ACCEPTED
04-13-00338-CR & 04-13-00339-CR
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
1/9/2015 5:55:09 PM
KEITH HOTTLE
CLERK
CAUSE NOS. 04-13-00339-CR
IN THE FOURTH COURT OF APPEALS OF TEXAS
FILED IN
4th COURT OF APPEALS
SAN ANTONIO, TEXAS
__________________________________________________________________
1/9/2015 5:55:09 PM
KEITH E. HOTTLE
APPEAL OF A JUDGMENT IN TRIAL CAUSE NOS. 11-CRS-272 Clerk
FROM THE 229TH DISTRICT COURT OF STARR COUNTY, TEXAS
PRESIDING JUDGE HON. ANA LISA GARZA
__________________________________________________________________
ELIAS ESEQUIEL VASQUEZ, Appellant
VS.
THE STATE OF TEXAS, Appellee
__________________________________________________________________
APPELLANT’S MOTION FOR REHEARING
_________________________________________________________________
Respectfully submitted,
Victoria Guerra
320 w. Pecan Blvd.
McAllen, Texas 78501
(956) 618-2609
(956) 618-2553 (fax)
State Bar Number: 08578900
Appellant’s Attorney
MAY IT PLEASE THE COURT:
COMES NOW Elias Esequiel Vasquez, appellant in the above cause, and
files this motion for rehearing and would show this Court the following:
There exists a fundamental error in this Court’s opinion that skews this
Court’s analysis and result. Specifically, this Court’s opinion was based not on the
purported lack of standing of Mr. Vasquez to complain of a violation of his
expectation of privacy when the police stole, in violation of the Fourth Amendment
to the United States Constitution, the EDR from the GMC Canyon which Mr.
Vasquez was driving.
Utilizing McDuff v. State, 939 S.W.2d 607, 616 (Tex. Crim. App. 1997), this
Court held that Mr. Vasquez voluntarily discarded, left behind, or otherwise
relinquished his interest in property so that he could no longer retain a reasonable
expectation of privacy with regard to it at the time of the search. No evidence
exists to support this theory that appeared for the first time in the State’s brief and
was not raised at the trial court by the State.
Abandonment of property occurs only “if the defendant intended to abandon
the property and his decision to abandon it was not due to police misconduct.”
McDuff, 939 S.W.2d at 616.
In Miller v. State, 335 S.W.3d 847 (Tex. App.—Austin 2011, no pet.) the
court drew a distinction between voluntary and involuntary abandonment. In that
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case, the defendant, a police officer accidentally left a personal thumb drive which
contained child pornography and police activity reports in a patrol-room computer.
The court noted in footnote 4 that abandonment of property occurs only if the
defendant intended to abandon the property and his decision to abandon it was not
due to police misconduct (citing McDuff, 939 S.W.2d at 616) and it was
undisputed that the defendant’s abandonment of his thumb drive was unintentional.
See Miller, 335 S.W.3d at 858.
In Matthews v. State, 431 S.W.3d 596 (Tex. Crim. App. 2014), the Court of
Criminal Appeals held that the defendant had abandoned the borrowed vehicle
when he took off running after the police conducted a stop.
Even the United States Supreme Court has addressed the abandonment issue.
In Abel v. United States, 362 U.S. 217 (U.S. 1960), the defendant who was illegally
present in the United States, and who was under suspicion of espionage by the FBI,
was arrested in a hotel room. During the search of the hotel room, a forged birth
certificate was found in the trash can of the hotel room. The Court held that it was
lawful to seize items thrown away in the wastepaper basket where the defendant
had abandoned the articles contained in the basket by throwing them away.
None of those situations exist here which establish intentional abandonment
of the vehicle. Mr. Vasquez was lying on the ground at the time of the collision.
14R31, 78. Mr. Vasquez was nonresponsive at the collision scene. 14R32, 78.
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District Attorney investigator Trinidad Lopez called for medical assistance.
14R31.
Meanwhile, the State maintained control over the vehicle. On or about
January 3, 2012, a subpoena was issued to obtain the EDR from Rey’s Auto Parts.
CR291; 10R13–14. Although investigator Homer Flores initially obtained the
EDR from the wrong vehcile pursuant to a grand jury subpoena, he later obtained
the correct EDR without a warrant. 10R14. No evidence exists that Mr. Vasquez
intentionally abandoned said vehicle. Even if he wanted to obtain return of the
vehicle, he could not have because it was still in the State’s custody, as the State
needed it to obtain evidence as on January 3, 2012 and thereafter. Id.
It should also be strongly noted that the abandonment issue was not raised in
the trial court and Mr. Vasquez nor the trial court had no opportunity to address
said abandonment issue at said time.
As such, no evidence exists that Mr. Vasquez intentionally abandoned the
vehicle at issue.
WHEREFORE, Mr. Vasquez prays that this Court grant Mr. Vasquez’s
motion for rehearing; set aside it’s prior judgment or opinion, set aside the
judgment of the trial court, remand this case to the district court for further
proceedings, and grant such other relief to which Mr. Vasquez is justly entitled.
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Respectfully submitted,
Law Office of Victoria Guerra
320 W. Pecan Blvd.
McAllen, Texas 78501
(956) 618-2609
(956) 618-2553 (facsimile)
By: /s/ Victoria Guerra
Victoria Guerra
State Bar Number: 0857900
Appellate Attorney for Appellant
CERTIFICATE OF SERVICE
On this 9th day January, 2015, the undersigned delivered a copy of the
foregoing Appellant’s brief to Appellee’s Counsel jaolson_ccda@yahoo.com or his
facsimile: 210-858-6780.
/s/ Victoria Guerra
Victoria Guerra, Attorney for Appellant
CERTIFICATION OF COMPLIANCE
In compliance with TRAP 9.4(i)(3), the undersigned certifies that the
number of words in this brief, excluding those matters listed in Rule 9.4(i) (l), is
699.
/s/ Victoria Guerra
Victoria Guerra
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