since the language of the statute at issue use shall, courts have consistently held
that this language imposes a duty. Texas Gov’t. Code §311.016(2). Courts have
interpreted this language as creating a duty or a mandate. See, Ex Parte Ruthhart, 980
S.W.2d 469, 472 (Tex. Crim. App. 1998). The court should grant review because this
issue is also pending in Weems v. State, PD-0635-14 (Tex. Crim. App. - pet. granted
August 20, 2014). This important question of state law that should be settled by this
court.
Number Three: Does the federal or state (Tex. Code Crim. Proc., ann. §38.23) exclusionary rules mandate suppression of the warrantless blood-draw evidence when at the time that the
State’s Petition for Discretionary Review, Paul Anthony Garcia v. State, Cause Number 04-14-00389 and 390-CR, In the Court of Appeals For the Fourth Supreme Judicial District of Texas Page Number 9 blood-draw occurred, it was mandated by the provision of Texas Transportation Code §724.012(b)(1)(A) & ( C) and was approved by applicable case law?
The court should grant review because this is the same issue pending in In re
Cole, PD-0077-15, 2015 Tex. Crim. App. 508 (Tex. Crim. App. - pet. granted April
22, 2015), and this important question of state and federal law that should be settled
by this court, and the lower court appears to misconstrued applicable law.
The primary focus of the federal exclusionary rule has to deter unlawful conduct
by law enforcement. See, Illinois v. Krull, 480 U.S. 340, 347, 107 S. Ct. 1160, 94 L.
Ed. 2d 364 (1987). At the time of the blood-draw in this case, the statutory scheme had
been upheld and interpreted to dispense with a search warrant. Beeman v. State, 86
S.W.3d 813, 816 (Tex. Crim. App. 2002). Thus, neither the federal nor the state
exclusionary rule would be advanced by excluding the blood-draw evidence, and the
court should grant review to examine this important issue of state and federal law.
Number Four: Was the warrantless blood-draw conducted in accordance with the requirements of the §Texas Transportation Code 724.012(b)(1)(A) & ( C) justified on the basis of exigency and did the lower court err in failing to consider exigency as a basis to uphold the trial court’s ruling?
Exigency was not procedurally defaulted since the State was the prevailing party.
See, Hailey v. State, 87 S.W.3d 118, 121-122 (Tex. Crim. App. 2002). Given the
State’s Petition for Discretionary Review, Paul Anthony Garcia v. State, Cause Number 04-14-00389 and 390-CR, In the Court of Appeals For the Fourth Supreme Judicial District of Texas Page Number 10 factors of a fatal accident involving alcohol with two parties transported to the hospital
via helicopter, and the natural dissipation of alcohol, exigency was a factor or grounds
that should have been considered the court of appeals in its review of the decision of
the trial court. See generally, Missouri v. McNeely, 133 S.Ct. 1552, 185 L.Ed.2d 696
(2013). The court should grant review to consider whether to reverse the decision o
the court of appeals or to remand and require consideration of exigency.
PRAYER
WHEREFORE, PREMISES CONSIDERED, the State of Texas, respectfully
prays that the court grant review and reverse the decision of the court of appeals, or
alternatively grant review and reverse because the warrantless blood-draw was a
reasonable search, or alternatively grant review and reverse because Texas
Transportation Code §724.012(b)(1)(A) & ( C) did dispense with a warrant
requirement, or alternatively grant review and reverse because neither the federal nor
state exclusionary rules require suppression of the blood-draw evidence, or
alternatively grant review and reverse because exigent circumstances to justify the
blood-draw or remand to the court appeals to consider whether exigent circumstances
existed, and grant the State all other relief to which it may be justly entitled.
State’s Petition for Discretionary Review, Paul Anthony Garcia v. State, Cause Number 04-14-00389 and 390-CR, In the Court of Appeals For the Fourth Supreme Judicial District of Texas Page Number 11 Respectfully submitted, E. Bruce Curry, District Attorney for the 216 th Judicial District /s/ Steven A. Wadsworth _________________________________________ By Steven A. Wadsworth Texas State Bar Card Number 00788596 Assistant District Attorney 216th Judicial District of Texas 200 Earl Garrett Street, Suite 202 Kerrville, Texas 78028 830.896.4744 (telephone) 830.896.2620 (facsimile) steve216@bizstx.rr.com
CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the above and foregoing document was served on the following parties by the method stated below each on August 26, 2015: Honorable M. Patrick Maguire Via email /s/ Steven A. Wadsworth ________________________________ Steven A. Wadsworth, Assistant District Attorney, Attorney for the State of Texas
CERTIFICATE OF WORD LENGTH I hereby certify that the word count of the applicable portions of this document is show by the word processing program to be 1,991.
/s/ Steven A. Wadsworth _____________________________________ Steven A. Wadsworth, Assistant District Attorney
State’s Petition for Discretionary Review, Paul Anthony Garcia v. State, Cause Number 04-14-00389 and 390-CR, In the Court of Appeals For the Fourth Supreme Judicial District of Texas Page Number 12 APPENDIX No Shepard's Signal™ As of: August 25, 2015 5:09 PM EDT
Garcia v. State Court of Appeals of Texas, Fourth District, San Antonio July 29, 2015, Delivered; July 29, 2015, Filed Nos. 04-14-00389-CR & 04-14-00390-CR
Reporter 2015 Tex. App. LEXIS 7797
Paul Anthony GARCIA, Appellant v. The STATE of Texas, toxicologist, and the definition of "intoxicated" in the jury charge. Appellee Outcome Notice: PLEASE CONSULT THE TEXAS RULES OF APPELLATE PROCEDURE FOR CITATION OF Reversed and remanded. UNPUBLISHED OPINIONS. LexisNexis® Headnotes Prior History: [*1] From the 216th Judicial District Court, Kendall County, Texas. Trial Court Nos. 5397 & 5398. Honorable N. Keith Criminal Law & Procedure > ... > Driving Under the Influence > Blood Williams, Judge Presiding. Alcohol & Field Sobriety Testing > Procedures
Disposition: REVERSED AND REMANDED. HN1 Tex. Transp. Code Ann. § 724.012(b)(1)(A)-(C) ( 2011) provides that a peace officer shall require a blood or breath specimen if a driver is arrested for driving while intoxicated after Core Terms having been involved in an accident and as a result of the accident, another individual has died or will die, has suffered blood, intoxicated, alcohol concentration, warrantless, serious bodily injury, or has suffered bodily injury and been suppression motion, trial court's error, bodily injury, legal limit, trial transported to a hospital or other medical facility for treatment. court, alcohol, grams, beyond a reasonable doubt, blood alcohol content, good faith, Transportation, driver, scene Constitutional Law > ... > Fundamental Rights > Search & Seizure > Warrants Case Summary Criminal Law & Procedure > ... > Driving Under the Influence > Blood Alcohol & Field Sobriety Testing > General Overview Overview HN2 A blood draw pursuant to Tex. Transp. Code Ann. § HOLDINGS: [1]-Where defendant was convicted of reckless 724.012(b) is not a valid exception to the Fourth Amendment's bodily injury to a child and intoxication manslaughter, the trial warrant requirement. court erred by denying his motion to suppress because the warrantless blood draw could not be justified pursuant Tex. Criminal Law & Procedure > ... > Driving Under the Influence > Blood Transp. Code Ann. § 724.012(b) (2011); [2]-The good faith Alcohol & Field Sobriety Testing > General Overview exception to the exclusionary rule did not apply; [3]-A police Constitutional Law > ... > Fundamental Rights > Search & Seizure > officer does not act in good faith when he fails to obtain a warrant Exclusionary Rule based on Tex. Transp. Code Ann. § 724.012(b), which does not dispense with the warrant requirement; [4]-The erroneous Constitutional Law > ... > Fundamental Rights > Search & Seizure > admission of evidence from the blood draw was not harmless Warrants under Tex. R. App. P. 44.2(a), given the State's references to Criminal Law & Procedure > ... > Exclusionary Rule > Exceptions to defendant's blood alcohol content, the evidence from the Exclusionary Rule > Good Faith HN3 Although the federal exclusionary rule usually precludes the Barnard, Justice, Patricia O. Alvarez, Justice, Jason Pulliam, use of evidence obtained in violation of the Fourth Amendment, Justice. if law enforcement personnel rely in good faith on a statute authorizing a warrantless search, and the statute in question is Opinion by: Marialyn Barnard later found to be unconstitutional, the evidence seized need not be excluded. However, Tex. Transp. Code Ann. § 724.012(b) - the Opinion mandatory blood draw statute - does not provide for a warrantless search. Although § 724.012(b) states an officer shall take a blood MEMORANDUM OPINION draw if an individual suffered serious bodily injury as a result of the DWI, it does not mandate that he do so without a warrant. A jury convicted appellant Paul Anthony Garcia of reckless bodily Accordingly, a police officer does not act in good faith when he injury to a child and intoxication manslaughter. As to both fails to obtain a warrant based on § 724.012(b), which does not offenses, the jury made affirmative findings that Garcia used a dispense with the warrant requirement. deadly weapon - a vehicle. Based on the jury's recommendations as to punishment, the trial court imposed a Criminal Law & Procedure > ... > Standards of Review > Harmless & sentence of ten years' confinement, probated, for the reckless Invited Error > Evidence bodily injury to a child offense, and a sentence of fifteen years' Criminal Law & Procedure > ... > Standards of Review > Harmless & confinement for the intoxication manslaughter offense. On Invited Error > Harmless Error appeal, Garcia contends the trial court erred in: (1) denying his motion to suppress; (2) admitting certain medical records into Evidence > Admissibility > Procedural Matters > Rulings on Evidence evidence; and (3) denying his motion for mistrial based on the HN4 Where the trial court's error is one of constitutional State's alleged improper jury argument. We agree [*2] the trial magnitude, the appellate court must reverse the judgment unless court erred in denying Garcia's motion to suppress, and we it determines beyond a reasonable doubt the trial court's error did reverse and remand for a new trial. not contribute to the conviction. Tex. R. App. P. 44.2(a). The harm analysis for erroneous admission of evidence obtained in violation Background of Fourth Amendment is Rule 44.2(a)'s constitutional standard. The record shows that a head-on collision occurred in Kendall Thus, the appellate court must reverse a conviction unless it County. Shortly thereafter, Boerne police officer Lance DeLeon concludes beyond a reasonable doubt the trial court's error did not arrived at the scene of the accident. Two cars were involved in contribute to his conviction. In doing so, the appellate court the accident, a brown pickup truck and white four-door car. considers: (1) the nature of the error; (2) the extent it was Officer DeLeon testified a Hispanic male, later identified as emphasized by the State; (3) the probable implications of the Garcia, was in the driver's seat of the pickup truck. According to error; and (4) the weight the jury likely assigned to it during the officer, Garcia was conscious, but confused and incoherent. deliberations. These factors are not exclusive and other factors After asking a bystander to keep an eye on Garcia, Officer may be relevant to the analysis. An analysis for whether a DeLeon went to check on a child, subsequently identified as G.B., particular constitutional error is harmless should take into account lying in a ditch near the white car. According to one of the first any and every circumstance apparent in the record that logically bystanders on the scene, Ricardo Carrillo, he and his friends had informs an appellate determination, whether beyond a reasonable removed G.B. from the vehicle. The officer then approached the doubt that particular error did not contribute to the conviction or white car, which was on its side. When Officer DeLeon looked into punishment. Tex. R. App. P. 44.2(a). the car, he saw the driver, D.B., strapped into the driver's seat. The officer testified she was deceased. Counsel: For APPELLANT: M. Patrick Maguire, M. Patrick Maguire, P.C., Kerrville, TX. Thereafter, other emergency personnel arrived at the scene, including Texas Department of Public Safety For APPELLEE: Steven A. Wadsworth, Assistant District Attorney, Kerrville, TX.
Judges: Opinion by: Marialyn Barnard, Justice. Sitting: Marialyn Trooper Eric Kendrick. G.B. was airlifted to the [*3] hospital. decision in Missouri v. McNeely, U.S. , 133 S.Ct. 1552, 1560- Garcia, who was pinned in his truck, was removed and also 63, 185 L. Ed. 2d 696 (2013) in which the Court held a airlifted to the hospital. Trooper Kendrick stated he spoke to categorical or per se rule permitting warrantless blood draws Garcia before he was taken to the hospital and Garcia appeared violates the Fourth Amendment. The trial court denied Garcia's disoriented, lacking "normal use of his mental faculties." Trooper motion to suppress and the case proceeded to trial. At trial, the Kendrick testified that initially, he did not suspect Garcia was results of the blood draw were admitted into evidence. Garcia was intoxicated. The trooper stated he was questioning Garcia as part ultimately convicted and thereafter perfected this appeal. of the "crash investigation." Trooper Kendrick testified that during the course of the investigation, he discovered evidence that led Analysis him to believe Garcia was intoxicated at the time of the accident, including: (1) 911 calls advising of a wrong way driver in the area; As set forth above, Garcia raises several issues challenging his (2) the open container of liquor found in Garcia's vehicle; (3) the conviction. However, because we find Garcia's first issue - the marijuana pipe found in Garcia's vehicle; (4) Garcia's red, one challenging the trial court's denial of his motion to suppress - bloodshot eyes; (5) Garcia's apparent loss of his normal faculties; dispositive, we need not address any of the remaining issues. and (6) Garcia's inability to answer questions at the scene. Accordingly, we proceed with our analysis of Garcia's first issue.
As a result of his investigation, Trooper Kendrick, who was still at As noted in our recent decision in Huff v. State, this court has the scene, contacted DPS San Antonio Communications and analyzed McNeely on several occasions and held HN2 section asked that a trooper be sent to the hospital to perform a 724.012(b) is not a valid exception to the Fourth Amendment's mandatory blood draw on Garcia pursuant to section 724.012 of warrant [*6] requirement. No. 04-13-00891-CV, 2015 Tex. App. the Texas Transportation Code.1 The blood draw was taken LEXIS 3401, 2015 WL 1731236, at *14 (Tex. App.-San Antonio under the supervision of Trooper [*4] Rodney P. Zarate. Apr. 8, 2015, pet. filed) (citing Aviles v. State, 443 S.W.3d 291, Admittedly, neither Trooper Kendrick, Trooper Zarate, nor any 294 (Tex. App.-San Antonio 2014, pet. filed); McNeil v. State, 443 other law enforcement officer obtained a warrant prior to S.W.3d 295, 300 (Tex. App.-San Antonio 2014, pet. filed); Weems mandating the blood draw. Trooper Kendrick admitted there was v. State, 434 S.W.3d 655, 665 (Tex. App.-San Antonio 2014, pet. nothing that would have prevented him from obtaining a search granted)). The Texas Court of Criminal Appeals rendered a similar warrant. Rather, at the time, a warrantless blood draw was part of decision in Villarreal v. State, No. PD-0306-14, 2014 Tex. Crim. DPS protocol. App. LEXIS 1898, 2014 WL 6734178, at *9-*10 (Tex. Crim. App. Nov. 26, 2014, reh'g granted). The result of the blood draw showed Garcia's blood alcohol level to be 0.187 grams per hundred milliliters of whole blood. The legal Recognizing the precedent from the Court of Criminal appeals limit in Texas is 0.08 grams per hundred milliliters of whole blood,and this court, the State apparently concedes the warrantless so [*5] Garcia's sample was more than twice the legal limit. blood draw cannot be justified pursuant to the provisions of section Garcia was ultimately arrested and charged with reckless bodily 724.012(b) of the Texas Transportation Code. We agree. injury to a child and intoxication manslaughter. However, the State argues that even if the blood draw was impermissible under section 724.012(b), the blood evidence was Garcia filed a pretrial motion to suppress the results of the blood properly admitted under the good faith exception to the draw. At the suppression hearing, Garcia argued, among other exclusionary rule. We recently addressed this issue in things, that the warrantless blood draw was improper under the Supreme Court's recent
1 Based on the underlying facts, it appears Trooper Kendrick was relying upon section 724.012(b)(1)(A)-(C). SeeHN1 Tex. Transp. Code Ann. § 724.012(b)(1)(A)-(C) (West 2011). This provision provides that a peace officer shall require a blood or breath specimen if a driver is arrested for driving while intoxicated after having been involved in an accident and as a result of the accident, another individual has died or will die, has suffered serious bodily injury, or has suffered bodily injury and been transported to a hospital or other medical facility for treatment. Id. It is undisputed that D.B. died as a result of the accident and G.B. suffered injury and was transported to a hospital for treatment. Huff, a case involving a fatality accident just as in this case, and probable implications of the error; and (4) the weight the jury likely held the good faith exception was inapplicable. 2015 Tex. App. assigned to it during deliberations. Snowden v. State, 353 S.W.3d LEXIS 3401, 2015 WL 1731236, at *16. 815, 822 (Tex. Crim. App. 2011). These factors are not exclusive and other factors may be relevant to the analysis. Id. "At bottom, As we recognized in Huff, HN3 although the federal exclusionary an analysis for whether a particular constitutional error is harmless rule usually precludes the use of evidence obtained in violation of should take into account any and every circumstance apparent in the Fourth Amendment, "if law enforcement personnel rely in good the record that logically informs an appellate determination faith on a statute authorizing a warrantless search, and the statute whether 'beyond a reasonable doubt [that particular error] did not in question is later found to be unconstitutional, the evidence contribute to the conviction or punishment.'" Id.(quoting Tex. R. seized need not be excluded." Id. (citing Illinois v. Krull, 480 U.S. App. P. 44.2(a)). 340, 347, 107 S. Ct. 1160, 94 L. Ed. 2d 364 (1987)). However, we observed that section 724.012(b) - the mandatory blood draw In Weems v. State, we held the trial court's error in denying statute - does not provide for a warrantless search. Id. (citing Tex. Weems's motion to suppress was harmful where the jury was Transp. Code [*7] Ann. § 724.012(b)). "Although the statute instructed regarding the definition of intoxication, [*9] which states an officer shall take a blood draw if an individual suffered included "having an alcohol concentration of 0.08 or more," and serious bodily injury as a result of the DWI, it does not mandate there was testimony from a toxicologist that at the time of the that he do so without a warrant." Id. Accordingly, in Huff, we held blood draw Weems's blood alcohol concentration was 0.18, we could not say the police officer acted in good faith when he making it likely that his blood alcohol concentration was 0.24 at failed to obtain a warrant based on section 724.012(b), which does the time of the accident. 434 S.W.3d at 667. not dispense with the warrant requirement. Id.(citing Tex. Transp. Code Ann. § 724.012(b)(1)(B); McNeil, 443 S.W.3d at 303). Thereafter, in Huff, we also held the trial court's erroneous decision denying a motion to suppress was harmful where the The same is true in this case. Trooper Kendrick admittedly relied State, during voir dire, referenced the Texas blood alcohol limit of upon section 724.012(b)(1)(A)-(C)when he requested that another 0.08 grams per deciliter, a toxicologist testified Huff's blood trooper mandate a blood draw from Garcia without first obtaining sample showed a blood alcohol concentration of 0.17 grams per a warrant. Just as the officer in Huff could not in good faith rely on deciliter - more than twice the legal limit, the toxicology report was Transportation Code when he obtained the blood draw from Huff admitted into evidence, the State referenced Huff's blood alcohol in the absence of a warrant, Trooper Kendrick could not rely upon content during closing argument - noting it was two times the legal it when he mandated a warrantless blood draw from Garcia. See limit, and the jury was instructed about the definition of id. Accordingly, we hold the good faith exception is inapplicable. "intoxicated," which included "having an alcohol concentration of .08 or more." 2015 Tex. App. LEXIS 3401, 2015 WL 1731236, at The State further contends that even if the trial court erred in *17-*18. denying the motion to suppress and admitting the results of the blood test, Garcia was not harmed. HN4 Because the trial court's Here, as in Huff, the prosecutor referenced the Texas blood error is one of constitutional magnitude, we must reverse the alcohol limit of 0.08, stating that if a person has a blood alcohol judgment unless we determine [*8] beyond a reasonable doubt concentration of 0.08 or more, he is intoxicated. See 2015 Tex. the trial court's error did not contribute to the conviction. Tex. R. App. LEXIS 3401, [WL] at *17. The prosecutor also discussed App. P. 44.2(a); see Hernandez v. State, 60 S.W.3d 106, 108 with the venire "alcohol concentration," [*10] with regard to (Tex. Crim. App. 2001) (holding harm analysis for erroneous breath, blood, and urine. After jury selection, during his opening admission of evidence obtained in violation of Fourth Amendment statement, the prosecutor again referenced the 0.08 limit, is Rule 44.2(a)'s constitutional standard). Thus, we must reverse advising the jury it was one way for the State to prove Garcia's conviction unless we conclude beyond a reasonable intoxication. The State called James Burris, a forensic doubt the trial court's error did not contribute to his toxicologist, as a witness. Mr. Burris described in detail the conviction, and in doing so, we consider: (1) the nature of the procedure used for blood alcohol analysis error; (2) the extent it was emphasized by the State; (3) the and specifically stated the standard against which a sample is tested is 0.08. As to Garcia, Mr. Burris testified his testing showed Garcia's blood alcohol content was 0.187 grams per hundred milliliters of whole blood, and therefore, Garcia's blood alcohol content was more than twice the legal limit of 0.08 grams per hundred milliliters of whole blood. The State also introduced, and the trial court admitted into evidence over objection, State's Exhibit 11, a copy of Mr. Burris's report, showing the test results of Garcia's alcohol level - 0.0187. And, just as in Huff, the prosecutor noted Garcia's blood alcohol content during closing argument, asking the jurors to "[k]eep in mind that the definition of intoxication includes . . . the .08 - and you heard that [Garcia's] blood alcohol level was .187, more than two times the legal limit." [*11] See id. Finally, the jury was instructed as to the definition of "intoxicated," just as they were in Huff, which included "having an alcohol concentration of 0.08 or more." See id.
Based on our prior decisions in Weems and Huff, as well as the State's references to Garcia's blood alcohol content, the evidence from the toxicologist presented by the State, as well as the definition of "intoxicated" in the charge, we cannot say beyond a reasonable doubt that the trial court's error in denying Garcia's motion to suppress did not contribute to his conviction. SeeTex. R. App. P. 44.2(a); Huff, 2015 Tex. App. LEXIS 3401, 2015 WL 1731236, at *17-*18; Weems, 434 S.W.3d at 667. We therefore sustain Garcia's first issue and hold the trial court's error entitles Garcia to a new trial. Based on our holding with regard to Garcia's first issue, we need not address Garcia's remaining issues.
Conclusion
Based on the foregoing, we sustain Garcia's challenge to the trial court's denial of his motion to suppress and hold the trial court's ruling constitutes reversible error, entitling Garcia to a new trial. Accordingly, because the warrantless blood draw violated Garcia's rights under the Fourth Amendment, and we cannot say beyond a reasonable doubt that the erroneous admission of the blood draw results did not [*12] contribute to his conviction, we reverse the trial court's judgment and remand this matter to the trial court for a new trial.
Marialyn Barnard, Justice
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