Jose Angel Flores Jr. v. State

• Court: Court of Appeals of Texas
• Decided: March 23, 2015
• Docket: 04-13-00754-CR
• Status: Published

Opinion

ELECTRONIC RECORD

COA # 04-13-00754-CR OFFENSE: DWI JOSE ANGEL FLORES, JR. STYLE: V. THE STATE OF TEXAS COUNTY: GUADALUPE REVERSED AND COA DISPOSITION: REMANDED TRIAL COURT: COUNTY COURT AT LAW #2

DATE: 12/17/14 Publish: NO TC CASE #: CCL-10-0869

IN THE COURT OF CRIMINAL APPEALS

JOSE ANGEL FLORES, JR. V. STYLE: THE STATE OF TEXAS CCA #:

____________________________ Petition CCA Disposition: ____________________ FOR DISCRETIONARY REVIEW IN CCA IS: DATE: ____________________________ ___________________________________ JUDGE: ___________________________ DATE: _____________________________ SIGNED: ___________ PC: ________ JUDGE: ___________________________ PUBLISH: __________ DNP: _______

--------------------------- ______________________________ MOTION FOR REHEARING IN CCA IS: ____________________ JUDGE: __________________________________ 4th Court of Appeals Docket Sheet Case Number: 04-13-00754-CR Date Filed: 10/29/2013 8:41AM Style: Criminal - Appellant Jose Angel Flores Jr.

v.Criminal - State of Texas The State of Texas

False False True

Case Priority: Regular

Original Proceeding: No

Case Description: DWI

Punishment: 90 DAYS JAIL & $1,000 FINE. BondAmount: 1500.00 In Jail: False

Trial Court Information County Court Name Case # Judge Court Reporter Guadalupe County Court At CCL-10-0869 Honorable Frank Follis Sharron, Stacey Law No 2 Parties and Attorneys Party Party Name Remarks Counsel Code Person Name Date On Date Off Criminal - Flores, Jr., Jose Pro Se Jose Angel Flores, Jr. 10/29/2013 Appellant Angel Appointed attorney Susan Lee Schoon 11/14/2013

Criminal - State of The State of Texas District attorney Christopher M. Eaton 07/01/2014 Texas District attorney Heather McMinn 10/29/2013 07/01/2014

Interested Entities Entity Name Interested Notice Date On Date Off Entity Type Eaton, DT ATTY Yes 07/01/2014 Christopher M. 9:06AM Flores, Jr., Jose PRO SE No 10/29/2013 Angel 4:21PM Follis, Honorable TC JDG No 10/29/2013 Frank 8:54AM Kiel, Teresa CO CLK No 10/29/2013 4:05PM McMinn, Heather DT ATTY Yes 10/29/2013 07/01/20 4:17PM 14 Schoon, , Susan AP ATTY Yes 11/14/2013 Lee 12:21PM Sharron, Stacey RPT No 10/29/2013 8:55AM Events and Opinions

Event Date Stage Event Event Disposition Grouping Order Submis Description Type sion

03/16/2015 CRM APP NOTICE RECD

02/17/2015 CRM APP PDR FLD/CCA SPA

01/22/2015 FILING MT EXT PDR SPA GRANT DISP 12/17/2014 FILING MEM OPINION REVREM ISSD Opinion Type Author

Original Justice Karen Memorandum Angelini 10/07/2014 FILING SUBMITTED Brief

08/27/2014 FILING ORDER ENTERED

Report Prepared By: jquintero, on 3/23/2015 1:05:53 PM 1 of 4 4th Court of Appeals Docket Sheet Case Number: 04-13-00754-CR Date Filed: 10/29/2013 8:41AM Style: Criminal - Appellant Jose Angel Flores Jr.

False False True Events and Opinions

Event Date Stage Event Event Disposition Grouping Order Submis Description Type sion

08/27/2014 FILING SUBMISSION/ Brief OA DENIED 07/31/2014 FILING AT ISSUE

07/30/2014 FILING EBRIEF FLD STA 2:39PM NO 07/02/2014 FILING MT EXT BRIEF STA GRANT DISP 07/01/2014 FILING MT EXT BRIEF STA 11:27AM FLD 06/02/2014 FILING EBRIEF FLD APP 10:01PM YES 05/28/2014 FILING MT EXT BRIEF APP GRANT DISP 05/28/2014 FILING ORDER ENTERED 05/27/2014 FILING MT EXT BRIEF APP 6:19PM FLD 05/22/2014 FILING RECORD OUT APE

04/24/2014 FILING MT EXT BRIEF APP GRANT DISP 04/24/2014 FILING ORDER ENTERED 04/21/2014 FILING MT EXT BRIEF APP 12:49PM FLD 03/24/2014 FILING MT EXT BRIEF APP 10:55AM FLD 03/24/2014 FILING MT EXT BRIEF APP GRANT DISP 02/20/2014 FILING ERPT RPT 2:29PM RECORD FLD 02/04/2014 FILING PRESCREENE D 02/03/2014 FILING ECLK CO CLK 10:54AM RECORD FLD 01/08/2014 FILING DS FLD APP 4:34PM 01/07/2014 FILING INTERNAL APP MEMO 11/20/2013 FILING MT NEW APP TRIAL FLD 11/14/2013 FILING LTR FLD TC JDG

11/13/2013 FILING RESP FLD TC JDG

11/05/2013 FILING ORDER ENTERED 10/30/2013 FILING TELEPHONE CO CLK INQUIRY 10/30/2013 FILING TELEPHONE APP INQUIRY 10/29/2013 FILING NOA FLD/COA APP

10/29/2013 FILING CASE BEGAN

Report Prepared By: jquintero, on 3/23/2015 1:05:53 PM 2 of 4 4th Court of Appeals Docket Sheet Case Number: 04-13-00754-CR Date Filed: 10/29/2013 8:41AM Style: Criminal - Appellant Jose Angel Flores Jr.

Event Date Stage Event Event Disposition Grouping Order Submis Description Type sion

10/25/2013 FILING NOA FLD/TC APP

10/24/2013 FILING SENTENCE IMPOSED Document Summary Stage Location File Date Event File Description Index Volume Page

FILING Event 12/17/2014 MEM OPINION JUDGMENT 12/17/14 ISSD REVREM FILING Opinion 12/17/2014 MEM OPINION OPINION 12/17/14 ISSD REVREM FILING Event 11/20/2013 MT NEW TRIAL MOTION FLD APP FILING Event 11/14/2013 LTR FLD ORDER TC JDG FILING Event 11/13/2013 RESP FLD RESPONSE TC JDG FILING Event 11/05/2013 ORDER ORDER ENTERED FILING Event 10/29/2013 NOA FLD/COA CERTIFICATE OF NOTICE OF APPEAL APP FILING Event 10/29/2013 NOA FLD/COA JUDGMENT APP FILING Event 10/29/2013 NOA FLD/COA MOTION APP FILING Event 10/29/2013 NOA FLD/COA NOTICE OF APPEAL APP FILING Event 10/29/2013 NOA FLD/COA TRIAL COURT CERTIFICATION APP FILING Event 08/27/2014 ORDER ORDER DENYING 8.27.14 ENTERED FILING Event 08/27/2014 SUBMISSION/OA COVER LTR DENYING 8.27.14 DENIED FILING Event 07/30/2014 EBRIEF FLD NO BRIEF 2:39PM STA FILING Event 07/02/2014 MT EXT BRIEF ORDER DISP STA GRANT FILING Event 07/01/2014 MT EXT BRIEF MOTION 11:27AM FLD STA FILING Event 06/02/2014 EBRIEF FLD YES BRIEF 10:01PM APP FILING Event 05/28/2014 ORDER ORDER ENTERED FILING Event 05/27/2014 MT EXT BRIEF MOTION 6:19PM FLD APP FILING Event 05/22/2014 RECORD OUT REQUEST APE FILING Event 04/24/2014 ORDER ORDER ENTERED

Report Prepared By: jquintero, on 3/23/2015 1:05:53 PM 3 of 4 4th Court of Appeals Docket Sheet Case Number: 04-13-00754-CR Date Filed: 10/29/2013 8:41AM Style: Criminal - Appellant Jose Angel Flores Jr.

False False True Document Summary Stage Location File Date Event File Description Index Volume Page

FILING Event 04/21/2014 MT EXT BRIEF MOTION 12:49PM FLD APP FILING Event 03/24/2014 MT EXT BRIEF MOTION 10:55AM FLD APP FILING Event 03/24/2014 MT EXT BRIEF ORDER DISP APP GRANT CRM APP Event 03/16/2015 NOTICE RECD Crm App Notice 3-16-15

FILING Event 02/20/2014 ERPT RECORD Vol 1 Master Index State vs. Flores, Jr. 2:29PM FLD RPT FILING Event 02/20/2014 ERPT RECORD Vol 2 Motions State vs. Flores, Jr. 2:29PM FLD RPT FILING Event 02/20/2014 ERPT RECORD Vol 3 Motions State vs. Flores, Jr. 2:29PM FLD RPT FILING Event 02/20/2014 ERPT RECORD Vol 4 Plea State vs. Flores, Jr. 2:29PM FLD RPT FILING Event 02/20/2014 ERPT RECORD Vol 5 Punishment State vs. Flores, Jr. 2:29PM FLD RPT CRM APP Event 02/17/2015 PDR FLD/CCA Crm App Notice 2-17-15 SPA FILING Event 02/03/2014 ECLK RECORD TRIAL COURT CLERK'S APPLEEATE 10:54AM FLD RECORD, VOLUME 1 CO CLK FILING Event 01/22/2015 MT EXT PDR Crm App Notice 1-22-15 DISP SPA GRANT FILING Event 01/08/2014 DS FLD DOCKETING STATEMENT 4:34PM APP FILING Event 01/07/2014 INTERNAL MEMO COURTESY DOCKETING STATEMENT APP Calendars Stage Set Date Calendar Name Reason Set

FILING 10/29/2013 STAT CENTRAL STAFF REVIEW CRM APP 03/17/2015 STAT RECORD SEND

CRM APP 02/17/2015 APPL CT REVIEW

Report Prepared By: jquintero, on 3/23/2015 1:05:53 PM 4 of 4 Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-13-00754-CR

Jose Angel FLORES Jr., Appellant

v.

The STATE of Texas, Appellee

From the County Court at Law No. 2, Guadalupe County, Texas Trial Court No. CCL-10-0869 Honorable Frank Follis, Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Catherine Stone, Chief Justice Karen Angelini, Justice Rebeca C. Martinez, Justice

Delivered and Filed: December 17, 2014

REVERSED AND REMANDED

Jose Angel Flores Jr. appeals the trial court’s denial of his motion to suppress blood

evidence, arguing his motion should have been granted pursuant to the Supreme Court’s recent

decision in Missouri v. McNeely, 133 S. Ct. 1552 (2013). Because we agree that Flores’s motion

to suppress should have been granted, we reverse the judgment of the trial court and remand the

cause for a new trial. 04-13-00754-CR

BACKGROUND

On November 3, 2009, at about 8:00 p.m., Flores was stopped for a traffic violation by

Deputy Robert Williams and asked to provide a breath specimen. Flores refused. He was then

arrested and placed inside Deputy Williams’s patrol vehicle. While en route to the jail, Deputy

Williams called dispatch and asked that a background check be run on Flores. Deputy Williams

was informed by dispatch that Flores had two prior convictions for DWI. Deputy Williams then

took Flores to the medical center so that a blood sample could be taken from Flores pursuant to

section 724.012(b)(3)(B) of the Texas Transportation Code. Deputy Williams did not obtain a

warrant for the blood draw. It was later determined that Flores did not, in fact, have two prior

convictions for DWI.

This is the second time we have heard an appeal from a decision in the underlying cause.

In the first appeal, State v. Flores, 392 S.W.3d 229 (Tex. App.—San Antonio 2012, pet. ref’d), the

State appealed the trial court’s interlocutory order granting Flores’s first motion to suppress, which

had been based on a statutory violation of section 724.012(b)(3)(B). We reversed the trial court’s

order, holding that Flores had not met his burden of making a prima facie showing of a statutory

violation under section 724.012(b)(3)(B). On remand, Flores filed a second motion to suppress

based on the Supreme Court’s recent decision in McNeely, arguing that the mandatory blood draw

violated his rights under the Fourth Amendment.

On July 17, 2013, at the hearing on Flores’s second motion to suppress, the trial court took

judicial notice of the testimony that was provided in the first suppression hearing. Deputy Williams

then provided additional testimony. Deputy Williams testified that the normal business hours for

the Guadalupe County offices were 8:00 a.m. to 5:00 p.m. and that judges are not readily available

after hours. According to Deputy Williams, there must be “special circumstances” before an officer

can attempt to locate a judge outside of normal business hours, and “to do that, [the officer] ha[s] -2- 04-13-00754-CR

to go up [his] chain of command.” Deputy Williams testified that at that time, he would need to

contact and notify his supervisor, Sergeant Strauss, that he needed a warrant. Deputy Williams

testified that he did not attempt to obtain a warrant to authorize the blood draw on Flores. Deputy

Williams explained that he did not believe he needed a warrant under section 724.012(b)(3)(B).

On cross-examination, Deputy Williams confirmed that his department did, in fact, have

procedures for obtaining a warrant after normal business hours. After hearing all the evidence

presented, the trial court denied Flores’s second motion to suppress. Flores then pled guilty and

now appeals the denial of his pre-trial motion to suppress.

DISCUSSION

Flores argues that the warrantless blood draw performed on him violated his rights under

the Fourth Amendment to the Constitution. For support, Flores relies on the Supreme Court’s

decision in McNeely and this court’s decision in Weems v. State, 434 S.W.3d 655 (Tex. App.—

San Antonio 2014, pet. granted). 1 In Weems, 434 S.W.3d at 665, we analyzed McNeely and

concluded that section 724.12(b)(3)(B) does not constitute a valid exception to the Fourth

Amendment’s warrant requirement. The State recognizes the applicability of our holding in

Weems, but argues that we should reconsider our holding in Weems. We need not do so, however,

as the Texas Court of Criminal Appeals recently held in State v. Villarreal, No. PD-0306-14, 2014

WL 6734178, at *20 (Tex. Crim. App. Nov. 26, 2014), that “the provisions in the Transportation

Code do not, taken by themselves, form a constitutionally valid alternative to the Fourth

Amendment warrant requirement.” The court of criminal appeals explained that “the Supreme

Court’s holding in McNeely makes clear that drawing the blood of an individual suspected of DWI

falls under the category of cases holding that ‘a warrantless search of a person is reasonable only

1 When the trial court held its hearing on Flores’s second suppression motion, it did not have the benefit of this court’s decision in Weems.

-3- 04-13-00754-CR

if it falls within a recognized exception’ to the warrant requirement.” Villarreal, 2014 WL

6734178, at *20 (quoting McNeely, 133 S. Ct. at 1558) (emphasis added). The court of criminal

appeals emphasized that the McNeely Court “explained that such an intrusion implicates an

individual’s ‘most personal and deep-rooted expectations of privacy.’” Villarreal, 2014 WL

6734178, at *20 (quoting McNeely, 133 S. Ct. at 1558). According to the court of criminal appeals,

“[t]hese principles from McNeely—the recognition of the substantial privacy interests at stake and

the applicability of the traditional Fourth Amendment framework that requires either a warrant or

an applicable exception—apply with equal force to this case.” Villarreal, 2014 WL 6734178, at

*20. Thus, the court of criminal appeals “reject[ed] the State’s assertion that a warrantless,

nonconsensual blood draw conducted pursuant to those provisions [of the Transportation Code]

can fall under one of the established exceptions to the warrant requirement.” Id. The court of

criminal appeals further “reject[ed] the State’s suggestion that such a search may be upheld under

a general Fourth Amendment balancing test.” Id.

Alternatively, the State argues that a recognized exception to the Fourth Amendment’s

warrant requirement applies in this case—exigent circumstances. The State points to the testimony

of Deputy Williams that the traffic stop occurred after normal business hours and that before

requesting a warrant, Deputy Williams would have to go up his chain of command, which began

with Sergeant Strauss. We disagree with the State that this record supports exigent circumstances.

Exigent circumstances “applies when the exigencies of the situation make the needs of law

enforcement so compelling that a warrantless search is objectively reasonable under the Fourth

Amendment.” McNeely, 133 S. Ct. at 1558. The State had the burden below to prove the

warrantless search was reasonable pursuant to the exigent circumstances exception under the

totality of the circumstances. See Amador v. State, 275 S.W.3d 872 (Tex. Crim. App. 2009);

Gutierrez v. State, 221 S.W.3d 680, 686 (Tex. Crim. App. 2007). -4- 04-13-00754-CR

The only evidence presented at the hearing was from Deputy Williams, who confirmed that

his department did, in fact, have procedures for obtaining a warrant after normal business hours.

His knowledge on these procedures was limited. Deputy Williams knew that he had to contact his

supervisor, but did not know what occurred after he did so. Deputy Williams testified he made no

attempt to secure such a warrant by following these procedures. Thus, this record is limited in its

testimony regarding “procedures in place for obtaining a warrant or the availability of a magistrate

judge.” McNeely, 133 S. Ct. at 1568. It also does not reflect “the practical problems of obtaining a

warrant within a timeframe that still preserves the opportunity to obtain reliable evidence.” Id. We

therefore conclude that this record does not show that under the totality of the circumstances, the

warrantless blood draw was justified by the exigent circumstances exception to the Fourth

Amendment’s warrant requirement. See Weems, 434 S.W.3d at 666.

As the State did not show that the warrantless blood draw was reasonable under the Fourth

Amendment, Flores’s second motion to suppress should have been granted. After the trial court

denied Flores’s second motion to suppress, he decided to plead guilty. We cannot determine

beyond a reasonable doubt that the trial court’s failure to grant his motion to suppress did not

contribute in some measure to the State’s leverage in obtaining Flores’s guilty plea and thus to

Flores’s conviction. See TEX. R. APP. P. 44.2(a); Kennedy v. State, 338 S.W.3d 84, 102-03 (Tex.

App.—Austin 2011, no pet.).

Finally, the State argues that even if we hold that Flores’s rights under the Fourth

Amendment were violated by the warrantless, nonconsensual blood draw, the Texas exclusionary

rule as enunciated in article 38.23(a) should not apply. According to the State, the blood draw was

not taken “in violation” of law. See TEX. CODE OF CRIM. PROC. ANN. art. 38.23(a) (West 2005)

(“No evidence obtained by an officer or other person in violation of any provisions of the

Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of -5- 04-13-00754-CR

America, shall be admitted in evidence against the accused on the trial of any criminal case.”). The

State argues that “it is indisputable that the state of the law on November 3, 2009, was that

warrantless blood draws made pursuant to section 724.012(b)(3)(B) were permissible and was not

seized in violation of the law as it was understood on that day.” We disagree with the State. Section

724.012(b)(3)(B) does not explicitly authorize a warrantless search. Weems, 434 S.W.3d at 666;

see also McNeil v. State, 443 S.W.3d 295, 303 (Tex. App.—San Antonio 2014, pet. filed). It “does

not address or purport to dispense with the Fourth Amendment’s warrant requirement for blood

draws.” Weems, 434 S.W.3d at 666 (citation omitted). In responding “to the contention that the

Legislature has clearly indicated its desire to create a new exception to the warrant requirement,”

the Texas Court of Criminal Appeals observed in Villarreal, 2014 WL 6734178, at *19, that the

statutory language contained within the provisions in the Texas Transportation Code “is silent as

to whether a law-enforcement officer conducting a mandatory, nonconsensual search of a DWI

suspect’s blood is required to first seek a warrant.” Further, warrantless seizures have always been

impermissible under the Fourth Amendment unless founded on a recognized exception. See United

States v. Robinson, 414 U.S. 518, 224 (1973). In Villarreal, 2014 WL 6734178, at *19, the court

of criminal appeals emphasized that the Texas Legislature “may not restrict guaranteed rights set

out in constitutional provisions.” According to the court of criminal appeals, “[t]o the extent the

mandatory-blood-draw statute may be interpreted as authorizing a warrantless search that would

violate a defendant’s rights under the Fourth Amendment, it cannot do so.” Id.

The State also argues the Texas exclusionary rule and federal exclusionary rule should not

apply because the officer relied on section 724.012(b)(3)(B) in good faith. We rejected this

argument in Weems and in subsequent cases. See Weems, 434 S.W.3d at 666-67; see also McNeil,

443 S.W.3d at 303; Fitzgerald v. State, No. 04-13-00662-CR, 2014 WL 3747270, at *2 (Tex.

App.—San Antonio July 30, 2014, pet. filed). -6- 04-13-00754-CR

CONCLUSION

Because the warrantless blood draw violated Flores’s rights under the Fourth Amendment,

his second motion to suppress should have been granted. We thus reverse the judgment of the trial

court and remand for a new trial.

Karen Angelini, Justice

Do not publish

-7- Fourth Court of Appeals San Antonio, Texas

JUDGMENT No. 04-13-00754-CR

From the County Court at Law No. 2, Guadalupe County, Texas Trial Court No. CCL-10-0869 Honorable Frank Follis, Judge Presiding

BEFORE CHIEF JUSTICE STONE, JUSTICE ANGELINI, AND JUSTICE MARTINEZ

In accordance with this court’s opinion of this date, the judgment of the trial court is REVERSED and this cause is REMANDED to the trial court for a new trial.

SIGNED December 17, 2014.

_____________________________ Karen Angelini, Justice 1

1 REPORTER'S RECORD

2 VOLUME 1 OF 5 VOLUMES

3 TRIAL COURT CAUSE NO. CCL-10-0869

4 COURT OF APPEALS NO. 04-13-00754-CR

5 ) 6 THE STATE OF TEXAS, ) IN THE COUNTY COURT ) 7 ) Plaintiffs ) 8 ) VS. ) AT LAW NO. 2 9 ) ) 10 JOSE ANGEL FLORES, JR. ) ) 11 ) ) 12 Defendants ) GUADALUPE COUNTY, TEXAS

14 ------------------------------

15 MASTER INDEX

16 ------------------------------

18 On the 6th day of April, 2011; 17th day of July,

19 2013; 23rd day of September, 2013; and 24th day of

20 October, 2013, the following proceedings came on to be

21 heard in the above-entitled and numbered cause before

22 the Honorable Frank Follis, Judge presiding, held in

23 Seguin, Guadalupe County, Texas.

25 Proceedings reported by machine shorthand.

County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 2

1 A P P E A R A N C E S

3 FOR THE STATE:

4 MR. JONATHAN MICHELL SBOT NO. 24058610 5 ASSISTANT COUNTY ATTORNEY 211 W. COURT STREET 6 SEGUIN, TEXAS 78155 (830) 303-6130 7 AND 8 MR. JOE BUITRON 9 SBOT NO. 24053117 ASSISTANT COUNTY ATTORNEY 10 211 W. COURT STREET SEGUIN, TEXAS 78155 11 (830) 303-6130

13 FOR THE DEFENDANT:

14 MR. W. DAVID FRIESENHAHN SBOT NO. 07476350 15 LAW OFFICES OF W. DAVID FRIESENHAHN 314 N. AUSTIN STREET 16 SEGUIN, TEXAS 78155 (830) 372-2722 17

County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 3

1 MASTER CHRONOLOGICAL INDEX

2 VOLUME 1 (MASTER INDEX) 3 Page Vol.

4 April 6, 2011

5 July 17, 2013

6 September 23, 2013

7 October 24, 2013

9 Court Reporter's Certificate............ 6 1

11 VOLUME 2 (MOTIONS) 12 Page Vol.

13 APRIL 6, 2011

14 Announcements........................... 4 2

15 Opening Statement by Mr. Michell........ 4 2 Opening Statement by Mr. Friesenhahn.... 4 2 16

17 STATE'S WITNESSES Direct Cross Voir Dire Page Vol. 18 Deputy Robert Williams 5,23 19,24 2

19 State rests............................ 24 2

20 DEFENDANT'S WITNESSES Direct Cross Voir Dire Page Vol. 21 None

22 Defendant rests........................ 24 2

23 Both Sides close....................... 24 2

24 Closing Arguments by Mr. Friesenhahn... 26 2 Closing Arguments by Mr. Michell....... 26 2 25

County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 4

1 Verdict................................ 28 2

2 Adjournment............................ 28 2

3 Court Reporter's Certificate........... 29 2

4 VOLUME 3 5 (MOTIONS)

6 JULY 17, 2013

7 Announcements........................... 4 3

8 Opening Statement by Mr. Buitron........ 4 3 Opening Statement by Mr. Friesenhahn.... 4 3 9

10 STATE'S WITNESSES Direct Cross Voir Dire Page Vol. 11 Deputy Robert Williams 5 8 3

12 State rests............................ 9 3

13 DEFENDANT'S WITNESSES Direct Cross Voir Dire Page Vol. 14 None

15 Defendant rests........................ 9 3

16 Both Sides close....................... 9 3

17 Closing Arguments by Mr. Friesenhahn... 9 3 Closing Arguments by Mr. Buitron....... 10 3 18 Verdict................................ 13 3 19 Adjournment............................ 13 3 20 Court Reporter's Certificate........... 14 3 21

22 VOLUME 4 (PLEA) 23 Page Vol.

24 September 23, 2013

25 Court Reporter's Certificate........... 6 4

County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 5

1 VOLUME 5 (PUNISHMENT) 2 Page Vol. 3 OCTOBER 24, 2013 4 Court Reporter's Certificate........... 7 5 5

6 CHRONOLOGICAL WITNESS INDEX

7 Direct Cross Page Vol.

8 DEPUTY ROBERT WILLIAMS 5,23 19,24 2

9 DEPUTY ROBERT WILLIAMS 5 8 3

10 ALPHABETICAL WITNESS INDEX 11

12 Direct Cross Page Vol.

13 DEPUTY ROBERT WILLIAMS 5,23 19,24 2

14 DEPUTY ROBERT WILLIAMS 5 8 3

County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 6

1 REPORTER'S CERTIFICATE

2 THE STATE OF TEXAS ) COUNTY OF GUADALUPE ) 3

4 I, Stacey B. Sharron, Official Court Reporter in and

5 for the County Court at Law No. 2 of Guadalupe County,

6 State of Texas, do hereby certify that the above and

7 foregoing contains a true and correct transcription of

8 all portions of evidence and other proceedings requested

9 in writing by counsel for the parties to be included in

10 this volume of the Reporter's Record, in the

11 above-styled and numbered cause, all of which occurred

12 in open court or in chambers and were reported by me.

13 I further certify that this Reporter's Record of the

14 proceedings truly and correctly reflects the exhibits,

15 if any, admitted by the respective parties.

16 I further certify that the total cost for the

17 preparation of this Reporter's Record is $395.92 and was

18 paid by Guadalupe County.

19 WITNESS MY OFFICIAL HAND this 20th day of February,

20 2014.

22 ___________________________ Stacey B. Sharron, Texas CSR 7743 23 Expiration Date: 12/31/2015 Official Court Reporter 24 County Court at Law No. 2 Guadalupe County, Texas 25 Seguin, Texas 78155

County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 1

2 VOLUME 2 OF 5 VOLUMES

5 ) 6 THE STATE OF TEXAS, ) IN THE COUNTY COURT ) 7 ) Plaintiff ) 8 ) VS. ) AT LAW NO. 2 9 ) ) 10 JOSE ANGEL FLORES, JR. ) ) 11 ) ) 12 Defendant ) GUADALUPE COUNTY, TEXAS

15 ------------------------------

16 MOTIONS

17 ------------------------------

19 On the 6th day of April, 2011, the following

20 proceedings came on to be heard in the above-entitled

21 and numbered cause before the Honorable Frank Follis,

22 Judge presiding, held in Seguin, Guadalupe County,

23 Texas;

County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 2

4 MR. JONATHAN MICHELL SBOT NO. 24058610 5 ASSISTANT COUNTY ATTORNEY 211 W. COURT STREET 6 SEGUIN, TEXAS 78155 (830) 303-6130 7

9 FOR THE DEFENDANT:

10 MR. W. DAVID FRIESENHAHN SBOT NO. 07476350 11 LAW OFFICES OF W. DAVID FRIESENHAHN 314 N. AUSTIN STREET 12 SEGUIN, TEXAS 78155 (830) 372-2722 13

County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 3

1 I N D E X

2 VOLUME 1

3 (MOTIONS)

5 Page Vol.

6 APRIL 6, 2011

7 Announcements........................... 4 2

8 Opening Statement by Mr. Michell........ 4 2 Opening Statement by Mr. Friesenhahn.... 4 2 9

10 STATE'S WITNESSES Direct Cross Voir Dire Page Vol. 11 Deputy Robert Williams 5,23 19,24 2

12 State rests............................ 24 2

13 DEFENDANT'S WITNESSES Direct Cross Voir Dire Page Vol. 14 None

15 Defendant rests........................ 24 2

16 Both Sides close....................... 24 2

17 Closing Arguments by Mr. Friesenhahn... 26 2 Closing Arguments by Mr. Michell....... 26 2 18

19 Verdict................................ 28 2

20 Adjournment............................ 28 2

21 Court Reporter's Certificate........... 29 2

County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 4

1 THE COURT: Is it Jose Angel Flores that has

2 a hearing.

3 MR. FRIESENHAHN: Yes, Judge.

4 MR. MICHELL: The State is ready, Judge.

02:21PM 5 THE COURT: Mr. Friesenhahn, you have filed

6 one motion entitled Motion to Suppress Evidence?

7 MR. FRIESENHAHN: Right.

8 THE COURT: You have also filed a Motion to

9 Suppress Evidence of Retrograde Extrapolation?

02:22PM 10 MR. FRIESENHAHN: That would carry to trial.

11 THE COURT: All right. So, is the Motion to

12 Suppress Evidence what we need to hear?

13 MR. FRIESENHAHN: Yes.

14 THE COURT: Are you prepared to go forward?

02:22PM 15 MR. FRIESENHAHN: Yes.

16 THE COURT: All right. Is the State ready?

17 MR. MICHELL: Yes, sir.

18 THE COURT: How are we going to proceed?

19 MR. MICHELL: Judge, I will stipulate to a

02:22PM 20 warrantless arrest of this defendant. With regard to the

21 blood evidence that was obtained, I think the purpose of

22 this hearing is to determine whether it's initially

23 admissible at trial. I am not prepared to prove the

24 chain of custody, the toxicologist's ability to analyze

02:22PM 25 the blood, I'm just arguing the legality of the seizure

County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 5

1 in the first place.

2 MR. FRIESENHAHN: That is what our -- is --

3 THE COURT: All right. Are you prepared to

4 go forward?

5 MR. MICHELL: Yes, sir.

6 THE COURT: All right. Go ahead.

7 MR. MICHELL: The State calls Deputy

8 Williams.

9 THE COURT: Come right over here, please.

10 Raise your right hand. Have a seat in the chair, pull up

11 the chair so you can speak directly into the microphone.

12 Mr. Michell.

13 DEPUTY ROBERT WILLIAMS,

14 having been first duly sworn, testified as follows:

15 DIRECT EXAMINATION

16 BY MR. MICHELL:

17 Q. Deputy, can you state your name for the record?

18 A. Robert Williams.

19 Q. And what do you do for a living?

02:23PM 20 A. I'm a deputy sheriff with Guadalupe County

21 Sheriff's Department.

22 Q. Are you a certified peace officer?

23 A. Yes.

24 Q. And do you take courses each year to maintain

02:23PM 25 your certification?

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1 A. Yes.

2 Q. And are you -- How long have you been a certified

3 peace officer?

4 A. I've been a peace officer for three years.

02:23PM 5 Q. Have you received training in administering field

6 sobriety tests?

7 A. Yes.

8 Q. And in DWI investigations?

9 A. Yes.

02:24PM 10 Q. I'm going to draw your attention to November 3rd

11 of 2009. Were you on duty that evening?

12 A. Yes.

13 Q. What were you doing?

14 A. I was patrolling on -- in my district, just

02:24PM 15 answering calls.

16 Q. Okay. Do you recall, at about 8 o'clock that

17 evening, receiving a call about a reckless driver in a

18 semi-truck?

19 A. Yes, I was advised that there was a reckless

02:24PM 20 driver on IH-10 by our dispatch. They gave a description

21 of the vehicle and advised another vehicle was following

22 behind it with his flashers on to identify it.

23 Q. Okay. And what did they say was reckless about

24 the vehicle's driving?

02:24PM 25 A. Dispatch advised me that the person that called

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1 in, that called 911, said when they were speaking to the

2 driver of the other truck, they were both 18-wheelers,

3 when the -- when he spoke to that driver, he was slurring

4 his speech and just to him, he sounded like he was

02:25PM 5 intoxicated.

6 Q. Okay. Did they say whether they saw any bad

7 driving facts other than the slurred speech?

8 A. No.

9 Q. Okay. Did you -- which -- which highway were

02:25PM 10 they on?

11 A. Excuse me. They were headed on IH-10, Eastbound.

12 Q. Okay. Did you eventually catch up to the

13 18-wheeler that had its lights flashing?

14 A. Yeah, I was actually ahead of the vehicle. I was

02:25PM 15 near the 620, I believe, and they were calling about the

16 600-mile marker. So, I positioned my patrol unit and

17 waited for it to -- to come up.

18 Q. Okay. Did you eventually come into contact with

19 the semi-truck that the 911 caller was describing?

02:25PM 20 A. Yes.

21 Q. And what's the specific description of that

22 vehicle?

23 A. It would be a white 18-wheeler semi-cab and it

24 had a flatbed trailer with Tennessee plates.

02:26PM 25 Q. Okay. When you saw that vehicle, did you

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1 personally observe any traffic violations?

2 A. Yes, I observed the driver of the vehicle was

3 driving on the improved shoulder and I also saw the

4 driver driving in-between both lanes of traffic, the

02:26PM 5 right, I'm sorry, the right lane and the center lane. He

6 was driving in the middle of it.

7 Q. Okay. Once you observed those traffic

8 violations, what did you do?

9 A. I waited until we had a good place to stop that

02:26PM 10 was safe and I activated my emergency lights and pulled

11 the vehicle over.

12 Q. Okay. Did you make contact with the driver?

13 A. Yeah, I went up to the driver's side of the door

14 where he, the driver, opened the cab and I identified

02:26PM 15 myself as a -- as a sheriff deputy and why I stopped him.

16 Q. Okay. Do you see the driver of that vehicle in

17 the courtroom this morning?

18 A. Yes, sir.

19 Q. Or this afternoon?

02:27PM 20 A. Yes, sir.

21 Q. Could you point to him and identify an article of

22 clothing that he's wearing?

23 A. It's the gentleman sitting over here on the left

24 in a black shirt (pointing).

02:27PM 25 MR. MICHELL: Your Honor, may the record

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1 reflect the witness identified the defendant?

2 THE COURT: The record will so reflect.

3 Q. (BY MR. MICHELL:) Did you notice anything

4 unusual about the defendant when you were -- when you

02:27PM 5 made contact with him?

6 A. I smelled alcohol coming from the vehicle, as

7 soon as he opened the door. I also saw in his right hand

8 that he had a beer in his hand.

9 Q. Okay. Did you ask him to get out of the car?

02:27PM 10 A. Yeah, I asked him to -- to step out of the

11 vehicle. He wasn't, I believe he wasn't wearing a shirt.

12 So he -- he stood up and he said, "I want to grab a shirt

13 before I come out." So he stood up in his cab and walked

14 to the rear sleeping compartment and started kind of

02:27PM 15 rummaging around looking for his shirt and then his

16 paperwork.

17 Q. Other than not having the shirt on and smelling

18 of alcohol, did you notice anything else unusual about

19 the defendant?

02:28PM 20 A. He did have slurred speech. There was an open

21 container in his hand when I opened it. I could smell

22 alcohol coming from inside of the vehicle. I couldn't

23 determine at that time if it was him in person that had

24 it or smelled like it or the vehicle itself.

02:28PM 25 Q. Okay. Were you able to make that determination

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1 at some point?

2 A. As soon as he stepped out of the cab and the door

3 was shut, I could still smell it emitting from his

4 breath.

02:28PM 5 Q. Okay. Once you saw those signs, what did you

6 decide to do?

7 A. At that time I asked him to step all the way to

8 the rear of the vehicle where my car and camera was

9 positioned closer and -- and asked him if he would submit

02:28PM 10 to a breathalyzer test -- I'm sorry, a field sobriety

11 test, excuse me.

12 Q. Okay. And are you -- you said you are certified

13 in administering those?

14 A. Yes.

02:28PM 15 Q. What did he say?

16 A. He advised me that he -- he wouldn't take -- he

17 wouldn't do the tests.

18 Q. Did you ask him if he had been drinking that

19 evening?

02:29PM 20 A. Yes.

21 Q. What did he say?

22 A. Two beers.

23 Q. Okay. And he refused all of the field sobriety

24 tests?

02:29PM 25 A. Yes.

County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 11

1 Q. What did you do after he refused the other field

2 sobriety tests?

3 A. As soon as he advised that he wasn't going to

4 take any tests from all of the clues I had seen, talking

02:29PM 5 to him and inside of the vehicle, I placed him under

6 arrest for suspicion of driving while intoxicated and

7 transported him to the jail.

8 Q. When you say suspicion of driving while

9 intoxicated, did you believe you had probable cause to

02:29PM 10 arrest him?

11 A. Yes.

12 Q. Okay. What happened after -- what happened after

13 you arrested him?

14 A. While I was en route to the jail, I called

02:29PM 15 dispatch when I was getting toward their sally port and

16 asked them to run a background check on that individual

17 and dispatch came back that the subject had two prior

18 convictions for DWI.

19 Q. Okay. At some point, after you arrested him, did

02:30PM 20 you ask the defendant to provide a breath specimen?

21 A. Yes.

22 Q. And what did he say?

23 A. No. He advised no, I refuse everything.

24 Q. Okay. And your instructions when you have

02:30PM 25 reliable information from a credible source that somebody

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1 has two prior DWI convictions and they refuse a breath

2 test, what are you required to do?

3 A. Take a mandatory blood sample of the subject.

4 Q. Did you do that for this defendant?

02:30PM 5 A. Yes, he was transported to the Guadalupe County

6 or I'm sorry, Guadalupe Regional Medical Center, the GRMC

7 and I met with a licensed phlebotomist and did a blood

8 draw.

9 Q. Okay. Who transported him?

02:30PM 10 A. I transported him.

11 Q. Do you remember the name of the phlebotomist?

12 A. Diana, Diane, I think, was her first name. I --

13 I couldn't remember her last name.

14 Q. Okay. But you told them at the hospital what you

02:31PM 15 were there for?

16 A. Yes.

17 Q. Okay. When they got to the hosp -- when you got

18 to the hospital, were you present when the blood draw was

19 done on the defendant?

02:31PM 20 A. Yes, I -- I was there as -- along with Deputy

21 Wahlert.

22 Q. Okay. What was used to draw the blood from the

23 defendant?

24 A. We have basically a blood sample kit and we -- we

02:31PM 25 carry that with us or we can get it while we're at the

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1 jail. I had one in the car with me so when we went to

2 the hospital, I grabbed it out of my trunk and brought it

3 in there with me and it's got two blood vials and it's

4 got some stuff to do, to -- to -- for chain of command or

02:32PM 5 chain of evidence and stuff like that. I handed it to

6 the phlebotomist and she used a needle and withdrew out

7 of his -- out of his arm, the blood.

8 Q. Okay. What happened to the blood once -- once

9 she drew it from the defendant?

02:32PM 10 A. As soon as she finishes drawing the blood, with

11 me still in the room, I take it, put it in a -- put it in

12 this little plastic protective thing. It's just an extra

13 little layer and then I put it back into the original

14 plastic container that's got some more padding on it and

02:32PM 15 I write down who I got it from, time, date, and then I

16 seal it in the -- in the box it comes in, the cardboard

17 box.

18 Q. Okay. And you said that dispatch told you, after

19 a background check request, that he had two prior

02:32PM 20 convictions for DWI?

22 Q. Does the defendant, in fact, to your knowledge,

23 have two prior convictions for DWI?

24 A. I found out today or yesterday, I think is when I

02:33PM 25 got the subpoena, that he did not; I -- when I noticed it

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1 wasn't the -- the district attorney but the county

2 attorney.

3 Q. Okay. In your experience as a certified peace

4 officer, or when 911 -- or when your dispatcher gives you

02:33PM 5 that information, what -- what is the information coming

6 from? What system maintains that information?

7 A. They take that information from, I believe, it's

8 NCIC/TCIC database which keeps information on basically

9 anybody that's been arrested. It keeps all their

02:33PM 10 driver's license information, makes sure that they have

11 the -- the right to drive a vehicle.

12 Q. Okay. In your experience, as a certified peace

13 officer, do you find TCI information, TCIC information to

14 be reliable information?

02:33PM 15 A. Very reliable.

16 Q. In your experience, have you found the 911 -- or

17 the dispatchers with the sheriff's department to be

18 credible sources of information?

19 A. Yes, they -- they go through their own training

02:34PM 20 for that.

21 Q. Okay. Do you rely on dispatch information for

22 your safety?

24 Q. Does it -- does it inform you whether or not the

02:34PM 25 suspect has a warrant that you come in contact with?

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2 Q. If somebody deliberately enters false information

3 into TCIC records, is that a criminal offense to your

4 knowledge?

02:34PM 5 A. Yes, that is a crime in the State of Texas.

6 Q. Are you aware of any source of information or

7 evidence in the State of Texas that is 100 percent

8 accurate without exception?

9 A. No.

02:34PM 10 Q. Was the clerk's office in Guadalupe County or any

11 other county in Texas open at the time you arrested the

12 defendant?

13 A. No, I believe it was, I can't remember what time

14 it was but it was -- it was well after night, well after

02:34PM 15 closing.

16 Q. At the time you made the arrest of the defendant,

17 did you believe the information you received was reliable

18 information from a credible source?

19 A. Yes.

02:35PM 20 MR. MICHELL: Judge, we have the blood

21 evidence. I'm prepared to admit it but in terms of his

22 legal admissibility, I'm not sure how the Court would

23 like to proceed.

24 THE COURT: What is the statutory authority

02:35PM 25 for a mandatory blood draw for a person who has two prior

County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 16

1 DWI's?

2 MR. MICHELL: May I approach, Your Honor?

3 THE COURT: Yes, sir. And Mr. Friesenhahn,

4 you're welcome to approach, too.

02:35PM 5 MR. FRIESENHAHN: He's probably going to

6 have the same thing I'm looking at.

7 THE COURT: Section 724.012 of the

8 Transportation Code. Is that what you're --

9 MR. MICHELL: Yes, sir, correct.

02:35PM 10 THE COURT: Is that what you're --

11 MR. FRIESENHAHN: Yes, that's what I've got.

12 THE COURT: I assume that you have some

13 objection to this, Mr. Friesenhahn?

14 MR. FRIESENHAHN: Oh, yes.

02:36PM 15 THE COURT: Well, I mean, that's obviously

16 going to be the question here. Is there a good faith

17 exception to -- to this rule that would apply here and

18 I've heard -- is there any other evidence that we need to

19 induce here? I mean, I'm not trying to cut you off. I'm

02:37PM 20 just saying we can get to the point of this if you want.

21 MR. FRIESENHAHN: Well, it depends on how

22 you're going to rule, Judge.

23 THE COURT: Well, I understand that.

24 MR. FRIESENHAHN: Well, I guess just to

02:37PM 25 anticipate the State's argument, they're, of course,

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1 saying that what the officer had out there from dispatch

2 qualified as possessing information of convictions from

3 a, that was credible, from a reliable -- well reliable

4 information from a credible source. Of course, if you

02:37PM 5 wanted to hear additional evidence on that, I can do

6 that; we would argue that that alone was not enough.

7 THE COURT: The statute says the officer

8 possesses or receives reliable information from a

9 credible source, in which case this is, the dispatcher is

02:37PM 10 getting information from the TCIC system.

11 MR. MICHELL: Which I would argue is a

12 credible source of information which judges use in

13 magistrating defendants, which is used to warn officers

14 that someone could be armed and dangerous, or a -- a sex

02:38PM 15 offender or someone who has a protective order.

16 THE COURT: Well, I don't have any argument

17 with that. And it's just a question what happens when

18 it's wrong? Is there a good faith exception to this

19 statute that allows an officer to do this even though it

02:38PM 20 turns out later he had no authority to do it.

21 MR. MICHELL: The statute is a

22 year-and-a-half old, Your Honor. I have not found any

23 good faith exception case law but I would argue that the

24 officer complied with the law. The statute clearly

02:38PM 25 instructs peace officers, when they are in possession of

County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 18

1 reliable information from a credible source, the officer

2 shall require the taking of a blood or breath specimen.

3 That's exactly what this officer did. He received

4 reliable information that turned out to be wrong but it

02:38PM 5 is reliable information, from a credible source, his

6 dispatcher, who is certified, as the officer testified,

7 and he did a blood draw. He complied with the

8 instructions in the statute.

9 THE COURT: Well, again, I will let you

02:39PM 10 induce further evidence if you wish but I will probably

11 take this matter under advisement.

12 MR. FRIESENHAHN: I will, I would like to,

13 when he rests, of course, I need to ask him questions on

14 that issue.

02:39PM 15 THE COURT: All right. Well, I don't think

16 we need to introduce the blood sample as this point --

17 MR. FRIESENHAHN: No, probably not.

18 THE COURT: -- if that's your question. So

19 we can go forward with that.

02:39PM 20 Q. (BY MR. MICHELL:) And you said you stopped the

21 defendant on Interstate Highway 10?

22 A. Yes.

23 Q. And is that a public highway?

24 A. Yes.

02:39PM 25 Q. Is that in Guadalupe County, Texas?

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2 Q. And was that on November 3rd of 2009?

3 A. Yes.

4 Q. And you said you, you found an open container of

02:39PM 5 alcohol in his -- in his hand when he was in the car?

6 A. In his hand, yes.

7 Q. And what alcohol was that?

8 A. It was a 16-ounce beer can, I believe it was a

9 Bush can, just without looking at my notes.

02:40PM 10 MR. MICHELL: Pass the witness, Judge.

11 THE COURT: Mr. Friesenhahn.

12 CROSS-EXAMINATION

13 BY MR. FRIESENHAHN:

14 Q. Deputy, just a couple of two or three more

02:40PM 15 questions. When you were out there on the side of the

16 road, you met my client, you identified him as Jose

17 Flores; is that correct?

18 A. Yes.

19 Q. Okay. How long have you lived in Texas?

02:40PM 20 A. Approximately 16 years, 17 years.

21 Q. In the course of those 16 years, how many Jose

22 Flores' have you met?

23 A. Several.

24 Q. Okay. Pretty common name of someone who might

02:40PM 25 be -- an Anglo version might be John Smith, right?

County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 20

2 Q. Okay. Now, after you arrested Jose, did you take

3 him to the jail?

4 A. I was en route to the jail. We were in the sally

02:40PM 5 port.

6 Q. Okay. Normally the procedure would be to take,

7 correct me if I'm wrong, to take somebody from the sally

8 port, take them to a room where there's an intoxilyzer,

9 read them a statutory warning videotape and give him the

02:41PM 10 opportunity at that point to refuse a test; correct?

12 Q. Okay. And at the jail, there would have been

13 computers running where you could have run a TCIC search

14 if you had wanted to; correct?

02:41PM 15 A. No.

16 Q. Okay. Are you aware that any person off the

17 street can go online and run a -- open up an account with

18 DPS and run a TCIC for convictions?

19 A. My knowledge of it is limited of -- of how you

02:41PM 20 can gather the information, who can gather the

21 information but I know a lot of that is privileged

22 information.

23 Q. Okay. Is there some -- would there have been

24 somebody at the jail, at the sheriff's office who could

02:41PM 25 have run a rap sheet on Mr. Flores if you had booked him

County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 21

1 into the jail?

2 A. Our procedure is to go through our dispatchers.

3 Q. Okay. That's not the question. Would there have

4 been somebody available at the sheriff's office who could

02:42PM 5 verify or could have actually run a rap sheet that you

6 could have seen before you went and made a mandatory

7 blood draw?

8 A. Yes, there is.

9 Q. Let me give you a hypothetical. Let -- let's say

02:42PM 10 you stopped somebody for speeding on the side of the road

11 and it turns out that dispatch is telling you that and

12 this person has a common name, dispatch is telling you

13 this person has a warrant out for them. Is it common law

14 enforcement practice to then follow up once that person

02:42PM 15 is brought to the jail to verify that that is indeed the

16 right person who is wanted in the arrest warrant?

17 A. In -- in my past experience if, like we don't

18 have a driver's license number or an I.D. number, we can

19 use descriptive information, tattoos, size, build, just

02:43PM 20 other information like that as well to investigate what's

21 going on.

22 Q. But -- but basically what I'm gathering at, is

23 you're not required to simply rely on what dispatcher

24 tells you. You could take an additional step to verify

02:43PM 25 that somebody is really, really has convictions, is

County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 22

1 really the person in the arrest warrant, nothing like

2 that; right?

3 A. I cannot as a deputy.

4 Q. Would there have been somebody available at the

02:43PM 5 Guadalupe County Sheriff's office in that building that

6 could have done that for you?

7 A. Yes, the dispatchers.

8 Q. Did you ask Mr. Flores if he had ever been

9 convicted twice before for DWI?

02:43PM 10 A. I -- I don't remember.

11 Q. Okay. But if he had told you that, you certainly

12 would have noted it in your report?

13 A. I, believe so.

14 Q. Okay. And there's no such notation in your

02:43PM 15 report?

16 A. No.

17 Q. Okay. So, I just want to clarify, it's basically

18 your testimony today that the decision that you made to

19 do a mandatory blood draw was simply based on information

02:44PM 20 that you received from a dispatcher, not any hard written

21 evidence on, on a -- on paper, on a computer screen,

22 anything that you could have actually seen yourself?

23 A. Our policy I -- I don't know how to --

24 Q. Well, but I mean, I'm just trying to be -- I'm

02:44PM 25 just trying -- I'm not trying to cast blame officer. I'm

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1 just trying to figure out what you were relying on. And

2 it's your -- you're saying that you went simply on that

3 dispatch; right?

4 A. Our -- Yes. Our policy is to use our dispatchers

02:44PM 5 to gather that information. The deputies cannot access

6 the -- the patrol deputies, at that time, cannot access

7 that information by themselves. We have to go through

8 dispatch.

9 Q. Okay. But once you get to the -- to the jail, to

02:45PM 10 the sheriff's office, if there was any doubt in your mind

11 or any question, you could have said, could you please

12 ask someone there, can you please clarify whether this

13 person really does have convictions?

02:45PM 15 Q. But you did not do that on this evening?

17 MR. FRIESENHAHN: Okay. I'll pass the

18 witness.

19 REDIRECT EXAMINATION

02:45PM 20 BY MR. MICHELL:

21 Q. Deputy, at the time of the arrest of the

22 defendant, what were you told by the dispatcher?

23 A. He had two previous convictions for DWI.

24 Q. And you said, in your experience, your

02:45PM 25 dispatchers are credible --

County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 24

2 Q. -- sources of information?

4 MR. MICHELL: Nothing further, Judge.

02:45PM 5 MR. FRIESENHAHN: One or two more questions.

6 RECROSS-EXAMINATION

7 BY MR. FRIESENHAHN:

8 Q. Have you ever received incorrect information from

9 a dispatcher?

02:45PM 10 A. In my experience, no, not since then.

11 Q. Have you ever heard of any officer receiving

12 incorrect information from a dispatcher?

13 A. Yes, sir.

14 Q. Okay. So, you would concede that that is

02:46PM 15 possible?

17 MR. FRIESENHAHN: Okay. Pass the witness.

18 MR. MICHELL: Nothing further for this

19 witness, Judge.

02:46PM 20 THE COURT: Any objection?

21 MR. FRIESENHAHN: No.

22 THE COURT: All right. You're excused.

23 Thank you.

24 MR. MICHELL: State rests.

02:46PM 25 MR. FRIESENHAHN: We rest.

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1 THE COURT: Well, I'll take this under

2 advisement. Counsel, I would appreciate whatever you can

3 provide me. I think the question of whether the good

4 faith exception may exist in a case like this is

02:46PM 5 pertinent. It also is pertinent, for example, if a

6 person has evidence seized from him because of his

7 purported arrest on a warrant. At a hearing such as

8 this, the State is required to produce the warrant and

9 show that it's a valid warrant.

02:46PM 10 Here we have a circumstance where because of

11 purported convictions evidence was obtained; so, is it

12 similarly necessary for the State at this hearing to

13 produce evidence of those prior convictions in order to

14 back up that claim?

02:47PM 15 MR. FRIESENHAHN: I'd assume that you're

16 almost asking for a briefs hearing --

17 THE COURT: Briefs, whatever --

18 MR. FRIESENHAHN: -- final on that for us to

19 get something to you?

02:47PM 20 THE COURT: A couple of weeks.

21 MR. FRIESENHAHN: Okay.

22 THE COURT: And there may not be any case

23 law on this, that's why I'm making analogies to other

24 circumstances such as producing warrants; do you have to

02:47PM 25 produce some evidence of these prior convictions when

County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 26

1 called upon to do so by the defense in order to justify

2 this statutory exception?

3 MR. FRIESENHAHN: And Judge, not to -- we --

4 we all agree with the issue is here but just so I have a

02:47PM 5 proper record in case this case ever goes up on appeal,

6 that essentially our argument would be that, that the

7 officer did the blood draw in violation of Section

8 724.012 of the Texas Transportation Code in that he did

9 not have reliable information from a credible source in

02:47PM 10 his possession, that Mr. Flores, in fact, had two prior

11 convictions for driving while intoxicated.

12 THE COURT: Any argument, Mr. Michell?

13 MR. MICHELL: Well, Judge, I have submitted

14 two cases for the Court's consideration and I have

02:48PM 15 provided the counsel copies. Your Honor, under Garza v.

16 State, the Court of Criminal Appeals or the San Antonio

17 Court of Appeals held that courts are only obligated to

18 exclude evidence only when it violates the Fourth

19 Amendment under the United States Supreme Court's

02:48PM 20 interpretation.

21 Under Schmerber v. California, the United

22 States Supreme Court held that warrantless blood draws

23 done at the request of a police officer at a hospital by

24 a trained medical professional is not unconstitutional.

02:48PM 25 It doesn't violate the Fourth Amendment. It doesn't

County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 27

1 violate the Fifth Amendment.

2 So under Texas case law, the only issue for

3 the Court's consideration is independent state statutory

4 law and case law. And in this case, Your Honor, the

02:49PM 5 legislature is very clearly spelled out to peace

6 officers, "a peace officer shall require the taking of a

7 specimen of the person's breath or blood under any of the

8 following circumstances." And the facts just described

9 from this officer, at the time of the arrest, the officer

02:49PM 10 possesses or receives reliable information from a

11 credible source that the person has two prior convictions

12 for DWI. This is expressly why this statute is enacted

13 in the law for defendants who refuse to cooperate with

14 police officers.

02:49PM 15 The -- the analogy that the defense counsel

16 is making, well, once you got back to the jail and once

17 he'd been booked in, you could have maybe run another

18 CJIS check. That's not what the statute says, once you

19 get him back to jail, double check to make sure 911

02:49PM 20 dispatch is correct. The statute clearly states, at the

21 time of the arrest. The officer said, I believe it was

22 reliable information, it was from a credible source,

23 that's dispositive of this issue.

24 The United States Supreme Court says there's

02:50PM 25 nothing violative of the United States Constitution for

County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 28

1 this officer to have done what he did. So the only issue

2 before the Court is whether or not the officer complied

3 with the law as it is enacted by the State. I will

4 certainly try to find some case law but I believe this is

02:50PM 5 a novel, a novel situation before the court.

6 MR. FRIESENHAHN: Judge, I -- I would agree

7 that's really a Fourth Amendment issue of our motion

8 encompasses Chapter 38 of the Code of Criminal Procedure

9 which basically says that evidence has to be seized in

02:50PM 10 accordance with all the law, federal and state, and

11 that's why we're -- I agree this is a 724.012

12 transportation code issue. And we're really begging the

13 question here, what constitutes reliable evidence from a

14 credible source? And if you would allow me to continue

02:50PM 15 my argument in a form of a brief, I can get you something

16 in the next two weeks.

17 THE COURT: All right. That's fine, thank

18 you, counsel.

19 We'll be in recess until ten minutes after

20 3:00.

21 (Hearing is taken under advisement and we're

22 in recess.)

County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 29

4 I, Stacey B. Sharron, Official Court Reporter in

5 and for the County Court at Law No. 2 of Guadalupe

6 County, State of Texas, do hereby certify that the above

7 and foregoing contains a true and correct transcription

8 of all portions of evidence and other proceedings

9 requested in writing by counsel for the parties to be

10 included in this volume of the Reporter's Record, in the

13 I further certify that this Reporter's Record of

14 the proceedings truly and correctly reflects the

15 exhibits, if any, admitted by the respective parties.

17 preparation of this Reporter's Record is $__________ and

18 was paid by ____________________.

19 WITNESS MY OFFICIAL HAND this the __________ day of

20 ____________________, 2011.

22 ___________________________ Stacey B. Sharron, CSR 7743, RPR 23 Expiration Date: 12/31/2011 Official Court Reporter 24 County Court at Law No. 2 Guadalupe County, Texas 25 Seguin, Texas

County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 1

2 VOLUME 3 OF 5 VOLUMES

5 ) 6 THE STATE OF TEXAS, ) IN THE COUNTY COURT ) 7 ) Plaintiffs ) 8 ) VS. ) AT LAW NO. 2 9 ) ) 10 JOSE ANGEL FLORES, JR. ) ) 11 ) ) 12 Defendants ) GUADALUPE COUNTY, TEXAS

19 On the 17th day of July, 2013, the following

County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 2

4 MR. JOE BUITRON SBOT NO. 24053117 5 ASSISTANT COUNTY ATTORNEY 211 W. COURT STREET 6 SEGUIN, TEXAS 78155 (830) 303-6130 7

10 MR. W. DAVID FRIESENHAHN SBOT NO. 07476350 11 LAW OFFICES OF W. DAVID FRIESENHAHN 314 N. AUSTIN STREET 12 SEGUIN, TEXAS 78155 (830) 372-2722 13

County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 3

2 VOLUME

8 Opening Statement by Mr. Buitron........ 4 3 Opening Statement by Mr. Friesenhahn.... 4 3 9

10 STATE'S WITNESSES Direct Cross Voir Dire Page Vol. 11 Deputy Robert Williams 5 8 3 12 State rests............................ 9 3 13 DEFENDANT'S WITNESSES 14 Direct Cross Voir Dire Page Vol.

15 None

16 Defendant rests........................ 9 3

17 Both Sides close....................... 9 3

18 Closing Arguments by Mr. Friesenhahn... 9 3 Closing Arguments by Mr. Buitron....... 10 3 19 Verdict................................ 13 3 20 Adjournment............................ 13 3 21 Court Reporter's Certificate........... 14 3 22

County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 4

1 THE COURT: All right. Jose Angel Flores.

2 MR. FRIESENHAHN: And Judge, just by way of

3 background, this is -- we already had a suppression

4 hearing once in this case on the issue of whether the

10:58AM 5 officer had substantially complied with the mandatory

6 blood draw statute. This was the case where the officer

7 said he later found out that there were not two prior

8 convictions.

9 THE COURT: Yes.

10:58AM 10 MR. FRIESENHAHN: And so then the Court of

11 Appeals came back down. We're here today on a Missouri

12 v. McNeely motion.

13 THE COURT: All right. Are you ready to

14 proceed?

10:58AM 15 MR. FRIESENHAHN: We are Judge.

16 MR. BUITRON: Yes, yes, Your Honor. We just

17 ask that the State (sic) take judicial notice of the

18 testimony that was provided in the first suppression

19 hearing.

10:58AM 20 THE COURT: All right, sir. I'll take

21 notice of that. And Mr. Friesenhahn, what do you have to

22 offer?

23 MR. FRIESENHAHN: Judge, I -- I think we --

24 we would, again, ask you to take judicial notice of that.

10:59AM 25 I think the State wanted to recall the officer for one or

County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 5

1 two questions if I was --

2 THE COURT: All right. That's fine. Go

3 ahead.

4 MR. BUITRON: Yes, sir. Deputy williams.

10:59AM 5 State calls Deputy Williams.

6 THE COURT: All right. Come right over

7 here, please. All right. Have a seat in the chair and

8 speak right into the microphone.

9 THE WITNESS: Yes, sir.

10:59AM 10 DIRECT EXAMINATION

11 BY MR. BUITRON:

12 Q. Please state your name for the record.

13 A. Robert Williams.

14 Q. And are you the same Robert Williams who

10:59AM 15 testified at a hearing regarding this case on April 6,

16 2011?

17 A. Yes, sir.

18 Q. Do you know what day it was when you stopped

19 Mr. Flores?

10:59AM 20 A. November 3rd, 2009.

21 Q. And do you know whether it was a Monday, Tuesday,

22 Wednesday, or Thursday?

23 A. No, sir, I don't recall.

24 Q. All right. Do you know what -- what the time of

11:00AM 25 day it was when you stopped Mr. Flores?

County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 6

1 A. It was, I believe, 8 o'clock in the evening.

2 Q. Okay. Exactly when were you informed that

3 Mr. Flores had two prior convictions for driving while

4 intoxicated?

11:00AM 5 A. I had already arrested the individual and I

6 believe I was on my way to the jail or I was in the jail

7 when I was notified that he'd been arrested for two prior

8 convictions of DWI.

9 Q. It was after any investigation that you did at

11:00AM 10 the scene?

12 Q. On the road?

14 Q. How much time had elapsed from when you initially

11:00AM 15 stopped him to -- to you -- you got to the jail?

16 A. Less than an hour.

17 Q. Did you read Mr. Flores the DIC 24 and request --

19 Q. And did you request a sample of his breath?

11:01AM 20 A. Yes, I did.

21 Q. And do you know approximately what time it was

22 when you did that?

23 A. I think my stop was about maybe 8:00, 8:30 and

24 then when I got to the jail it had been about maybe an

11:01AM 25 hour in full; so it was right after I got to the jail

County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 7

1 that I started reading him the DIC 24.

2 Q. Okay. So approximately what time do you think it

3 might have been?

4 A. Probably about 9:00, 9:30.

11:01AM 5 Q. Are you aware of the normal business hours for

6 Guadalupe County offices?

7 A. Yes, sir.

8 Q. What are those normal business hours?

9 A. 8:00 to 5:00.

11:01AM 10 Q. Are -- are you aware of normal business hours for

11 the judges that work here in Guadalupe County?

12 A. Same, same business hours, 8:00 to 5:00.

13 Q. Is it standard policy or standard practice for

14 peace officers to try and locate judges outside of those

11:02AM 15 business hours?

16 A. It has to be a special circumstance and to do

17 that -- to do that, I have to go up my chain of command.

18 Q. When you say go up your chain of command, what do

19 you mean? Can you describe that?

11:02AM 20 A. At that time my chain of command was to contact

21 my supervisor, Sergeant Strauss, and notify him if -- if

22 I needed a warrant and from there he can do what his --

23 his job is which I don't -- I'm not sure what his policy

24 on that is.

11:02AM 25 Q. Are you aware if there's any judges here in

County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 8

1 Guadalupe County that make themselves readily available

2 after business hours?

3 A. No.

4 Q. When Mr. -- After Mr. Flores refused to provide a

11:03AM 5 sample of his breath, did you attempt to obtain a

6 warrant?

7 A. No, I did not.

8 Q. Why?

9 A. I did not need one. I had -- was -- The Texas

11:03AM 10 law, at that time, stated that I did not need a warrant

11 to get a blood draw because he had two previous

12 convictions under DWI statutes.

13 Q. And just to be clear this law that we're talking

14 about, is this in the transportation code?

11:03AM 15 A. Yes, sir.

16 Q. And is it Section 724.012?

18 Q. Subsection B?

19 A. Yes, sir, I believe it is.

11:03AM 20 Q. Okay.

21 MR. BUITRON: Nothing further, Your Honor.

22 CROSS-EXAMINATION

23 BY MR. FRIESENHAHN:

24 Q. Deputy, just a couple two or three follow-up

11:03AM 25 questions. Just to make clear on that evening after you

County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 9

1 arrested Mr. Flores, you never tried to obtain a search

2 warrant in order to get a sample of Mr. Flores' blood so

3 that it could be analyzed for alcohol content?

4 A. No, sir, because of the law that stated I didn't

11:04AM 5 need to.

6 Q. And that was going to be my next question.

7 Because you thought you were acting in compliance with

8 state law at the time; correct?

9 A. I knew I was.

11:04AM 10 Q. Okay. And your -- your department does, in fact,

11 have procedures for trying to obtain a warrant after

12 normal business hours but it would entail your going up

13 your chain of command; correct?

14 A. Yes, sir.

11:04AM 15 MR. FRIESENHAHN: Pass the witness.

16 MR. BUITRON: Nothing further, Your Honor.

17 THE COURT: Anything further? Any evidence?

18 MR. BUITRON: No evidence by the State, Your

19 Honor.

11:04AM 20 MR. FRIESENHAHN: None from us, Your Honor.

21 THE COURT: All right. Officer, thank you.

22 Step down, please.

23 Any argument, Mr. Friesenhahn?

24 MR. FRIESENHAHN: Yes, Judge. I think the

11:04AM 25 -- the blood test results in this case have to be

County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 10

1 suppressed under Missouri v. McNeely 133 S.Ct. 1552 cited

2 earlier this year. In that case the U.S. Supreme Court

3 said that in a DWI case where law enforcement is getting

4 a blood draw for the purposes of analysis for alcohol or

11:05AM 5 drugs, they may first obtain a search warrant absent some

6 very peculiar circumstances. The mere fact that a

7 person's alcohol concentration may be dissipating in the

8 blood stream is not in and of itself an extingent (sic)

9 circumstance.

11:05AM 10 In this case, this is a, based on the

11 testimony at a prior suppression hearing, this was a

12 routine traffic stop and a DWI arrest. He took

13 Mr. Flores to the jail. So he would have had the ability

14 to contact other officers and make an attempt to go up

11:05AM 15 his chain of his command and obtain a warrant. There was

16 a procedure in place for trying to do that. He did not

17 even make an attempt for the reason he stated at the time

18 thought he was complying with state law. So no attempt

19 was made to secure a warrant; there was no warrant.

11:06AM 20 There were procedures in place that could have been used

21 to obtain a warrant and they weren't used.

22 And for those reasons, we would ask that you

23 suppress the blood test results based on McNeely.

24 THE COURT: Mr. Buitron?

11:06AM 25 MR. BUITRON: Your Honor, the State would

County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 11

1 argue that Missouri v. McNeely does not matter in this

2 particular instance because he was relying on the

3 transportation code statute which is in three specific

4 enumerated reasons as to when you do not need a warrant.

11:06AM 5 The McNeely case did not address those specific

6 instances. The only instance the McNeely case addressed

7 was when the only reason that a warrant was not -- that

8 an officer did not go to obtain a warrant is simply

9 because the -- the blood was going to be dissipated and

11:06AM 10 metabolized naturally in -- or the alcohol was going to

11 be metabolized naturally throughout the blood and that

12 was the only reason. There is a footnote where the Texas

13 statute is cited and in that footnote there was no

14 indication that there was something wrong or -- or

11:07AM 15 invalid or unconstitutional about those statutes.

16 In addition, it would have taken a long time

17 to go get this warrant. There weren't any judges readily

18 available in order to get the chain of command that would

19 have taken extra time. Mr. Friesenhahn suggested that

11:07AM 20 only under peculiar circumstances could a warrant be

21 bypassed but the McNeely case did not suggest that. In

22 fact, the holding in the McNeely case suggested that the

23 California v. Schmerber case that suggested a totality of

24 the circumstances should be used in a case by case basis.

11:07AM 25 That -- that is still good law. And for that reason, the

County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 12

1 State would argue that the motion to suppress be denied.

2 MR. FRIESENHAHN: I would just respond in

3 two ways, Judge. I'm aware of the footnote to which

4 counsel refers. Basically, there's a footnote in McNeely

11:08AM 5 in which one of the justices states -- points to the

6 Texas statute as an example that in some circumstances

7 there may be, in fact, extingent (sic) circumstances to

8 prevent the securing of a warrant. But that -- You have

9 to remember, the Texas Transportation Code demands for a

11:08AM 10 blood draw statute. Most provisions have to do with

11 situations where there is somebody injured, there's a

12 traffic accident, things of that nature.

13 Here we have a situation where an officer's

14 been informed that somebody simply has two prior

11:08AM 15 convictions. That in and of itself doesn't create an

16 emergency or extingency (sic) that would obligate the

17 warrant requirement. And the -- the court did not go

18 into detail because it did not have the statute in front

19 of it as to whether the transportation code was

11:08AM 20 constitutional or not in any respect. It simply said you

21 have to have a warrant absent unusual circumstances.

22 Even though it would have taken additional time to get a

23 warrant, well that's the whole point of McNeely; the

24 State tried to argue that. If we try to go get a warrant

11:09AM 25 for Mr. McNeely (sic) it would have taken extra time.

County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 13

1 But the Supreme Court says that's not a good enough

2 excuse; you still have to go and make an attempt. So in

3 this case, again, there was a process set up that could

4 have been used to obtain a warrant even though the

11:09AM 5 officer thought he was complying with state statute. The

6 real question here is whether there is a genuine

7 extingency (sic) that would have prevented the securing

8 of a warrant. There wasn't. It was a plain vanilla

9 traffic stop. And so we think you have to suppress the

11:09AM 10 blood.

11 THE COURT: The Motion to Suppress Blood

12 Test and Blood Test Results pursuant to Missouri v.

13 McNeely is denied.

11:10AM 15 (Motions hearing is concluded.)

County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 14

10 included in this volume of the Reporter's Record, in the

17 preparation of this Reporter's Record is $395.92 and was

22 ___________________________ Stacey B. Sharron, CSR 7743, RPR 23 Expiration Date: 12/31/2015 Official Court Reporter 24 County Court at Law No. 2 Guadalupe County, Texas 25 Seguin, Texas

County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 1

2 VOLUME 4 OF 5 VOLUMES

5 ) 6 THE STATE OF TEXAS, ) IN THE COUNTY COURT ) 7 ) Plaintiffs ) 8 ) VS. ) AT LAW NO. 2 9 ) ) 10 JOSE ANGEL FLORES, JR. ) ) 11 ) ) 12 Defendants ) GUADALUPE COUNTY, TEXAS

16 PLEA

19 On the 23rd day of September, 2013, the following

County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 2

4 MR. JOE BUITRON SBOT NO. 24053117 5 ASSISTANT COUNTY ATTORNEY 211 W. COURT STREET 6 SEGUIN, TEXAS 78155 (830) 303-6130 7

10 MR. W. DAVID FRIESENHAHN SBOT NO. 07476350 11 LAW OFFICES OF W. DAVID FRIESENHAHN 314 N. AUSTIN STREET 12 SEGUIN, TEXAS 78155 (830) 372-2722 13

County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 3

2 (PLEA)

4 Page Vol.

5 September 23, 2013

7 Court Reporter's Certificate........... 6 4

County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 4

1 THE COURT: Jose Flores. You're charged

2 with the offense of driving while intoxicated, alleged to

3 have occurred on or about November 3rd of 2009. This is

4 a class B misdemeanor punishable by not more than

09:48AM 5 180 days in jail, a fine not to exceed $2,000. Do you

6 understand what you're charged with?

7 THE WITNESS: Yes, sir.

8 THE COURT: You have a right to a jury

9 trial. I have here a paper that says you want to give up

09:48AM 10 your right to a jury trial and try your case to me here

11 today; is that what you want to do?

12 THE WITNESS: Yes, sir.

13 THE COURT: I'll approve the waiver. To the

14 offense of driving while intoxicated, first offense, how

09:48AM 15 do you plead, guilty or not guilty?

16 MR. FRIESENHAHN: No contest.

17 THE WITNESS: No contest.

18 THE COURT: Recommendation?

19 MR. FRIESENHAHN: It's an open plea to the

09:48AM 20 Court, Judge.

21 THE COURT: All right. In that event based

22 on your plea, I find that you are guilty. The Court will

23 order a presentence investigation. You'll need to make

24 an appointment with the probation department to be

09:48AM 25 interviewed. And Mr. Friesenhahn, get the appropriate

County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 5

1 reset.

2 MR. FRIESENHAHN: Yes, Judge.

5 (Plea is concluded.)

County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 6

10 included in this volume of the Reporter's Record, in the

17 preparation of this Reporter's Record is $395.92 and was

22 ___________________________ Stacey B. Sharron, CSR 7743, RPR 23 Expiration Date: 12/31/2015 Official Court Reporter 24 County Court at Law No. 2 Guadalupe County, Texas 25 Seguin, Texas

County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 1

2 VOLUME 5 OF 5 VOLUMES

5 ) 6 THE STATE OF TEXAS, ) IN THE COUNTY COURT ) 7 ) Plaintiffs ) 8 ) VS. ) AT LAW NO. 2 9 ) ) 10 JOSE ANGEL FLORES, JR. ) ) 11 ) ) 12 Defendants ) GUADALUPE COUNTY, TEXAS

16 PUNISHMENT HEARING

19 On the 24th day of October, 2013, the following

County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 2

4 MR. JOE BUITRON SBOT NO. 24053117 5 ASSISTANT COUNTY ATTORNEY 211 W. COURT STREET 6 SEGUIN, TEXAS 78155 (830) 303-6130 7

10 MR. W. DAVID FRIESENHAHN SBOT NO. 07476350 11 LAW OFFICES OF W. DAVID FRIESENHAHN 314 N. AUSTIN STREET 12 SEGUIN, TEXAS 78155 (830) 372-2722 13

County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 3

2 (PUNISHMENT)

5 OCTOBER 24, 2013

7 Court Reporter's Certificate........... 7 5

County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 4

1 THE COURT: Jose Flores. The record

2 reflects on September 23rd of 2013, Mr. Flores plead no

3 contest to the offense of driving while intoxicated as

4 alleged. There having been no plea bargain agreement as

11:38AM 5 to punishment, the Court ordered a presentence

6 investigation to be conducted.

7 Mr. Buitron, have you had a chance to review

8 the presentence investigation?

9 MR. BUITRON: Yes, Your Honor.

11:38AM 10 THE COURT: Any objections?

11 MR. BUITRON: No.

12 THE COURT: Mr. Friesenhahn, have you

13 reviewed it?

14 MR. FRIESENHAHN: Yes, I have.

11:38AM 15 THE COURT: Any objections or corrections to

16 factual matters that need to be made?

17 MR. FRIESENHAHN: No, Judge.

18 THE COURT: Mr. Buitron, any evidence?

19 MR. BUITRON: No evidence, Your Honor.

11:38AM 20 THE COURT: Any evidence, Mr. Friesenhahn?

21 MR. FRIESENHAHN: No, Judge.

22 THE COURT: All right. Mr. Buitron, any

23 argument?

24 MR. BUITRON: I would just argue that based

11:38AM 25 on the charge itself, the driving while intoxicated, that

County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 5

1 the defendant either be probated for the maximum

2 24 months or be given at least 60 days in jail.

3 THE COURT: Mr. Friesenhahn?

4 MR. FRIESENHAHN: I would ask you to go a

11:38AM 5 little bit lower on the probation simply because this is

6 a first offense, Judge.

7 THE COURT: All right. Having reviewed the

8 evidence and the argument of counsel, the Court finds the

9 defendant is guilty of the offense of driving while

11:39AM 10 intoxicated, as alleged; assess his punishment at 90 days

11 in the Guadalupe County Jail and a $1,000 fine, plus

12 court costs.

13 Because this is not a plea bargain case you

14 have a right to appeal. You also have a right to appeal

11:39AM 15 from the motion to suppress, well it was granted, he has

16 no right to appeal from that.

17 MR. FRIESENHAHN: Well, there were two

18 motions to suppress. You denied the second one.

19 THE COURT: All right. To the extent that

11:39AM 20 you have filed pretrial motions that were denied prior to

21 trial, you have a right to appeal from those denials as

22 well as this sentence. If you wish to give notice of

23 appeal, you must do so, in writing, within 30 days of

24 today's date. If I find that you are indigent and cannot

11:39AM 25 afford an attorney on appeal, one can be appointed to

County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 6

1 represent you. And if I find that you are indigent and

2 cannot afford the reporter's record on appeal, I can

3 provide that for you also. Again, Mr. Friesenhahn is

4 certainly well familiar with this. You may want to

11:40AM 5 discuss with him your appeal options. But if you do wish

6 to appeal, you must give notice, in writing, within 30

7 days.

8 You're remanded to the bailiff for the

9 execution of this sentence. Thank you.

11 (Hearing is concluded.)

County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 7

10 included in this volume of the Reporter's Record, in the

17 preparation of this Reporter's Record is $395.92 and was

22 ___________________________ Stacey B. Sharron, CSR 7743, RPR 23 Expiration Date: 12/31/2015 Official Court Reporter 24 County Court at Law No. 2 Guadalupe County, Texas 25 Seguin, Texas

County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 CLERK'S RECORD VOLUME.-l- of.-l- Trial Court Cause No. CCL-IO-0869 In the County Court at Law #2

of Guadalupe County, Texas,

Honorable Frank Follis, Judge Presiding

State of Tens, Plaintiff

vs.

Jose Angel Flores, Jr., Defendant

Appealed to the

4th Court of Appeals at San Antonio, Texas

Attorney for Appellant: Name: Susan Schoon Address: 118 S. Union Avenue New Braunfels, TX 78130 Telephone no: (830) 627-0044 Fax no: (830) 620-5657 SBOT no: 24046803 Attorney for: Jose Angel Flores. Jr.. Appellant

Delivered to the 4th Court of Appeals at San Antonio, Texas

on the ~ day of dhrU!1fiJ' dOl

Title IJ ~ t!Lui Honorable Teresa Kiel, County Clerk Guadalupe County, Texas I DEX

THE STATE OF TEXAS § COU TY COURT AT LAW

vs. §

THE STATE OF TEXAS VS JOSE § GUADALUPE COU TY, TEXAS A GEL FLORES JR

CCL-10-0869

DOCUME T PAGE

Complaint 1-1

Information 2-2

Docket Sheet 3-7

Bond A BAIL BONDS $4000 8-8

Notice of Setting 6-2-10 9AM Arraignment 9-9

Reset 7.9.10 9AM NJ 10 - 10

Alias Capias Recalled 6-3-10 11 - 14

Reset 08.30.10 9AM NJ 15 - 15

Reset 10.6.10 9AM Pre-Trial Motions 16 - 16

Reset 11.10.10 9AM Pre-Trial Motions 17 - 17

Motion to Suppress Evidence 18 - 20

Motion to Suppress Evidence of Retrograde Extrapolation 21 - 22

State's Application for Subpoena(s) Duces Tecum - R. Williams, B. 23 - 23 Wahlert, Deputies, Guadalupe County Sheriff's Office Subpoena Returned - Deputy B. Wahlert, Executed 11.4.10 24 - 24

Subpoena Returned - Deputy R. Williams, Executed 11.4.10 25 - 25

State's First Motion for Continuance 26 - 26

Reset 1-5-11 9AM Pre-Trial Motions 27 - 27

State's Application for Subpoena(s) Duces Tecum - R. Williams & 28 - 28 B. Wahlert, Deputies, Guadalupe County Sheriff's Office

Subpoena Returned - Deputy B. Wahlert, Served 12.29.10 29 - 29

State's Second Motion for Continuance 30 - 31

Reset 4-6-11 9AM Pre-Trial Motions 32 - 32

Subpoena Returned - Deputy R. Williams, Executed 12.29.10 in 33 - 33 Person

State's Application for Subpoena(s) - Diana Machuca, Guadalupe 34 - 34 Regional Medical Center

State's Application for Subpoena(s) Duces Tecum - R. Williams, 35 - 35 Deputy B. Wahler, Deputies, Guadalupe County Sheriff's Office

Subpoena Returned - Deputy R. Williams - Executed 4.1.11 36 - 36

Subpoena Returned - Diana Machuca, Executed 4.1.11 37 - 37

Subpoena Returned - Deputy B. Wahler - Executed 4.1.11 38 - 38

Reset 5-2-11 NJ 9AM; 6-13-11 JURY 9AM 39 - 39

Case Law Albert Garza Jr. v. The State of Texas 40 - 54

Case Law Armando Schmerber v. State of California 55 - 69

Case Law Sec. 724.012 70 - 71

Case Law Vernon's Ann. Texas C.C.P. ART. 38.23 72 - 72

Correspondence - Atty David Friesenhahn and Asst. Co. Atty. 73 - 73 Jonathan Michell, Re: Motion to Suppress is Granted

State's Written Designation Specifying Matters for Inclusion in 74 - 75 Clerk's Record

State's Motion for Findings of Fact and Conclusions of Law 76 - 77

State's Motion for Preparation of Reporter's Record and Designation 78 - 79 of Matters to be Included

State's Notice of Interlocutory Appeal and Motion to Stay Trial 80 - 82 Proceedings Pending Appeal

Corrected Letter from the 4th Court of Appeals, Re: Docketing 83 - 83 Statement

Correspondence from 4th Court of Appeals, Re: The Trial Court's 84 - 85 Certification and Docketing Statement

Designation of State's Expert Witnesses - Al McDougall, Technical 86 - 86 Supervisor; Melinda Casares, Technical Supervisor; Jim Burris, Toxicologist, DPS Crime Lab; Renee Hawkins, Toxicologist, DPS Crime Lab

Reset 11-14-11 9AM JURY 87 - 87

State's Proposed Findings of Fact and Conclusions of Law 88 - 90

Order of the Court Entering Findings of Fact and Conclusions of 91 - 92 Law

Correspondence from 4th Court of Appeals, re: Order Issued 93 - 93

Order Remanding to Trial Court to Make Additional Findings of 94 - 97 Fact and Conclusions of Law

State's Motion to Reconsider Suppression Ruling and, Additionally 98 - 106 and Alternatively, State's Request for Findings of Fact and Conclusions of Law

Defendant's Motion for Continuance 107 - 108

Reset 1/23/12 9AM JURY 109 - 109

Supplemental Order of the Court Entering Findings of Fact and 110 - 110 Conclusions of Law

Correspondence from the 4th Court of Appeals Re: Clerk's 111 - 112 Supplemental Record Filing

State's Objection to the Court's Findings of Fact and Conclusions of 113 - 116 Law

Correspondence from 4th Court of Appeals Re: Filing of Appellant's 117 - 117 Supplemental Clerk's Record

Reset 6/15/12 9:00 AM NJ 118 - 118

Correspondence from 4th Court of Appeals Re: Order Issued 119 - 120

Order Issued by the 4th Court of Appeals Reinstating Appeal 121 - 121

Reset 11.16.12 9am NJ 122 - 122

Reset 1.25.13 9am NJ 123 - 123

Opinion from 4th Court of Appeals 124 - 141

Judgment from 4th Court of Appeals, re: Motion to Supress is 142 - 142 reversed and appeal remanded

Motion to Modify Bond 143 - 145

Reset 4-29-13 9am NJ 146 - 146

Reset 05.31.13 at 9am for non-jury 147 - 147

Mandate from the 4th Court of Appeals; Motion to Supress is 148 - 149 reversed

Motion to Suppress Blood Test and Blood Test Results Pursuant to 150 - 151 Missouri V. McNeely

Reset 7-17-13 9am Pre trial motions 152 - 152

State's Application for Subpoena(s) - R. Williams, B. Wahlert, 153 - 153 Deputies, Guadalupe County Sheriff's Office

State's Application for Subpoena Duces Tecum - Melanie Flater, 154 - 154 Forensic Scientist, TX DPS Austin Laboratory

Subpoena Returned - Deputy B. Wahlert - Executed 7/12/13 155 - 155

Reset 9.23.13 9am Jury 156 - 156 Subpoena Returned - Deputy R. Williams - Executed 7-12-13 157 - 157

State's Application for Subpoena Duces Tecum - Melanie Flater, 158 - 158 Forensic Scientist, TX DPS Laboratory

State's Application for Subpoena(s) - R. Williams, B. Wahlert and J. 159 - 159 Strause, Deputies, Guadalupe County Sheriff's Office; Diana Machuca, Guadalupe Regional Medical Center

Subpoena Returned - Deputy B. Wahlert - Executed 8-26-13 160 - 160

Subpoena Returned - Deputy J. Strause - Executed 8-26-13 161 - 161

Subpoena Returned - Deputy R. Williams - Executed 8-29-13 162 - 162

Subpoena Returned - Melanie Flater, Forensic Scientist, TX DPS 163 - 164 Laboratory - Returned Unserved, "Not Needed"

Subpoena Returned - Diana Machuca, Guadalupe Regional Medical 165 - 165 Center - Executed 9-5-13

Reset 10.21.13 9am Sent 166 - 166

Citizenship Waiver 167 - 167

Stipulation(s) 168 - 168

Motion for Probation/Deferred Adjudication 169 - 169

Reset 10-24-13 for assessment of pun/sent 9am 170 - 170

Trial Court's Certificate of Defendant's Right to Appeal 171 - 171

Bill of Cost 172 - 172

Judgment 173 - 173

Fax Transmittal To GCSO Re: Bond Set Pending Appeal 174 - 176

Motion to Reinstate/Set Bail Pending Appeal 177 - 178

Notice of Appeal - Jose Angel Flores 179 - 179

Motion to Withdraw as Counsel - W. David Friesenhahn, granted per 180 - 181 Judge Follis

Affidavit of Indigency 182 - 183

Clerk's Certificate Notice of Appeal 184 - 184 Fax Transmittal to 4th Court of Appeals 185 - 186

Bond $1,500.00 Guadalupe Bail Bonds; Posted 10-26-13 187 - 187

Correspondence from 4th Court of Appeals Re: Docketing Statement 188 - 188

Correspondence from 4th Court of Appeals Re: Order for Amended 189 - 190 Trial Court's Certificate

Letter appointing Susan Schoon, Attorney for Defense 191 - 192

Letter from Judge Frank Follis Re: Plea-Bargain Case & Trial Court 193 - 193 Certificate

Trial Court's Certificate of Defendant's Right to Appeal 194 - 194

Fax Transmittal to County Attorney - 4th Court of Appeals Re: 195 - 196 Court Appointment letter

Appointment Letter, Faxed to 4th Court of Appeals. 197 - 199

Correspondence from 4th Court of Appeals Re: Response from 200 - 200 Judge Follis

Correspondence from 4th Court of Appeals Re: Court Appointed 201 - 201 Attorney

Motion for New Trial and Motion in Arrest of Judgment; Denied per 202 - 206 Judge Follis 11.22.13

Fax Transmittal to 4th Court of Appeals Re: Motion for New Trial 207 - 208

Motion for Reporter's Record at No Cost on Appeal, Granted 1/7/14 209 - 212 per Judge Follis

Written Designation Specifying Matters for Inclusion in Clerk's 213 - 215 Record

Request for Preparaton of Reporter's Record and Designation of 216 - 218 Matters to be Included

Clerk's Certificate That Appellant Record is True and Correct 219 - 219 Page 1 Page 2 Page 3 Page 4 Page 5 Page 6 Page 7 Page 8 Page 9 Page 10 Page 11 Page 12 Page 13 Page 14 Page 15 Page 16 Page 17 Page 18 Page 19 Page 20 Page 21 Page 22 Page 23 Page 24 Page 25 Page 26 Page 27 Page 28 Page 29 Page 30 Page 31 Page 32 Page 33 Page 34 Page 35 Page 36 Page 37 Page 38 Page 39 Page 40 Page 41 Page 42 Page 43 Page 44 Page 45 Page 46 Page 47 Page 48 Page 49 Page 50 Page 51 Page 52 Page 53 Page 54 Page 55 Page 56 Page 57 Page 58 Page 59 Page 60 Page 61 Page 62 Page 63 Page 64 Page 65 Page 66 Page 67 Page 68 Page 69 Page 70 Page 71 Page 72 Page 73 Page 74 Page 75 Page 76 Page 77 Page 78 Page 79 Page 80 Page 81 Page 82 Page 83 Page 84 Page 85 Page 86 Page 87 Page 88 Page 89 Page 90 Page 91 Page 92 Page 93 Page 94 Page 95 Page 96 Page 97 Page 98 Page 99 Page 100 Page 101 Page 102 Page 103 Page 104 Page 105 Page 106 Page 107 Page 108 Page 109 Page 110 Page 111 Page 112 Page 113 Page 114 Page 115 Page 116 Page 117 Page 118 Page 119 Page 120 Page 121 Page 122 Page 123 Page 124 Page 125 Page 126 Page 127 Page 128 Page 129 Page 130 Page 131 Page 132 Page 133 Page 134 Page 135 Page 136 Page 137 Page 138 Page 139 Page 140 Page 141 Page 142 Page 143 Page 144 Page 145 Page 146 Page 147 Page 148 Page 149 Page 150 Page 151 Page 152 Page 153 Page 154 Page 155 Page 156 Page 157 Page 158 Page 159 Page 160 Page 161 Page 162 Page 163 Page 164 Page 165 Page 166 Page 167 Page 168 Page 169 Page 170 Page 171 Page 172 Page 173 Page 174 Page 175 Page 176 Page 177 Page 178 Page 179 Page 180 Page 181 Page 182 Page 183 Page 184 Page 185 Page 186 Page 187 Page 188 Page 189 Page 190 Page 191 Page 192 Page 193 Page 194 Page 195 Page 196 Page 197 Page 198 Page 199 Page 200 Page 201 Page 202 Page 203 Page 204 Page 205 Page 206 Page 207 Page 208 Page 209 Page 210 Page 211 Page 212 Page 213 Page 214 Page 215 Page 216 Page 217 Page 218 Page 219 ACCEPTED 04-13-00754-CR FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 6/2/2014 10:01:05 PM KEITH HOTTLE CLERK ACCEPTED 04-13-00754-CR FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 7/30/2014 2:39:30 PM KEITH HOTTLE CLERK

NO 04-13-00754-CR

In The Court Of Appeals For The Fourth Supreme Judicial District of Texas San Antonio, Texas

JOSE ANGEL FLORES JR.,

Appellant

THE STATE OF TEXAS

Appellee

On Appeal From the County Court At Law No. 2 Of Guadalupe County, Texas Hon. Frank Follis Trial Court Cause No. CCL-10-0869

APPELLEE’S BRIEF

_______________________ Christopher M. Eaton Assistant County Attorney Guadalupe County, Texas State Bar No. 24048238 211 W. Court St., 3rd Floor Seguin, Texas 78155 Phone: (830) 303-6130 Fax: (830) 379-9491 Attorney for Appellee NAMES OF THE PARTIES

1. Jose Flores Jr. is the appellant.

2. David Friesenhahn represented the appellant at the trial court.

3. Joe Buitron represented the State of Texas at the trial court.

4. Susan Schoon represents the appellant in his appeal to this Honorable Court.

5. Christopher Eaton represents the State of Texas for purposes of this appeal.

i TABLE OF CONTENTS

NAMES OF THE PARTIES…………………………………………………………i

TABLE OF CONTENTS…………………………………………………………….ii

TABLE OF AUTHORITIES…………………………………………………………v

Texas Appellate Court Cases…………………………………………………….v

Texas Court of Criminal Appeals Cases………………………………………....vi

U.S. Supreme Court Cases……………………………………………………….vi

Statutes…………………………………………………………………………...vii

STATEMENT REGARDING ORAL ARGUMENT………………………………..viii

ISSUES FOR REVIEW………………………………………………………………ix

The trial properly denied appellant’s motion to suppress because appellant’s blood was not seized in violation of 38.23(a) of the Texas Code of Criminal Procedure or the Fourth Amendment of the United States Constitution.…………….……………………………………………………..ix

STATEMENT OF THE CASE………………………………………………….…….1

STATEMENT OF THE FACTS………………………………………………….…...1

SUMMARY OF THE ARGUMENT………………………………………………….3

ARGUMENT AND AUTHORITIES…………………………………………………5

REPLY POINT 1: THE TRIAL COURT’S RULING SHOULD BE UPHELD BECAUSE DEPUTY WILLIAMS’S SEIZURE OF APPELLANT’S BLOOD DID NOT VIOLATE SECTION 38.23 OR THE FOURTH AMENDMENT BECAUSE AT THE TIME OF THE ACT, DEPUTY WILLIAM’S SEIZURE OF APPELLANT’S BLOOD WAS NOT IN VIOLATION OF THE LAW AS CONTEMPLATED BY 38.23(a), WAS SEIZED IN GOOD FAITH RELIANCE ON A DULY PASSED STATUTE, DEPUTY WILLIAMS POSSESSED SUFFICIENT

ii EXIGENT CIRCUMSTANCES TO JUSTIFY THE SEIZURE, AND THE BLOOD WAS TAKEN PURSUANT TO SECTION 724.012(b)(3)(B) OF THE TEXAS TRANSPORTATION CODE………………………………….5

A. Standard of Review………………………………………………...6

B. Even if the appellant’s blood was seized in violation of the Supreme Court’s 2013 decision in McNeely v. Missouri, the trial court’s ruling should still be upheld because the seizure of appellant’s blood does not violate 38.23(a) of the Texas Code of Criminal Procedure of nor the Federal Exclusionary Rule of the Fourth Amendment…………………………………………………6

1. Section 38.23(a) of the Texas Code of Criminal Procedure 38.23(a) should be read to prohibit the use of evidence seized in violation of the law as the law existed on the day of the seizure and not the law as it is existed four years later. Any other reading of 38.23(a) places law enforcement in an impossible position and leads to absurd results the legislature could not have intended when it passed that statute…………………………………………...6

2. In addition to not violating 38.23(a), Deputy Williams Seizure of Appellant’s blood does not violate federal exclusionary rule to the Fourth Amendment to the United States Constitution because it was seized in a good faith reliance on section 724.012(b) of the Texas Transportation Code………………………………………………………..13

C. The trial properly denied appellant’s motion to suppress because appellant’s blood was seized pursuant to the exigent circumstances exception to the Fourth Amendment ....................... 15

D. The trial court’s ruling should be upheld because Deputy Williams seized the appellant’s blood in compliance of 724.012(b), which does not violate the 4th Amendment nor conflict with the Supreme Court’s decision in McNeely v. Missouri. Therefore, appellee believes Weems v. State was incorrectly decided and respectfully requests that this Honorable Court revisit its holding in that case. ……………………………....19

iii PRAYER……………………………………………………………………………….23

CERTIFICATE OF SERVICE………………………………………………………....24

iv TABLE OF AUTHORITIES

Texas Appellate Court Cases

Aviles v. State, 385 S.W.3d 110 (Tex. App--San Antonio, 2012) ..................................................................................... 9, 21

Bachick v. State, 30 S.W.3d 552 (Tex. App.—Ft. Worth, 2000) ....................................................................................... 7, 13

Douds v. State, --- S.W.3d--- 2014 WL 2619863 (Tex. App-Houston [14th], June 5, 2014) ................................................... 9, 10, 13, 16, 17

Douds v. State, No.14-12-00642-CR (Tex. App-Houston [14th], October 15, 2013) .............................................................. 9, 10

Flores v. State, 392 S.W.3d 229 (Tex. App.—San Antonio 2012, pet. ref’d)..................................................................... 1, 2

Reeder v. State, 2014 WL 60162 (Tex. App.—Texarkana, Jan. 8, 2014) .......................................................................... 9, 10

Reeder v. State, 428 S.W.3d 924 (Tex. App.—Texarkana, April 29, 2014) .......................................................... 9, 10, 17, 21

Smith v. State, 2013 WL 5970400 (Tex. App.—Corpus Christi, 2013) ............................................................................... 9, 10

Sutherland v. State,---S.W.3d--- 2014 WL 1370118 (Tex. App.—Amarillo, 2014) ................................................................................ 13, 17, 21

Villarreal v. State, 2014 WL 1257150 (Tex. App.—Corpus Christi, 2013). ...................................................................... 10, 17, 22

Weems v. State, ---S.W.3d--- 2014 WL 2532299 (Tex. App—San Antonio, 2014) ........................................... 8, 9, 10, 11, 13, 17, 21, 22, 23

v Wehrenberg v. State, 416 S.W.3d 458 (Tex. Crim. App. 2013) ..................................................................................................... 11

Texas Court of Criminal Appeals Cases

Beeman v. State, 86 S.W.3d 613 (Tex. Crim. App. 2002) ................................................................................................. 9, 20

Cantu v. State, 842 S.W.2d 682 (Tex. Crim. App. 1982) ................................................................................................. 6, 18

Chavez v. State, 9 S.W.3d 817 (Tex. Crim. App. 2000) ....................................................................................................... 8

Daugherty v. State, 931 S.W.2d 268 (Tex. Crim. App. 1996) ..................................................................................... 8, 10, 11, 13

Estrada v. State, 154 S.W.3d 604 (Tex. Crim. App. 2005) ..................................................................................................... 18

Turrubiate v. State, 399 S.W.3d 150 (Tex. Crim. App. 2013) ....................................................................................................... 6

Valtierra v. State, 310 S.W.3d 447 (Tex. Crim. App. 2010) ....................................................................................................... 6

Weaver v. State, 349 S.W.3d 521 (Tex. Crim. App. 2011) ....................................................................................................... 6

United States Supreme Court cases

Aviles v. Texas, 134 S.Ct. 902 (Jan. 13 2014) .............................................................. 9, 10

Griffith v. Kentucky, 479 U.S. 314 (1987).................................................................. 11, 14

Illinois v. Krull, 480 U.S. 340 (1987)................................................................................ 14

vi Kentucky v. King, 563 U.S. ---, 131 S.Ct. 1849, 179 L.Ed.2d 865 (2011). ...................... 16

Mapp v. Ohio, 367 U.S. 643 (1961) .................................................................................... 7

McNeely v. Missouri, ---U.S.--- 133 S.Ct. 1552 185 L.Ed.2d 698 (2013) 15, 16, 18, 19, 22

Schmerber v. California, 384 U.S. 757 (1966) .................................................................. 15

South Dakota v. Neville, 459 U.S. 553 (1983) ............................................................ 22, 23

United States v. Davis, ---U.S.---, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011) .. 7, 11, 13, 15

United States v. Leon, 468 U.S. 897 (1984) ...................................................................... 14

Texas Statutes

Tex. Crim. Proc Code. Ann. § 38.23 ................................................................................... 7

Tex. Transp. Code Ann. § 724.011 ............................................................................. 19, 22

Tex. Transp. Code Ann. § 724.012(b) ......................................................................... 19, 20

vii STATEMENT REGARDING ORAL ARGUMENT

Oral argument requested.

viii ISSUES PRESENTED

The trial properly denied appellant’s motion to suppress because appellant’s blood was not seized in violation of 38.23(a) of the Texas Code of Criminal Procedure or the Fourth Amendment of the United States Constitution.

ix STATEMENT OF THE CASE

Appellant was charged with Driving While Intoxicated/Open Container (Clerk’s

Record (“CR”), pg. 1-2). On November 3rd, 2010, appellant filed a motion to suppress the

blood evidence on the grounds the appellant did not have two prior convictions as

required by the Texas Transportation Code. Id at 18-20. That motion was granted by

Judge Frank Follis. Id at 73. The State appealed that ruling to this Honorable Court who

reversed that decisions and remanded the case back to the trial court on December 5,

2012 (designated as Flores I in this brief). Id at 87, 124-141. The Court of Criminal

Appeals refused appellant’s request for discretionary review.

On May 31, 2013, appellant filed a second motion to suppress in light of the Supreme

Court’s decision in Missouri v. McNeely. Id at 150-151. That motion was set for hearing

on July 16, 2013. Id at 151-52. After hearing evidence and argument, the trial court

denied the motion to suppress. (Reporter’s Record (“RR”), Vol. 3, pg. 13) On September

23, 2013, appellant plead no contest to the charge and was eventually sentenced to 90

days in jail and a $1,000 fine. (RR, Vol. 5 pg. 5). Appellant then appealed his conviction.

(CR at 179). That appeal is the case that is currently before this court and will be

designated as Flores II for purposes of this appeal. Flores v. State, 392 S.W.3d 229 (Tex.

App.—San Antonio 2012, pet. ref’d).

STATEMENT OF FACTS

During both motions to suppress, the only witness to testify was Deputy Robert

Williams of the Guadalupe County Sherriff’s Office. (RR, Vol. 1 & Vol. 3). At the first

motion to suppress, Deputy Williams testified that at 8 p.m. on the date of the offense he

1 received a report that someone had called 911 to report a reckless driver operating a

semi-truck. (RR, Vol. 1, pg. 6). According to Deputy Williams, the caller said that

appellant sounded intoxicated. Id. at 7. When Deputy Williams spotted the vehicle he

observed it driving on the improved shoulder and in between both lanes traffic. Id. at 8.

After observing the traffic violations, Deputy Williams pulled the vehicle over. Id.

Upon the defendant exiting the vehicle, Deputy Williams reported smelling the odor

of alcohol coming from the vehicle and appellant. Id. at 9-10. Deputy Williams also

observed that appellant was not wearing a shirt and had a beer in his right hand. Id. at 9.

In addition, appellant admitted to drinking two beers. Id. at 10. Appellant was offered the

chance to do field sobriety tests, but refused and was placed under arrest for driving while

intoxicated. Id. at 10-11. At some point Deputy Williams asked appellant for a breath

sample and appellant refused. Id. at 11.

While in route to the jail’s sally port, Deputy Williams requested a background

check on appellant and dispatch informed him that appellant had two prior convictions.

Id. Upon learning that, Deputy Williams transported appellant to the hospital and

withdrew appellant’s blood. Id. at 11-13. Deputy Williams did not learn to appellant did

not, in fact, have two prior convictions until just before the hearing on the first motion to

suppress. Deputy Williams’s reliance on the information provided by dispatch was

upheld in Flores I. Id. at 13-14. Flores v. State, 392 S.W.3d 229 (Tex. App.—San

Antonio 2012, pet. ref’d).

During the second motion to suppress, Deputy Williams testified it was somewhere

between less than an hour to an hour after the initial stop that he arrived at jail. (RR Vol.

2 3, pg. 6-7). Though Deputy Williams admitted that he did not seek a warrant because he

did not believe he had too under the Texas Transportation Code’s mandatory blood draw

statute, he also testified that County’s business hours were from 8 am to 5 pm and that he

was not aware that any Guadalupe County magistrate that made themselves readily

available after those hours. Id at 7. In addition, Deputy Williams stated that it has to be a

special circumstance and that he must go up the chain of command to obtain a warrant.

Specifically, he would have to contact Sgt. Strauss and Sgt. Strauss would do whatever

he needed to do, though he was not sure what Straus’s policy was. Id. at 7

SUMMARY OF THE ARGUMENTS

The trial court properly denied appellant’s motion to suppress evidence. First, the

evidence was not seized in violation of the law as contemplated by section 38.23(a) of the

Texas Code of Criminal Procedure. The plain meaning of “in violation” of the law refers

to the state of the law at the time of seizure and not the law as it exists after the fact. In

this case, the evidence was seized on November 3rd, 2009. The decisions by this state’s

appellate courts make it clear that from 2002 until January 13, 2014 they too believed that

warrantless seizures made pursuant to 724.012(b)(3)(B) were valid. This belief only

changed in January 2014 when the Supreme Court vacated Aviles v. State. Therefore,

even if the seizure of appellant’s blood does not comport with the 2013 holding in

McNeely, it was not seized in violation of the law at the time the seizure took place. The

state of the law at that time was that searches pursuant 724.012 were valid and, thus,

38.23(a) does not require suppression of appellant’s blood.

3 Any other reading of the 38.23(a) creates absurd results. It places law enforcement

in an impossible position where they are required to seize evidence in accordance with

the law, but still risk of having their evidence suppressed despite that reliance if

subsequent developments declare their actions invalid well after the fact. In other words,

if one court or legislature declares unconstitutional what previous court or legislature

blesses (as happened in this case) then the evidence is still suppressed despite law

enforcements reliance on those previous pronouncements. Such a result has no deterrent

effect and simply punishes law enforcement for doing what is required of them: acting in

accordance with the law as it exists when they seize the evidence.

The seizure of appellant’s evidence also does not violate the Fourth Amendment

or the federal exclusionary rule because the evidence was seized in a good faith reliance

on a duly passed statute. Suppression would not further the basic purpose of the

exclusionary rule and would lead to the exact same absurd results that would occurred if

the evidence were suppressed under section 38.23(a) of the Code of Criminal Procedure.

Second, the seizure of appellant’s blood also falls under the exigent circumstances

exception to the Fourth Amendment. The evidence in this case was seized well after

normal operating hours in a county whose magistrates, unlike Bexar or Travis County, do

not make themselves available after normal business hours. Additionally, obtaining a

search warrant would require a request that would have had to make its way up the chain

of command with no certainty that all members of it were available and with no

reasonable chance that it would successfully locate a magistrate who could issue the

4 warrant. Meanwhile, Deputy Williams would have been forced to stand pat and wait as

his evidence was destroyed.

Finally, appellee believes that this and other Courts of Appeals have read too much

into the Supreme Court’s vacating of Aviles v. State. In McNeely v. Missouri, the Court

speaks favorably of implied consent laws and in cases like South Dakota v. Neville shown

that it is not uncomfortable either implying consent to motorists nor, in effect, punishing

them for asserting their Fourth Amendment rights. Consequently, appellee believes it is

far from certain that the Supreme Court would see blood draws take pursuant to an

implied consent statute as a violation of the Fourth Amendment under McNeely.

Moreover, because Aviles was decided before McNeely it does not mention the case in

any form. As a result, the Supreme Court’s vacation of Aviles is unsurprising, but had it

intended that act as a signal that warrantless seizures pursuant to 724.012(b)(3)(B), alone,

were a violation of McNeely it could have simply taken the case and done so. Therefore,

appellee respectfully requests this Honorable Court revisit it’s abandonment of Beeman v.

State and uphold the seizure of appellant’s blood.

ARGUMENTS AND AUTHORITIES

REPLY POINT 1: THE TRIAL COURT’S RULING SHOULD BE UPHELD BECAUSE DEPUTY WILLIAMS’S SEIZURE OF APPELLANT’S BLOOD DID NOT VIOLATE SECTION 38.23 OR THE FOURTH AMENDMENT BECAUSE AT THE TIME OF THE ACT, DEPUTY WILLIAM’S SEIZURE OF APPELLANT’S BLOOD WAS NOT IN VIOLATION OF THE LAW AS CONTEMPLATED BY 38.23(a), WAS SEIZED IN GOOD FAITH RELIANCE ON A DULY PASSED STATUTE, DEPUTY WILLIAMS POSSESSED SUFFICIENT EXIGENT CIRCUMSTANCES TO JUSTIFY THE SEIZURE, AND THE BLOOD WAS TAKEN PURSUANT TO SECTION 724.012(b)(3)(B) OF THE TEXAS TRANSPORTATION CODE.

5 A. Standard of Review

A trial court’s denial of a motion to suppress is reviewed under a bifurcated standard.

Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2013). The trial court’s

findings of facts are reviewed under an abuse of discretion standard. Id. An abuse of

discretion exists when a ruling is so clearly wrong as to be “outside the zone within

which reasonable persons might disagree.” Cantu v. State, 842 S.W.2d 667, 682 (Tex.

Crim. App. 1982). The application of the law to those facts is reviewed de novo.

Turrubiate, 399 S.W.3d at 150.

Appellate courts give almost total deference to the trial court’s determination of the

facts supported by the record, especially when the trial court’s findings are based on an

evaluation of credibility and demeanor. Id. If the trial court does not make explicit

findings of fact, then the evidence is viewed in light most favorable to the trial court’s

ruling and the appellate court assumes that the trial court made implicit findings of fact

supported by the record. Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010).

In other words, the court is to give the prevailing party “the strongest legitimate view of

the evidence, and all reasonable inferences that may be drawn from the evidence.”

Weaver v. State, 349 S.W.3d 521, 525 (Tex. Crim. App. 2011).

B. Even if the appellant’s blood was seized in violation of the Supreme Court’s 2013 decision in McNeely v. Missouri, the trial court’s ruling should still be upheld because the seizure of appellant’s blood does not violate 38.23(a) of the Texas Code of Criminal Procedure of nor the Federal Exclusionary Rule of the Fourth Amendment.

1. Section 38.23(a) of the Texas Code of Criminal Procedure 38.23(a) should be read to prohibit the use of evidence seized in violation of the law as the law existed on the day of the seizure and not the law as it is existed four

6 years later. Any other reading of 38.23(a) places law enforcement in an impossible position and leads to absurd results the legislature could not have intended when it passed that statute.

Under the exclusionary rule, evidence that is seized in violation of the Fourth

Amended cannot be used in the prosecution of the accused. Mapp v. Ohio, 367 U.S. 643

(1961). This rule was not meant as a remedy for violations by law enforcement, but as a

deterrent to discourage them from engaging in conduct that violates the Fourth

Amendment. United States v. Davis, ---U.S.---, 131 S.Ct. 2419, 2426, 180 L.Ed.2d 285

(2011); Bachick v. State, 30 S.W.3d 549, 552 (Tex. App.—Ft. Worth, 2000). In Texas,

the legislature codified this rule as Section 38.23 of the Code of Criminal Procedure. Tex.

Crim. Proc Code. Ann. § 38.23. The relevant portion of that section states:

(a) No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted into evidence against the accused on the trial of any criminal case.

(b) It is an exception to the provisions of Subsection (a) of this Article that the evidence was obtained by law enforcement officer acting in good faith reliance upon a warrant issued by a neutral magistrate based on probable cause.

Id.

In addition, the Texas Penal Code defines “law” to include the constitution, state

and federal statutes, written opinions of a court of record, municipal ordinances, orders of

a commissioner’s court, and rules adopted pursuant to statutes. Tex. Penal Code Ann. §

1.07(a)(30). When interpreting 38.23, the Texas Court of Criminal Appeals has construed

the statute according to the plain meaning and gives the terms their ordinary meaning

7 unless doing so would lead to absurd results. See Chavez v. State, 9 S.W.3d 817, 819

(Tex. Crim. App. 2000).

While not outright holding so, the implication of this court’s recent ruling in Weems

v. State is that under 38.23(a) evidence seized “in violation” of the law requires the

suppression of evidence even cases where the search or seizure was permitted at the time

it was conducted and only became a violation of the law after fact. See Weems v. State, --

-S.W.3d--- 2014 WL 2532299 (Tex. App—San Antonio, 2014). Appellee urges this

Honorable Court to reconsider this interpretation of 38.23(a) because the ordinary

meaning of “in violation” of any “law” means that the law as it existed when the evidence

was seized not after the fact, especially in cases where the state of law is clear at the time

of seizure. Any other reading leads to absurd results.

As noted above, section 38.23(a) requires suppression of evidence in violation of the

law. The Texas Penal Code definition of law, which includes appellant court decisions,

suggests that the legislature contemplated that evidence seized in violation of those

decisions would qualify as evidence that was seized “in violation” of the law under

38.23(a). This is supported by the fact that state appellate courts routinely decided case

involving the suppression of evidence under 38.23, including the interpretation the of that

statute. See Daugherty v. State, 931 S.W.2d 268, 270 (Tex. Crim. App. 1996) (discussing

the meaning of “obtain” under 38.23). Such decisions would not mean much if they were

not considered part of law referenced in 38.23(a).

In this case, the evidence was seized by Deputy Williams on November 3rd, 2009.

At that time, 724.012 had been in existence since 1995. Beeman v. State was decided in

8 2002 and at its blessing of 724.012(b) was still considered good authority in November

2009.1 See Beeman v. State, 86 S.W.3d 613, 615-16 (Tex. Crim. App. 2002). For

example, this Court relied on the Beeman rational in upholding a warrantless blood draw

made pursuant to 724.012(b)(3)(B) in its 2012 Aviles decision and only abandoned that

rational after the Supreme Court vacated Aviles nearly two years later. Aviles v. State,

385 S.W.3d 110, 115-16 (Tex. App--San Antonio, 2012), vacated by, Aviles v. Texas,

134 S.Ct. 902 (Jan. 13 2014); Weems, 2014 WL 2532299. In fact, Courts were still using

Beeman’s rational even after McNeely had been decided to justify upholding warrantless

blood draws made pursuant to 724.012(b). Reeder v. State, 2014 WL 60162 (Tex. App.—

Texarkana, Jan. 8, 2014), withdrawn and superseceded by, Reeder v. State, 428 S.W.3d

924 (Tex. App.—Texarkana, April 29, 2014); Douds v. State, No.14-12-00642-CR (Tex.

App-Houston [14th], October 15, 2013), withdrawn and superseceded by, Douds v. State,

--- S.W.3d--- 2014 WL 2619863 (Tex. App-Houston [14th], June 5, 2014); Smith v.

State, 2013 WL 5970400 (Tex. App.—Corpus Christi, 2013) (opinion withdrawn and

appeal resubmitted). Appellee notes that it does not cite the withdrawn opinions in

Douds, Smith, and Reeder for authority. It only cites them to demonstrate what those

courts believed the law to be at the time those opinions were handed down.2

1 In Beeman v. State, the Texas Supreme Court described 724.012 as follows: “[t]he implied consent law does just that-it implies consent to a search in certain instances. This is important when there is no search warrant, since it is another method of conducting a constitutionally valid search. On the other hand, if the State has a valid search warrant, it has no need to obtain the suspect’s consent.” “The implied consent law expands the State’s search capabilities by providing framework for drawing DWI suspects’ blood in the absence of a search warrant It gives officers an additional weapon in their investigative arsenal, enabling them to draw blood in certain limited circumstances even without a search warrant.” Beeman, 86 S.W.3d 613, 615-16 (Tex. Crim. App. 2002)

9 Like this Court in Weems, Beeman’s rational was only abandoned after Aviles was

vacated in January 2014. See Reeder, 428 S.W.3d at 92 (6th Court explicitly talks about

the Supreme Court vacating Aviles); See Douds, No.14-12-00642-CR; See Douds, 2014

WL 2619863; See Smith, 2013 WL 5970400; See Villarreal v. State, 2014 WL 1257150

(Tex. App.—Corpus Christi, 2013).3 In short, it is indisputable that the state of law on

November 3, 2009 was that warrantless blood draws made pursuant to 724.012(b)(3)(B)

were permissible and was not seized in violation of the law as it was understood on that

day. The decision in Aviles and initial decisions in Douds, Smith, and Reeder made it

clear that state appellate courts thought the same thing up until the Supreme Court

vacated Aviles in January.

Such a reading of 38.23 does not violate the rule of statutory construction that

ordinarily prohibits courts from implying an exception to a statute that contains an

express exception. See Daugherty, 931 S.W.3d at 270. Appellee is not seeking to graft an

exception on 38.23 nor is it seeking a return to the Linkletter retroactivity test abandoned

2 The original decisions in Douds, Reeder, and Smith have been withdrawn from westlaw. The 14th and 13th Courts of Appeals still have the withdrawn opinions in Douds and Smith posted on its website as of July 22, 2014. Copies has been provided as part of this brief. The withdrawn opinion in Reeder is no longer on the website for the 6th Court of Appeals. Appellee obtained its copy from westlaw prior to it being pulled from the website. It has attached a copy of those opinions for reference. 3 Aviles v. Texas was vacated on January 13th, 2014. Aviles v. Texas, 134 S.Ct. 902 (Jan. 13, 2014) The original Reeder opinion was decided on January 8th and the second opinion handed down on April 29, 2014. Reeder, 2014 WL 60162; Reeder, 428 S.W.3d at 924. The original Douds opinion was handed down on October 15, 2014 and the second opinion was decided on June 5, 2014. Douds, No.14-12-00642-CR; Douds, 2014 WL 2619863. Finally, Smith was decided on October 31, 2013 and Villarreal was handed down on January 23, 2014.Smitih, 2013 WL 5970400; Villarreal, 2014 WL 1257150. Appellee also notes that Villarreal, Weems, and Reeder mention Aviles being vacated by name. Villarreal, 2014 WL 1257150; Weems, 2014 WL 2532299; Reeder, 428 S.W.3d at 929.

10 in Griffith v. Kentucky. Griffith v. Kentucky, 479 U.S. 314, 328 (1987).4 It is seeking a

plain reading of “in violation” of the law. It is seeking to do the same thing the Court of

Criminal Appeals did in Daugherty v. State, when it defended the inclusion of the

attenuation doctrine. See Daugherty, 931 S.W.3d at 270. In that case the court stated that:

The ordinary meaning of “obtained” may accommodate the attenuation doctrine inasmuch as, depending on how removed the actual attainment of the evidence is from the illegality, the ordinary person would not consider that evidence to have been obtained by that illegality…If the police had not illegal stopped the defendant’s car, then not B, if not B, then not C, if not C, then not D, if not D, then not…Z, if not Z, then not the evidence—there is a point beyond which the ordinary understanding of “obtained” just does not apply.

Id. Years later, the Court of Criminal Appeals used the same type of rational in holding

that federal independent source doctrine was applicable under 38.23. Wehrenberg v.

State, 416 S.W.3d 458, 469-70 (Tex. Crim. App. 2013). Likewise, an ordinary person

would not consider evidence to be seized “in violation of” law to mean the law as it exists

years after the evidence was seized. An ordinary person would interpret it to mean the

law as the state of the law at the time evidence was seized. This is particularly true when,

the seized is based on a statute that had been in existence for fifteen years and had been

4 Appellee also argues that the Linkletter doctrine abandoned in Griffith is a creature of case law meant to deal with the retroactivity of court decisions and while the issue in this case is one of statutory construction and, thus, subject to the basic rules of statutory construction that are not ordinarily applicable to court decisions. See Griffith v. Kentucky, 479 U.S. 314 (1987). Additionally, the Supreme Court’s solution to the absurd results that can arise from absolute retroactivity (and which are described in in great detail by appellee in section B1 of its brief) was to extend the good faith exception to binding appellate court decisions. See Davis v. United States, 131 S.Ct. 2419, 2424-34 (2011). The Texas Court of Criminal Appeals’s binding decision in Daugherty v. State appears to cuts off the extension of the good faith doctrine created in Davis. See Daugherty, 931 S.W.3d at 270 Appellee does not concede that Daughtery’s rational it is correct as pertains to 38.23(b) (which is what this Court relied on in Weems when it refused to follow Illinois v. Krull), but understands this Honorable Court is bound by it. See Weems, 2014 WL 2532299. Consequently, the inability of law enforcement to avail themselves of the Davis exception would lead to the absurd result detailed extensively in part B1 of this brief, something the legislature could not have reasonable intended when it pass that statute nor is consistent with the plain meaning of the text in section 38.23(a).

11 held as a sufficient basis for the seizure by state appellate courts both before and after the

seizure took place.

In addition to being consistent with the ordinary meaning of “in violation of” the

law, appellee’s reading of 38.23(a) prevents the absurd results created by the Court’s

implied reading of 38.23(a). This case, Deputy Williams had a statute that had been in

effect for nearly fifteen years and that appeared to have the blessing of state appellate

courts. There was no reason for him to believe there was a problem with the law until the

Supreme Court vacated Aviles nearly four years after he took appellant’s blood. In fact,

the Beeman, Aviles, and the original decisions in Reeder, Smith and Douds reinforce that

reliance. No reasonable officer should or could have known that they were

unconstitutional prior to January 13, 2014 (the day Aviles was vacated). In fact, to think

otherwise would have gone against the controlling authority in this state.

Thus law enforcement is faced with an impossible situation of 38.23(a) requiring

that their search and seizure be done in compliance with the law, including opinions of

the various appellate courts, but still have to sit and as watch their hard-earned evidence

suppressed despite their reliance on those decisions. If appellate courts bless a statute or a

particular type of search or seizure only to reverse course years down the line, then law

enforcement is punished for having done what they were previously told they could do.

This is not a situation where the state of the law was unclear or unknown when the

evidence was seized. This is a situation where the law in Texas was very clear.

This problem is especially glaring in Weems and other post McNeely decisions. In

addition to being told that their evidence was seized in violation of the law, law

12 enforcement is simultaneously being criticized in exigent circumstances analysis for not

attempting to seek a warrant when the legislature and courts had effectively told them for

more than a decade that they did not need to so long as they complied with 724.012. See

Weems, 2014 WL 2532299; See Douds, 2014 WL 2619863; See Sutherland v. State,---

S.W.3d--- 2014 WL 1370118 (Tex. App.—Amarillo, 2014). This is a catch-22 for law

enforcement as they watch evidence get suppressed for engaging in conduct they had

previously been told was legal. It’s an absurd result and no ordinary person would think

this is what the legislature had in mind when it passed 38.23(a). Cf Daugherty, 931

S.W.2d at 270. Consequently, it does nothing to further the basic purpose of 38.23 or the

exclusionary rule. See Bachick, 30 S.W.3d at 552.

As the United States Supreme Court noted in Davis v. United States:

“It is one thing for the criminal to go free because the constable has blundered. It is quite another to set a criminal free because the constable has scrupulously adhered to governing law. Excluding evidence in such cases deters no police misconduct and imposes substantial social costs.

Davis, 131 S.Ct. at 2434 (holding that the federal good faith doctrine extends to binding

appellate court decisions) (citations omitted).

2. In addition to not violating 38.23(a), Deputy Williams Seizure of Appellant’s blood does not violate federal exclusionary rule to the Fourth Amendment to the United States Constitution because it was seized in a good faith reliance on section 724.012(b) of the Texas Transportation Code.

Like 38.23(a), the primary purpose of the federal exclusionary rule is not to punish,

but to deter violations of the Fourth Amendment by law enforcement. Davis, 131 S.Ct. at

2426. Since the rules formation, the Supreme Court has carved out several exceptions,

13 including the good faith exception. United States v. Leon, 468 U.S. 897 923-24 (1984). In

Leon, the Supreme Court allowed the use of evidence seized in violation of the Fourth

Amendment because the officer had been acting in good faith reliance upon a warrant

issued by a magistrate. Id. That exception extended was extended to include a good faith

reliance on statute that authorized a warrantless search, so long as the legislature did not

“wholly abandon its responsibilities to enact constitutional laws” when enacting the law

and that the laws the provisions were not such that a reasonable officer should have

known that they were unconstitutional. Illinois v. Krull, 480 U.S. 340, 342, 355 (1987).

Appellee concedes that even if the Court adopts appellee’s desired interpretation of

38.23(a), the Supreme Court’s decision in Griffith v. Kentucky still means that the federal

exclusionary rule is still retroactive. Griffith, 479 U.S. at 328. However Deputy

Williams’s actions fall under the good faith exception to the federal exclusionary rule

outlined in Krull.

As noted in part B1, Beeman, Aviles, and the initial decisions in, Smith, Douds and

Reeder, means that it would have not been reasonable for Williams to believe that the

provisions of 724.012(b)(3)(B) were unconstitutional as the courts in each of those cases

also believed a warrantless seizure pursuant to 724.012(b) was valid. See Krull, 480 U.S.

at 342, 355. Those decisions make it clear that, at the time they were handed down, those

courts thought the same thing. Additionally, given that multiple courts held that opinion

up until January 13, 2013when Aviles was vacated, the legislature could not “wholly

abandon its responsibilities to enact constitutional laws.” See Id. To hold otherwise

would suggest five different state appellate courts engaged in similar behavior. Therefore,

14 Deputy Williams engaged in a good faith reliance on a duly passed (and at the time, duly

upheld) statute when he seized appellant’s blood.

Furthermore, suppressing the evidence in this case under the Fourth Amendment

exclusionary rule (as opposed to 38.23(a)), would lead to the exact same absurd result

that would occurred if the evidence is suppressed under 38.23(a). Law enforcement

would be left in same the impossible position of having their hard work suppressed

despite relying on a statute that had been blessed by state appellant courts. It does nothing

to further the basic purpose of the exclusionary rule. See Davis, 131 S.Ct. at 2426.

Because Deputy Williams had every reason to believe that a warrantless blood draw

under 724.012(b)(3)(B) was constitutionality valid, suppressing the evidence would not

deter future violations of the Fourth Amendment All it would do is punish him for acting

in accordance with the law.

C. The trial properly denied appellant’s motion to suppress because appellant’s blood was seized pursuant to the exigent circumstances exception to the Fourth Amendment.

In McNeely v. Missouri the Supreme Court held that the dissipation of alcohol, by

itself, does not constitute exigent circumstances that would justify a warrantless blood

draw. McNeely v. Missouri, ---U.S.--- 133 S.Ct. 1552, 1563, 185 L.Ed.2d 698 (2013).

However, the Supreme Court also held that the Schmerber v. California was still good

law. McNeely, 133 S.Ct. at 1560. In Schmerber, the Supreme Court upheld law

enforcement’s warrantless seizure of the defendant’s blood under the exigent

circumstances doctrine. Schmerber v. California, 384 U.S. 757 (1966).

15 Under that doctrine, law enforcement is not required to obtain a search warrant if “the

exigencies of the situation make the need of law enforcement so compelling that a

warrantless search is objectively reasonable under the Fourth Amendment. McNeely 133

S.Ct. at 1559. (quoting Kentucky v. King, 563 U.S. ---, 131 S.Ct. 1849, 1856, 179

L.Ed.2d 865 (2011). Since the doctrine’s creation, courts have found a variety of

situations create such an exigency, including the imminent destruction of evidence.

McNeely, 133 S.Ct. at 1559. Whether exigent circumstances exist is to be determined on

a case by case basis. Id.

While the Supreme Court mentioned that advancements in technology have made it

easier to obtain a warrant, it also noted that “we by no means claim that

telecommunications innovations have, will, or should eliminate all delay from the

warrant application process.” Id. at 1562. The Court acknowledged that warrants take

time to be completed and reviewed by a magistrate. Id. It also conceded that telephonic

and electronic warrants may require officers to engage in time consuming formalities. Id.

Moreover, the existence of the technology did not guarantee that there was a magistrate

even available to sign a warrant. Id at 1562-63. In the second Douds v. State decision, the

Fourteenth Court of Appeals made a similar statement noting that “an officer might know

that no magistrate was available, or that taking a warrant would take so long that the

evidence would be lost.” Douds v. State, --- S.W.3d--- 2014 WL 2619863 (Tex. App.—

Houston [14th], 2014).

In the case at bar, Deputy Williams testified that he stopped the defendant at

approximately eight to eight-thirty in the evening and that the stop lasted approximately

16 an hour. He also stated that the normal business hours for judges in Guadalupe County

were from 8:00 am to 5:00 pm and that he was not aware of any judges that made

themselves available after 5:00 pm. In addition, before requesting a warrant at that he

would first have to go up the chain of command, which began with Sergeant Straus.

In other words, this is not a case like Weems or Sutherland v. State, where the officers

had an available on-call twenty-hour magistrate and an established procedure in place for

the specific purpose of obtaining a person’s blood. See Weems, 2014 WL 2532299; See

Sutherland, 2014 WL 1370118.5 Instead, Deputy Williams would have had to call his

Sergeant (assuming he was even available in the first place), wait for the sergeant to

complete his portion, hope his superiors are able to find someone, and then go through

the process of obtaining the warrant itself. However, given the fact that the arrest

occurred outside normal business hours and that local magistrates did not normally make

themselves available after hours, the reality is that find a magistrate was unlikely, let

alone finding on in a reasonable amount of time. Meanwhile, Deputy Williams would

have had to sit and wait while the alcohol in appellant’s continued to dissipate. At the

very least, it was not “outside the zone within which reasonable persons might disagree”

for the trial court to conclude that the process of obtaining a warrant under these

circumstances was going to very time consuming while also being unlikely to succeed.

5 In Villarreal v. State and the second Reeder v. State decision, the State did not argue that it had exigent circumstances. Villarreal, 2014 WL 12577150; Reeder v. State, 428 S.W.3d at 927. In the second Douds v. State case, the state relied on the existence of an accident for its exigent circumstances argue and the decision does not talk about whether Brazoria County or Pearland have an on-call magistrate or anything similar to what Bexar and Travis County have. Douds, 2014 WL 2619863.

17 See Cantu, 842 S.W.2d at 682. Consequently, it could have reasonable found the

sufficient exigent circumstances justified the seizure appellant’s blood warrant.

Appellee does not argue that the lack of a twenty-four on-call magistrate or a system

similar to Bexar and Travis Counties create a per se exigency. Different counties will

have different rules, procedures, or methods for dealing with this situation. In addition,

not all DWI arrests will occur during times when magistrates are known to be

unavailable. Appellee only argues in this particular the constitute exigent circumstances

and that the trial court, in viewing the evidence in light most favorable to the ruling,

could reasonably conclude that “exigencies of the situation makes the need of law

enforcement so compelling that a warrantless search is objectively reasonable under the

Fourth Amendment.” See McNeely, 133 S.Ct. at 1559.

Finally, while appellee concedes that Deputy Williams testified that the reason he did

not obtain a search warrant was because he did not believe he had to under 724.012,

appellant courts are to uphold the trial court’s ruling if it is correct under any theory of

law that is applicable to the case. Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App.

2005). That Williams himself did not cite exigent circumstances does not mean they did

not exist.

His reliance on 724.012(b)(3)(B) on scene, does not change the fact that when

viewing the evidence in light most favorable to the trial court’s ruling, that in order to

obtain a warrant, Deputy Williams would have had to go undergo a cumbersome, time-

consuming process without reasonable certainty that it would succeed. He could have

reasonably concluded that by the time either someone was found or his superiors gave up

18 trying that much of his evidence would have been destroyed. Therefore, regardless of his

reliance on 724.012(b)(3)(B), the trial court’s ruling should be upheld under exigent

circumstances exception to the Fourth Amendment.

D. The trial court’s ruling should be upheld because Deputy Williams seized the appellant’s blood in compliance of 724.012(b), which does not violate the 4th Amendment nor conflict with the Supreme Court’s decision in McNeely v. Missouri. Therefore, appellee believes Weems v. State was incorrectly decided and respectfully requests that this Honorable Court revisit its holding in that case.

As noted above, the United States Supreme Court in Missouri v. McNeely held that

the natural dissipation of alcohol from the blood did not create a per se or categorical

exigent circumstance that would justify not obtaining a search warrant. McNeely, 133

S.Ct.at 1563. In doing so, they also held the natural dissipation of alcohol may support of

find of exigent circumstances, but that whether it does must be determined by the totality

of the circumstances. Id.

Section 724.011 of the Texas Transportation Code states

If a person is arrested for an offense arising out of acts alleged to have been committed while the person was operating a motor vehicle in a public place or watercraft, while intoxicated…, the person is deemed to have consented, subject to this chapter, to submit to the taking of one or more specimens of the person’s breath or blood for analysis to determine the alcohol concentration or the presence in the person’s body of a controlled substance, drug, dangerous drug, or other substances.

Tex. Transp. Code Ann. § 724.011. Section 724.012 lays a variety of circumstances

where law enforcement is required to take a specimen of breath or blood. Tex. Transp.

Code Ann. § 724.012(b). Those circumstances include:

(1) The person was an operator of a motor vehicle or a watercraft involved in an accident that the officer reasonably believes occurred

19 as a result of the offense and, at the time of the arrest, the officer reasonably believes that as a direct result of the accident: (A) an individual had died or will die; (B) an individual other than the person has suffered serious bodily injury; (C) an individual other than the person has suffered bodily injury and been transported to a hospital or other medical facility for medical treatment

(2) the offense for which the officer arrests the person is an offense under Section 49.045, Penal Code, or

(3) at the time of the arrest, the officer possesses or received reliable information from a credible source that the person (A) has been previously convicted of or placed on community supervision for an offense under 49.045, 49.07, or 49.08, Penal Code, or an offense under the laws of another state containing elements substantially similar to the elements of an offense under those sections; or (B) on two or more occasions, has been previously convicted for an offense under Section 49.04, 49.06, 49.06, or 49.065, Penal Code, or an offense under the laws of another state containing elements of the offense under those sections.

Id. Finally, in 2002, the Court of Criminal Appeals, in Beeman v. State noted:

The implied consent law does just that-it implies consent to a search in certain instances. This is important when there is no search warrant, since it is another method of conducting a constitutionally valid search. On the other hand, if the State has a valid search warrant, it has no need to obtain the suspect’s consent.

The implied consent law expands the State’s search capabilities by providing framework for drawing DWI suspects’ blood in the absence of a search warrant It gives officers an additional weapon in their investigative arsenal, enabling them to draw blood in certain limited circumstances even without a search warrant.

Beeman, 86 S.W.3d at 615-16.

As discussed in detail in Part B, this Court and several other Court’s initially relied

on this rational to uphold a warrantless blood draw made pursuant to 724.012(b), only to

abandon it once the Supreme Court vacated Aviles in Aviles v. Texas. With the exception

20 of Douds v. State, the subsequent decisions makes it clear that it was a significant, if not

the primary, basis for the change is the Supreme Court vacating Aviles v. State. Weems,

2014 WL 2532299; Reeder, 428 S.W.3d at 929; Cf Sutherland, 2014 1370118 (the court

in Sutherland did not originally adopt Beeman’s rational, but does state that “by vacating

and remanding Aviles, it would seem the United States Supreme Court has rejected any

position that would treat 724.012(b)(3)(B) as an exception to the Fourth Amendment…”).

Appellee believes that both this and the other Court’s read too much into the Supreme

Court’s vacation of Aviles.

Specifically, Aviles was decided approximately a year before McNeely, and

consequently does not mention the case at all. See Aviles, 385 S.W. 3d 100. Therefore, it

is no surprise that it was sent back for reconsideration. However, appellee does not

believe that act is the equivalent of signal as to the specific intent on how or whether

McNeely would affect 724.012(b). McNeely was a clarification of the exigent

circumstances doctrine and not a ruling on implied consent statutes. The Supreme Court

could have simply kept the case and explicitly ruled on 724.012(b) had it desired to do so.

In discussing that, the Supreme Court described implied consent laws in the following

manner:

[a]s an initial matter, states have a broad range of legal tools to enforce their drunk-driving laws and to secure BAC evidence without undertaking warrantless nonconsensual blood draws. For example, all 50 States have adopted implied consent laws that require motorists, as a condition of operating a motor vehicle within the state, to consent to BAC testing if they are arrested or otherwise detained on suspicion of a drunk-driving offense…Such laws impose significant consequences when a motorist withdraws consent, typically the motorist’s driver’s license is immediately

21 suspended or revoked, and most States allow the motorist’s refusal to take a BAC test as evidence against him in a subsequent prosecution.

McNeely, 133 S.Ct. at 1556.

While the issue of implied consent was not before them, the above language suggests

that it is far from a fiat acompli that a warrantless draw made pursuant to an implied

consent statute would run afoul of McNeely. At the very least, its decision in South

Dakota v. Neville suggests that the Supreme Court is not uncomfortable with the concept

of implying consent via statute or with the fact that these statutes effectively punish

motorist for asserting their Fourth Amendment rights. See South Dakota v. Neville, 459

U.S. 553, 558-64 (1983) (upholding an implied consents statute’s use of an adverse

inference against a person for refusing to submit to a blood alcohol test). In short,

appellee believes that it is not obvious that the Supreme Court’s vacating of Aviles

indicates how it would rule on a draw pursuant to 724.012(b), and that this Honorable

Court stretches that action further that it should in holding that McNeely meant that

Beeman’s rational was no longer valid. Weems, 2014 WL 2532299.

Finally, appellee also notes that in Villarreal v. State, which is cited favorably in

Weems, the Corpus Christi Court of Appeals, stated:

“There is a distinction between a consensual blood draw and an involuntary, mandatory blood draw. The implied consent law is premised on consent Beeman 86 S.W.3d at 615. The mandatory blood draw is premised on a refusal consent. See Tex. Transp. Code Ann. § 724.012(b)(3)(B).

Villarreal, 2014 WL 1257150; See Weems, 2014 WL 2532299. The implied consent

statute, which the mandatory draw is a part of, is invoked when a driver operates a motor

vehicle on a Texas road while intoxicated. See Tex Transp. Code Ann. § 724.011.

22 Consent is implied by that very act. Villarreal’s rational and citations to

724.012(b)(3)(B)’s requirement that a person refuse before a draw become mandatory

suggests that the removal of that requirement, which makes the law more restrictive,

would survive under the consent exception as it would then be premised on the implied

consent (i.e. the consent exception) of section 724.012(a). Moreover, the statute, based on

that same implied consent, also allows the state to punish the defendant through the use

of that refusal at trial and license suspension for refusing to permit to a search of his or

her blood. Appellee does not see a meaningful difference between permitting the search

under implied consent and permitting the state to punish for refusing that search,

something which the Supreme Court permitted under Neville. See Neville, 459 U.S. at

558-64. Consequently, between this and the Supreme Court’s description of implied

consent statutes, McNeely does not affect the constitionality of Texas’s statute nor blood

draws taken pursuant to it.

In sum, appellee believes that Supreme Court’s vacating of Aviles means only what it

purports to say: that the Supreme Court wanted this Court to evaluate the draw in light of

McNeely and that it was not a signal meant to suggest a particular result as suggested in

Weems. See Weems, 2014 WL 2532299. Therefore, appellee believes that Weems was

incorrectly decided. Appellee respectfully requests this Honorable Court reconsider its

holding in that case, and for the reasons outlined above, believes that Beeman’s

description of 724.012(b) remains valid.

23 CONCLUSION AND PRAYER

WHEREFORE, appellee respectfully prays that this court uphold the trial court’s

denial of appellant’s motion to suppress.

__ Christopher M. Eaton Assistant County Attorney Guadalupe County, Texas State Bar No. 24048238 211 W. Court St., 3rd Floor Seguin, Texas 78155 Phone: (830) 303-6130 Fax: (830) 379-9491 Attorney for Appellee

CERTIFICATE OF SERVICE This is to certify that a true and correct copy of this document was served by fax on Appellant’s attorney Susan School at 830-620-5657 on the 30st day of July, 2014.

Chris Eaton

24 25