ACCEPTED 01-15-00310-CR FIRST COURT OF APPEALS HOUSTON, TEXAS 01-15-00310-CR 4/6/2015 5:05:18 PM CHRISTOPHER PRINE CLERK
IDENTITY OF PARTIES AND COUNSEL
Pursuant to TEX.R.APP.P. 52.3(a), the Relator presents the following list of all parties FILED IN and the names and addresses of counsel: 1st COURT OF APPEALS HOUSTON, TEXAS 1. Relator (Defendant in Underlying Action) 4/6/2015 5:05:18 PM CHRISTOPHER A. PRINE Miguel Angel Yepez Clerk
Represented by:
Paul B. Kennedy, Attorney at Law, 1415 North Loop West, Suite 102, Houston, Texas 77008
2. Respondent/Trial Court Judge
The Honorable Ruben Guerrero, 174th Judicial District Court, Harris County Criminal Justice Center, 1201 Franklin, Houston, Texas 77002
3. Real Parties in Interest
Plaintiff in Underlying Action:
State of Texas
Devon Anderson, Harris County District Attorney, 1201 Franklin, 6 th Floor, Houston, Texas 77002
Defendant in Underlying Action:
Miguel Angel Yepez
Paul B. Kennedy, Attorney at Law, 1415 North Loop West, Suite 102, Houston, Texas 77008
1 TABLE OF CONTENTS
Page
IDENTITY OF PARTIES AND COUNSEL ............................................................ 1
TABLE OF CONTENTS ....................................................................................... 2
INDEX OF AUTHORITIES.................................................................................... 4
STATEMENT OF THE CASE ............................................................................... 6
STATEMENT OF JURISDICTION ........................................................................ 6
ISSUES PRESENTED FOR RELIEF ................................................................... 6
STATEMENT OF FACTS ..................................................................................... 7
1. Procedural History........................................................................... 7
2. Order for AIDS Testing .................................................................... 8
3. TEX.CODE CRIM.PROC. ART. 21.31 ................................................... 9
ARGUMENTS AND AUTHORITIES ..................................................................... 9
I. STANDARD OF REVIEW ............................................................... 9
II. THE ACT SOUGHT TO BE COMPELLED IS PURELY MINISTERIAL................................................................................ 10
III. RELATOR HAS NO OTHER ADEQUATE REMEDY AT LAW ...... 11
IV. RELATOR HAS A CLEAR AND INDISPUTABLE RIGHT TO RELIEF… ...................................................................................... 11
A. The statute compelling Relator to submit to an AIDS test violated Relator’s rights under the 1st, 4th, 5th and 14th Amendments to the United States Constitution ............... 12
B. The statute compelling Relator to submit to an AIDS test violated Relator’s rights under Art. 1, Sec. 9 of the Texas Constitution ...................................................................... 14
PRAYER ............................................................................................................. 15
2 SIGNATURE....................................................................................................... 15
VERIFICATION .................................................................................................. 16
APPENDIX ONE: Information filed December 30, 2013 .........................................
APPENDIX TWO: Indictment filed May 16, 2014 ...................................................
APPENDIX THREE: Order for AIDS Testing signed March 5, 2015.......................
3 INDEX OF AUTHORITIES
FEDERAL CASES
Cooper v. California, 386 U.S. 58, 62 (1967) ....................................................................................... 14
Katz v. U.S., 389 U.S. 347, 359 (1967) ................................................................................... 13
Roe v. Wage, 410 US 113, 152 (1973) ..................................................................................... 13
STATE CASES
Heitman v. State, 815 S.W. 2d 681, 682 (Tex.Crim.App. 1991) ...................................................... 14
Neveu v.Culver, 105 S.W. 3d 641, 642 (Tex.Crime.App. 2003) ...................................................... 9
State ex rel. Hill v. Fifth Court of Appeals, 34 S.W. 3d 924, 927 (Tex.Crim.App. 2001) .......................................................... 9
FEDERAL CONSTITUTIONS, STATUTES AND CODE
U.S. CONSTITUTION, First Amendment ........................................................................... 11
U.S. CONSTITUTION, Fourth Amendment ........................................................................ 11
U.S. CONSTITUTION, Fifth Amendment ........................................................................... 11
U.S. CONSTITUTION, Sixth Amendment .......................................................................... 11
U.S. CONSTITUTION, Fourteenth Amendment ................................................................. 11
STATE CONSTITUTIONS, STATUTES AND CODE
TEX. CONST. ART. 1, § 9 .................................................................................................... 7
TEX.CODE CRIM.PRO. ART. 21.31...................................................................................... 6
TEX.CODE CRIM. PRO. ART. 44,02 ..................................................................................... 6 4 TEX.GOV’T.CODE §22.221 ................................................................................................ 6
TEX.PEN.CODE § 21.11(a) ............................................................................................. 10
TEX.PEN.CODE § 22.011 ................................................................................................ 10
TEX.PEN.CODE § 22.021 ................................................................................................ 10
5 STATEMENT OF THE CASE
This mandamus action arises from a case in which Relator, Miguel Angel Yepez,
was accused, and later indicted, for the offense of indecency with a child. Following the
indictment, the Assistant District Attorney handling the case presented the court with an
order requiring Defendant to undergo an AIDS test. The Respondent, the Honorable
Ruben Guerrero, 174th Judicial District Court, Harris County, Texas, signed an order
that deviated from the provisions of Article 21.31 of the Texas Code of Criminal
Procedure without holding a hearing to determine whether the test was justified in the
instant case or whether the order was legal.
Relator seeks relief from the trial court’s signing of the order.
It is Relator’s contention that the statute in question is unconstitutionally broad
and, that both as written and as applied, Art. 21.31 violates both his general right to
privacy and his right to be free from unreasonable search and seizure. It is also
Relator’s contention that the order itself was unlawful and illegal as it failed to track the
language of the statute in question.
STATEMENT OF JURISDICTION
This Court has jurisdiction to grant Relator’s Petition for Writ of Mandamus
pursuant to Texas Government Code §22.221. Relator does not have an adequate
remedy at law because he has no right to an interlocutory appeal. TEX.CODE CRIM.PRO.
ART. 44.02.
ISSUES PRESENTED FOR RELIEF
Is a trial court entitled to order a Defendant indicted for indecency with a child to
undergo an AIDS test, pursuant to Article 21.31 of the Texas Code of Criminal
Procedure, without conducting a hearing to determine whether such a test is warranted?
6 Is it a violation of a Defendant’s First, Fourth, Fifth and Fourteenth Amendment s
rights for a trial court to order a Defendant indicted for indecency with a child to undergo
an AIDS test, pursuant to Article 21.31 of the Texas Code of Criminal Procedure,
without a finding of probable cause that the alleged conduct was capable of transmitting
the AIDS virus?
Is it a violation of a Defendant’s rights under Article 1, Section 9 of the Texas
Constitution to protection from unreasonable search and seizure for a trial court to order
a Defendant indicted for indecency with a child to undergo an AIDS test, pursuant to
Article 21.31 of the Texas Code of Criminal Procedure, without a finding of probable
cause that alleged conduct was capable of transmitting the AIDS virus?
Is the order in question an unlawful or illegal order because it fails to track the
language of Article 21.31 of the Texas Code of Criminal Procedure?
STATEMENT OF FACTS
1. Procedural History
On December 30, 2013, Relator, Miguel Angel Yepez, was charged by
information with the offense of indecency with a child (see Appendix One). The
information alleged that Relator unlawfully engaged in sexual contact with the
complaining witness by touching the complaining witness’ genitals. Attached to the
information was an Affidavit of Probable Cause that stated the alleged contact was over
the clothing of the complaining witness.
On May 16, 2014, Relator was indicted by a Harris County Grand Jury for the
offense of indecency with a child (See Appendix Two). The indictment alleged that
7 Relator unlawfully engaged in sexual contact with the complaining witness by touching
the complaining witness’ genitals.
On March 5, 2015, the Harris County Assistant District Attorney handling the
case presented the trial court with an order for AIDS testing that was drafted by the
District Attorney’s Office. Upon presentment of the proposed order, without the benefit
of a hearing on the record, Respondent, the Honorable Ruben Guerrero, granted the
proposed order (See Appendix Three).
Relator then filed this Petition for Writ of Mandamus.
2. Order for AIDS Testing
The order signed by the trial court states that the court found, on its own motion,
that the best interests of both justice and the Relator would be served by forcing Relator
to undergo an unnecessary medical procedure.
Relator was denied a hearing on the matter to determine whether the testing
permitted under TEX.CODE CRIM.PROC. ART. 21.31 was appropriate in a matter in which
there were no allegations that any contact took place between Relator and the
complaining witness by which the AIDS virus, or any other sexually transmitted disease,
could be transferred. Relator was denied a hearing on the matter to determine whether
the proposed order, drafted by the attorney for the state, was even legal.
To date there has been no probable cause finding by the trial court that any
contact capable of transmitting the AIDS virus, or any other sexually transmitted
disease, ever occurred in the instant case.
8 3. TEX.CODE CRIM.PROC. ART. 21.31
Article 21.31 of the Texas Code of Criminal Procedure states that a person
indicted for the offense of indecency with a child “shall, at the direction of the court on
the court’s own motion,…undergo a standard diagnostic test approved by the United
States Food and Drug Administration for human immunodeficiency virus and other
sexually transmitted diseases.”
Article 21.31 contains neither a provision for a hearing to determine whether
granting the requested test is appropriate given the facts of a particular case or for a
defendant’s right to appeal such an order.
Article 21.31 also specifies that the order must be derived from the trial court’s
own motion – not a proposed order drafted and filed by the attorney for the State.
ARGUMENTS AND AUTHORITIES
I. STANDARD OF REVIEW
Mandamus is appropriate if the relator can demonstrate that (1) the act sought to
be compelled is purely ministerial, and (2) he has no other adequate legal remedy.
Neveu v. Culver, 105 SW3d 641,642 (Tex.Crim.App. 2003).
An act is considered ministerial if it does not involve the exercise of discretion.
State ex rel. Hill v. Fifth Court of Appeals, 34 SW3d 924,927 (Tex.Crime.App. 2001). In
Hill, the Court held that the consideration of “a motion properly filed and before the court
is ministerial.” Hill at 927.
The granting of a writ of mandamus is appropriate if the relator can
demonstration that (1) he has not other adequate legal remedy, and (2) he has a clear
and indisputable right to the relief sought. Id.
9 In the instant case, Respondent’s consideration of the state’s motion for AIDS
testing was purely ministerial, Relator has a clear right to the relief sought based upon
the motion and evidence before the trial court and Relator has no right to appeal the trial
court’s ruling as ti was neither evidentiary nor procedural in nature.
II. THE ACT SOUGHT TO BE COMPELLED IS PURELY MINISTERIAL
On March 5, 2015, the attorney for the state presented an order, prepared by the
Harris County District Attorney’s Office, for AIDS testing to Respondent. Without a
hearing on the merits of the state’s request, Respondent signed the order compelling
Relator to undergo an AIDS test on or before April 9, 2015.
The proposed order was presented to Respondent under the guise of Article
21.31 of the Texas Code of Criminal Procedure.
The purpose of TEX.CODE CRIM.PROC. ART. 21.31 is to determine whether the
alleged victims of a sexual offense under Articles 21.11(a), 22.021 or 22.011 of the
Texas Penal Code may have been exposed to the AIDS virus, or another sexually
transmitted disease. The article in question was enacted in response to trial courts’
orders compelling defendants to submit to AIDS testing being overturned by the Courts
of Appeal for various deficiencies in the orders.
In the instant case there is no allegation that any contact occurred between
Relator and the complaining witness that could have exposed the complaining witness
to the AIDS virus, or any other sexually transmitted disease. As Respondent made his
decision without the benefit of an evidentiary hearing, the only evidence before the court
is the Affidavit of Probable Cause attached to the original information. The
aforementioned Affidavit of Probable Cause states that Relator allegedly touched the
10 complaining witness’ genitals over her clothing. There were no allegations in the
Affidavit of Probable Cause that Relator either penetrated the genitals of the
complaining witness or made any other skin-to-skin contact.
Despite his knowledge of the allegations, and his admission that any alleged
contact was over the clothing of the complaining witness, the Assistant District Attorney
presented a proposed order to the trial court asking the trial court to compel Relator to
submit to a medical procedure to determine if he carried either the AIDS virus or any
other sexually transmitted disease.
Art. 21.31 does not contain any provision requiring a hearing to determine if the
requested testing is appropriate in any given case. The issuance of such an order is,
therefore ministerial, as it does not allow for discretion on the part of the court.
The absence of such a hearing in the instant case violated Relator’s Sixth
Amendment right to confront the witnesses and evidence against him as well as
Relator’s right to privacy under the First, Fourth, Fifth and Fourteenth Amendments to
the United States Constitution. The failure of the statute to provide for such a hearing
violated Relator’s rights under Art. 1, Sec. 9 of the Texas Constitution as well.
III. RELATOR HAS NO OTHER ADEQUATE REMEDY AT LAW
As the order signed by Respondent is not an appealable order, Relator has no
right to interlocutory appeal and, therefore, no adequate remedy at law.
IV. RELATOR HAS A CLEAR AND INDISPUTABLE RIGHT TO RELIEF
Relator was indicted for the offense of indecency with a child. Included in the
definition of sexual contact is “any touching by a person, including touching through
11 clothing…of any part of the genitals of a child…” Tex.Pen.Code § 21.11(c)(1) (emphasis
added).
In its call for AIDS testing, Art. 21.31 does not distinguish between skin-to-skin
contact and contact through the clothing. As the affidavit of probable cause attached to
the indictment in the instant case states that the alleged contact was through the
clothing of the complaining witness, the requirement that all persons indicted under the
prescribed sections of the Texas Penal Code is overbroad and subjects some of those
accused to invasions of their privacy and to unreasonable search and seizure.
Relator has a well-established right to privacy in his body under the First Fourth,
Fifth and Fourteenth Amendments to the United States Constitution and under Art. 1,
Sec. 9 of the Texas Constitution. Absent a showing that the state has a compelling
interest in violating Relator’s right to privacy, the provisions Art. 21.31 represent an
unreasonable and unconstitutional intrusion into Relator’s body.
Additionally, Art. 21.31 states that the standard diagnostic test be approved by
the United States Food and Drug Administration. The order, as drafted and submitted
by the attorney for the state, contains no such provision regarding the type of test or
what agency is to have approved said test. Therefore the order signed by Respondent
fails to track the language of the statute in question and is, itself, illegal and unlawful.
A. The statute compelling Relator to submit to an AIDS test violated Relator’s rights under the First, Fourth, Fifth and Fourteenth Amendments to the United States Constitution
The Fourth Amendment of the United States Constitution protects the people
from unreasonable search and seizure. The United States Supreme Court has held that
12 a warrantless search is unreasonable unless it falls into one of several exceptions that
the Court has carved out over time. Katz v. U.S., 389 U.S. 347, 359 (1967).
A general right to privacy is to be inferred from the First, Fourth, Fifth and
Fourteenth Amendments as well as “prenumbras of the Bill of Rights.” Roe v. Wade,
410 US 113, 152 (1973).
In order to intrude upon a person’s protection against unreasonable search and
seizure, the party seeking the warrant must show the magistrate that there is probable
cause to believe that a crime occurred and that the item or items they seek are
evidence of the alleged crime. Id. at 357.
In the instant case the order compelling Relator to undergo an AIDS test is
tantamount to a search warrant. Therefore, the order must be supported by a finding of
probable cause that a crime occurred that could lead to the complaining witness’
exposure to the AIDS virus or any other sexually transmitted disease.
As the trial court was not required by statute to conduct a hearing to determine
whether the necessary quantum of evidence existed, Relator’s right to privacy and, in
particular, his right to be free of unreasonable search and seizure, was violated without
cause. As no hearing was conducted that would require the state to produce any
evidence that the alleged contact could have exposed the complaining witness to the
AIDS virus, or any other sexually transmitted disease, we must rely on the Affidavit of
Probable Cause attached to the information filed on December 30, 2013 that makes no
such allegation.
13 Absent such evidence, the order compelling Relator to submit to an AIDS test
violated Relator’s privacy rights under the First, Fourth, Fifth and Fourteenth
Amendments to the United States Constitution.
B. The statute compelling Relator to submit to an AIDS test violated Relator’s rights under Art. 1, § 9 of the Texas Constitution
Article 1, § 9 of the Texas Constitution outlines the protections that the people in
the State of Texas have against unreasonable search and seizure at the hands of the
State.
The Fourth Amendment to the United States Constitution lays out the minimum
protections afforded to the people against unreasonable search and seizure. The states
are free to guarantee the people greater protection than that under the Bill of Rights in
their own constitutions and statutes. Cooper v. California, 386 U.S. 58, 62 (1967).
Article 1, § 9 provides the people the same protection as does the Fourth
Amendment. Heitman v. State, 815 S.W.2d 681, 682 (Tex.Crim.App. 1991). Therefore,
the people in Texas are protected against warrantless searches by the State.
Furthermore, a search warrant in Texas may only be issued upon a showing of probable
cause supported by an oath or affirmation from the party seeking the warrant.
If we analogize the order compelling Relator to submit to a medical procedure to
a search warrant, the order may only be granted upon a showing of probable cause
supported by oath or affirmation.
The only statement supported by oath or affirmation is the Affidavit of Probable
Cause attached to the information filed on December 30, 2013 in the instant case. That
affidavit alleges the contact between Relator and the complaining witness was over the
14 clothing of the complaining witness. There are no sworn allegations that there was any
skin-to-skin contact between Relator and the complaining witness’ genitals.
As such, there has been no evidence presented to the trial court to indicate that
the complaining witness in the instant case could have been exposed to the AIDS virus
or any other sexually transmitted disease. Absent such evidence, the signing of the
order in question, pursuant to Art. 21.31, by Respondent violated Relator’s protections
under Article 1, Section 9 of the Texas Constitution.
PRAYER
Relator, Miguel Angel Yepez, prays that this Court issue temporary relief by
staying the trial court’s order compelling Relator to submit to an AIDS test. Relator
further prays that this Court grant the petition for mandamus and direct the Honorable
Ruben Guerrero to withdraw the order in question. Finally, Relator prays that the Court
grant such other and further relief to which he may be justly entitled.
Dated: April 6, 2015 Respectfully submitted,
Paul B. Kennedy Paul B. Kennedy Attorney at Law SBOT: 24050866 1415 North Loop West, Suite 102 Houston, Texas 77008 Tel: (713) 864-9727 Fax (866) 587-2584 E-mail: pkennedy@kennedy-law.biz
ATTORNEY FOR RELATOR, MIGUEL ANGEL YEPEZ