PD-1362-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 6/13/2016 8:26:41 AM
Accepted 6/13/2016 8:30:32 AM
Keri L. Miller ABEL ACOSTA
First Assistant County Attorney PAUL S. WATKINS CLERK
Eric L. Weborg Jr. Gonzales County Attorney
Assistant County Attorney 415 St. Louis Street
John Brumme Gonzales, Texas 78629-4029
Investigator
Phone (830) 672-6527 : Fax (830) 672-5868
Misty Miller
Email: countyattorney@co.gonzales.tx.us
Victim/Witness Coordinator
June 13, 2016
Mr. Abel Acosta
Clerk, Court of Criminal Appeals
Supreme Court Building
June 13, 2016
201 West 14th Street, Room 106
Austin, Texas 78701
Re: The State of Texas v. Jose Ruiz
PD-1362-15
COA Cause No. 13-13-00507-CR
Trial Court Case No. 34-13-B
Set for submission on Oral Argument June 15, 2016
Additional Citations
Dear Mr. Acosta,
Prior to oral argument the State submits the following additional citations for
the Court’s consideration in this cause:
Issue One:
Breithaupt v. Abraham, 352 U.S. 432 (1957)(holding “the driver here was
unconscious when the blood was taken, but the absence of conscious consent,
without more, does not necessarily render the taking a violation of a constitutional
right.” Reasoning in footnote number 2: “it might be a fair assumption that a
driver on the highways, in obedience to a policy of the State, would consent to
have a blood test made as part of a sensible and civilized system protecting himself
as well as other citizens… from the hazards of the road due to drunken driving”).
People v. Arredondo, No. S233582, 2016 Cal. LEXIS 3778 (Cal. June 8,
2016)(granting review on People v. Arredondo, 245 Cal. App. 4th 186 (Cal. Ct.
App. 2016), reviewing (along with other issues), whether law enforcement violated
the Fourth Amendment by taking a warrantless sample from a defendant while he
was unconscious or was the search and seizure valid because defendant was
“deemed to have given his consent” under California’s implied consent law).
People v. Ascencio, No. D066806, 2015 Cal. App. Unpub LEXIS 6270 (Cal.
Ct. App. August 31, 2015, no pet.)(not designated for publication)(the California
Rules of Appellate Procedure prohibit courts and parties from citing or relying on
opinions not certified for publication or ordered published, however, this case from
the Fourth Appellate District of California holds that because the defendant did not
withdraw his statutory implied consent at the scene and subsequently, due to his
unresponsiveness, was incapable of withdrawing his consent, his blood was drawn
pursuant to his consent. This holding is in direct conflict with the Sixth Appellate
District California Appellate Court in People v. Arredondo, 245 Cal. App. 4th 186
(Cal. Ct. App. 2016, rev. granted)).
Martini v. Commonwealth, No. 0392-15-4, 2016 Va. App. LEXIS 67 (Va.
Ct. App. March 8, 2016, no pet.)(not designated for publication)(holding that a
defendant who drives their vehicle on a highway in Virginia has given their
consent to a blood draw, and a driver’s incoherence or unconsciousness does not
constitute a refusal, because consent is continuing. (citing Goodman v.
Commonwealth, 37 Va. App. 374, 383 (Va. 2002))).
Texas Transportation Code § 724.061 (a person’s refusal of a request by an
officer to submit to the taking of a specimen of breath or blood, whether the refusal
was express or the result of an intentional failure to give a specimen, may be
introduced into evidence at the person’s trial).
Hardie v. State, 807 S.W.2d 319 (Tex. Crim. App. 1991)(holding that
“evidence of an accused invoking his or her right to counsel may indeed be
construed adversely to a defendant and may improperly be considered as inference
of guilt.” “Such an adverse use of evidence that a defendant invoked a right or
privilege which has been granted him, is constitutionally impermissible”).
Powell v. State, 660 S.W.2d 842 (Tex. App.—El Paso 1983, no pet.)(holding
that it was error to admit evidence that defendant would not voluntarily permit the
officers to inspect a package containing narcotics. “The invocation of
constitutional rights such as assistance of counsel, silence, or freedom from
unreasonable searches may not be relied upon as evidence of guilt. To permit the
use of such evidence for purposes of incrimination would erode the protections
guaranteed by both state and federal constitutions”).
Winn v. State, 871 S.W.2d 756 (Tex. App. Corpus Christi 1993, no
pet.)(finding that defendant’s trial counsel was ineffective for failing to object to
the officer’s testimony that defendant refused to consent to a search of his
residence because the use of such evidence would erode the protections guaranteed
by the federal and state constitutions to be free of unreasonable searches and
seizures).
Reeves v. State, 969 S.W.2d 471 (Tex. App.—Waco 1998, pet.
ref’d)(allowing evidence of the defendant’s refusal to consent to a warrantless
search of his home was error because it would impose a penalty for exercising a
constitutional right).
Issue Two:
Cole v. State, No. PD-0077-15, 2016 Tex. Crim. App. LEXIS 84 (Tex.
Crim. App. May 25, 2016) (in addition to the natural dissipation of alcohol,
circumstances relevant to an exigency analysis include: (1) the procedures in place
for obtaining a warrant; (2) the availability of a magistrate judge; and (3) the
practical problems of obtaining a warrant within a timeframe that still preserves the
opportunity to obtain reliable evidence).
Weems v. State, No. PD-0635-14, 2016 Tex. Crim. App. LEXIS 85 (Tex.
Crim. App. May 25, 2016) (in addition to the natural dissipation of alcohol,
circumstances relevant to an exigency analysis include: (1) the procedures in place
for obtaining a warrant; (2) the availability of a magistrate judge; and (3) the
practical problems of obtaining a warrant within a timeframe that still preserves the
opportunity to obtain reliable evidence).
The State requests that the foregoing authorities be brought to the attention
of the Court. Thank you for your immediate assistance with this matter.
Respectfully submitted,
/s/ Keri L. Miller______________
Keri L. Miller
First Assistant County Attorney
Gonzales County, Texas
kmiller@co.gonzales.tx.us
State Bar No. 24051960
CC: Mark Symms
Attorney for Appellant