PD-0235&0236
COURT OF CRIMINAL APPEALS
PD-0235&0236-15 AUSTIN, TEXAS
Transmitted 2/27/2015 5:41:45 PM
Accepted 3/2/2015 11:48:22 AM
ABEL ACOSTA
NO. PD-___________ AND PD-____________ CLERK
IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF TEXAS
ELIAS ESEQUIEL VASQUEZ, Appellant
vs.
THE STATE OF TEXAS, Appellee
APPELLANT VASQUEZ’S PETITION FOR DISCRETIONARY REVIEW
OF THE JUDGMENT AND OPINION IN
CAUSE NOS. 04-13-00338-CR AND 04-13-00339-CR
Respectfully submitted by
Appellant's attorney,
VICTORIA GUERRA
Texas Bar No. 08578900
March 2, 2015 320 W. Pecan Blvd.
McAllen, Texas 78501
(956) 618-2609
(956) 618-2553 Fax
ORAL ARGUMENT WAIVED
UNLESS REQUESTED BY COURT
IDENTITY OF PARTIES AND COUNSEL
Elias Esequiel Vasquez (hereinafter “Appellant” or “Mr. Vasquez”)
certifies that below is a complete list of all parties to the trial court’s
judgment and their trial counsel’s names, addresses and telephone
number.
1. Mr. Vasquez, resides in the I.D.T.D.C.J., Ney Unit, 114 Private Road
4303, Hondo, TX 78861-3812. His TDCJ number is: #01855231 .
2. Mr. Vasquez’s trial attorney was Juan Eduardo Garcia, whose office
address is 102 Texas Ave.; phone number: (956) 487-3739.
Mr. Flores’ appellate counsel is the undersigned, Victoria Guerra, whose
address is 3219 N. McColl Rd., McAllen, TX 78501; phone number: (956)
618-2609; facsimile: (956) 618-2553; email: vguerralaw@gmail.com .
3. Appellee is the State of Texas.
4. Appellee is represented by the Starr County Criminal District Attorney
Omar Escobar and ADA Marty Garcia Vela. Their address is: 3rd Floor,
Suite 417, Starr County Courthouse, Rio Grande City, Texas 78582. On
appeal, Appellee is represented by John A. Olson. His contact information
is as follows: 20634 Creek River, San Antonio, TX 78259; 210-307-0336
(phone).
5. This case was heard by the Trial Court, Judge Ana Lisa Garza, and by a
panel of three judges on the Thirteenth Court of Appeals who affirmed the
judgment of the Trial Court.
/s/ Victoria Guerra
Victoria Guerra
ii
TABLE OF CONTENTS
TABLE OF CONTENTS………………………………………………………..iii
LIST OF AUTHORITIES……………….……………………………………...iv
STATEMENT REGARDING ORAL ARGUMENT…………….……………1
STATEMENT OF THE CASE……………………….…………………………2
STATEMENT OF PROCEDURAL HISTORY……………………………….2
GROUNDS FOR REVIEW……………………………………………………..3
ARGUMENT AND AUTHORITIES…………………………………………..4
CONCLUSION AND PRAYER..……………………………………………....7
CERTIFICATE OF SERVICE…………………………………………………8
APPENDIX……………………………………………………………………….
iii
INDEX OF AUTHORITIES
Cases
Abel v. United States, 362 U.S. 217 (U.S. 1960) ......................................... 5
McDuff v. State, 939 S.W.2d 607 (Tex. Crim. App. 1997) ........................... 4
Miller v. State, 335 S.W.3d 847 (Tex. App.—Austin 2011, no pet.) ............. 5
Smith v. State, 286, S.W.3d 333 (Tex. Crim. App. 2009) ............................ 4
Texas Rules of Appellate Procedure
9.4(i) (l) ....................................................................................................... 9
9.4(i)(3) ....................................................................................................... 9
iv
NO. PD-______ AND PD-________
IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF TEXAS
ELIAS ESEQUIEL VASQUEZ, Appellant
vs.
THE STATE OF TEXAS, Appellee
_______________________________________________________
APPELLANT VASQUEZ’S PETITION FOR DISCRETIONARY REVIEW
TO THE HONORABLE COURT OF CRIMINAL APPEALS:
COMES NOW ELIAS, Appellant in the above styled cause, and
respectfully urges this Court to grant discretionary review of the above
cause.
STATEMENT REGARDING ORAL ARGUMENT
Appellant waives oral argument, unless this Court deems that oral
argument is necessary.
1
STATEMENT OF THE CASE
Appellant was indicted on or about June 23, 2011 in a single count
indictment, alleging that Defendant, on or about the 27th day of March,
2011, and before the presentment of this indictment, in Starr County,
Texas, did then and there operate a motor vehicle in a public place while
intoxicated by reason of the introduction of a combination of alcohol and
marijuana into the body, and did by reason of such intoxication cause the
death of another, namely, Guillermo Olivares, III, by accident or mistake,
to-wit: by driving his motor vehicle into the motor vehicle of the said injured
party. C14.1
STATEMENT OF PROCEDURAL HISTORY
On August 27, 2012, Mr. Vasquez plead guilty to the indictment.
5R20. On November 27, 2012, Mr. Vasquez sought to have his plea of
guilty set aside. 6R4; C91, 104, 112. The Trial Court granted Mr. Vasquez’s
motion to set aside his plea. 8R5, C186. Jury selection for Mr. Vasquez’s
trial began on April 29, 2013. 12R41. Mr. Vasquez plead guilty before the
jury on April 30, 2013. The sentencing trial before the jury began on May 3,
1
The companion case, appellate cause number 04-13-00339-CR arising from
cause number 11-CRS-272 pertains to the charge of intoxication assault. The Trial
Court consolidated these two cases. C449. Both cases arose out of the same incident
and occurrence. The records are identical for all intents and purposes. However, the
documents are in different order. Mr. Vasquez sees no reason why the two cases
cannot be handled together.
2
2013. 14R18. The jury assessed a sentence of thirteen years confinement
in the Texas Department of Criminal Justice and a fine of $ 10,000.
14R394, 399; C595. Mr. Vasquez filed a motion for new trial on May 29,
2013. C598. It appears that no hearing on this motion for new trial
occurred. C10. Mr. Vasquez timely perfected his appeal. (Supplemental
Clerk’s Record).
GROUNDS FOR REVIEW
ISSUE NO. 1: WHETHER THE FOURTH COURT OF
APPEALS ERRED IN HOLDING THAT MR. VASQUEZ HAD
ABANDONED THE VEHICLE HE WAS DRIVING, THEREBY
DIVESTING HIM OF FOURTH AMENDMENT PROTECTION
3
ARGUMENT
ISSUE NO. 1: WHETHER THE FOURTH COURT OF
APPEALS ERRED IN HOLDING THAT MR. VASQUEZ HAD
ABANDONED THE VEHICLE HE WAS DRIVING, THEREBY
DIVESTING HIM OF FOURTH AMENDMENT PROTECTION
Appellant seeks review of the Court of Appeals’ reliance and
interpretation of McDuff v. State, 939 S.W.2d 607, 616 (Tex. Crim. App.
1997), which is misplaced.
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.
4
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 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
5
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. 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.
6
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. The judgment of the trial court and opinion
of the appellate court should be vacated, reversed, and this case should be
remanded to the trial court for a new trial.
CONCLUSION AND PRAYER
WHEREFORE, Mr. Vasquez prays that this Court vacate and reverse
the appellate court’s and trial court’s decisions and remand this case to the
trial court for a new trial. Mr. Vasquez also prays that this Court grant such
other relief to which he is justly entitled.
Respectfully submitted,
Law Office of Victoria Guerra
3219 N. McColl Rd.
McAllen, Texas 78501
(956) 618-2609
(956) 618-2553 (facsimile)
By: /s/ Victoria Guerra
Victoria Guerra
State Bar Number: 0857900
Appellate Attorney for Appellant
7
CERTIFICATE OF SERVICE
On this 27th day February, 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 and to the State
Prosecuting Attorney at its fax: (512) 463-5724.
/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 1092.
/s/ Victoria Guerra
Victoria Guerra
8
Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-13-00338-CR
No. 04-13-00339-CR
Elias Esequiel VASQUEZ,
Appellant
v.
The
The STATE of Texas,
Appellee
From the 229th Judicial District Court, Starr County, Texas
Trial Court Nos. 11-CRS-270 & 11-CRS-272
Honorable Ana Lisa Garza, Judge Presiding
Opinion by: Sandee Bryan Marion, Justice
Sitting: Karen Angelini, Justice
Sandee Bryan Marion, Justice
Marialyn Barnard, Justice
Delivered and Filed: December 10, 2014
AFFIRMED
At around 11:00 p.m., on February 27, 2011, appellant was involved in an automobile
accident that resulted in the death of Guillermo Olivares III and bodily injury to Yadira Pena.
Appellant pled guilty to intoxication manslaughter in the death of Olivares and guilty to
intoxication assault for the injuries sustained by Pena. A jury assessed punishment. In both
appeals, appellant asserts the trial court erred by denying his motion to suppress. We affirm the
trial court’s judgment in both cases.
04-13-00338-CR & 04-13-00339-CR
BACKGROUND
At the time of the accident, appellant was driving a maroon 2005 GMC Canyon owned by
his mother, who had consented to his using the vehicle. After the accident, the vehicle was towed
to a salvage yard. The complainants’ vehicle, a 2008 Silverado, also was towed to the same salvage
yard. Approximately eleven months after the accident, an investigator with the Starr County
District Attorney’s Office went to the salvage yard to obtain the electronic data recorder (“the
EDR”) from one of the vehicles. Joel Diaz, who managed the salvage yard, testified he was
approached by the investigator who gave him a grand jury subpoena duces tecum for the Silverado.
Diaz gave the investigator the EDR from the Silverado. About one week later, an investigator
from the District Attorney’s Office returned to the salvage yard, and told Diaz he had taken the
EDR from the wrong vehicle, and he needed the EDR from the GMC Canyon. Diaz said the
investigator had no paperwork with him; nevertheless, Diaz gave the investigator the EDR from
the GMC Canyon. Appellant later filed a motion to suppress the EDR on the grounds it was
illegally obtained. The trial court denied his motion, and these appeals ensued.
STANDING
In these appeals, we must decide whether appellant had standing to challenge the State’s
obtaining the EDR from the GMC Canyon. “The rights protected by the Fourth Amendment to
the U.S. Constitution and Article I, Section 9, of the Texas Constitution are personal.” Matthews
v. State, 431 S.W.3d 596, 606 (Tex. Crim. App. 2014). “As such, [a defendant] must show that
the search violated his, rather than a third party’s, legitimate expectation of privacy.” Id. (emphasis
in original). A defendant seeking to suppress evidence obtained in violation of the Fourth
Amendment must, therefore, show (1) that he exhibited an actual “subjective expectation of
privacy in the place invaded,” and (2) that “society is prepared to recognize that expectation of
privacy as objectively reasonable.” State v. Betts, 397 S.W.3d 198, 203 (Tex. Crim. App. 2013).
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04-13-00338-CR & 04-13-00339-CR
Only after a defendant has established his standing to complain may a court consider whether he
has suffered a substantive Fourth Amendment violation. Kothe v. State, 152 S.W.3d 54, 59 (Tex.
Crim. App. 2004). Standing is reviewed de novo because it is a question of law. Id. In a motion
to suppress, the movant has the burden to establish standing. State v. Klima, 934 S.W.2d 109, 110
(Tex. Crim. App. 1996).
A person has an expectation of privacy in a vehicle that he does not own if he has gained
possession of the car from the owner with the owner’s consent or from someone authorized to give
permission to drive it. See Matthews, 431 S.W.3d at 607-08. In this case, appellant’s mother
testified she gave appellant permission to drive her GMC Canyon. Therefore, at the time of the
accident, appellant had both a subjective and reasonable expectation of privacy in his mother’s
GMC Canyon. See id. at 610.
However, a party lacks standing to object to the reasonableness of a search of abandoned
property. McDuff v. State, 939 S.W.2d 607, 616 (Tex. Crim. App. 1997). Abandonment of
property occurs when the defendant intends to abandon the property and his decision to abandon
it is not due to police misconduct. Id. “When police take possession of abandoned property
independent of police misconduct[,] there is no seizure under the Fourth Amendment.” Id.
Abandonment is primarily a question of intent that can be inferred from the words and actions of
the parties and other circumstances surrounding the alleged abandonment. Id. The dispositive
issue is whether the defendant 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. Id.
Shortly after the accident, the GMC Canyon was towed to the salvage yard. Nothing in the
record indicates either appellant or his mother attempted to regain possession of the vehicle in the
almost eleven months following the February 27, 2011, accident. The investigator obtained the
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04-13-00338-CR & 04-13-00339-CR
GMC Canyon’s EDR from Diaz on January 3, 2012. Diaz testified he has a Texas Nonrepairable
Vehicle title to the GMC Canyon, and the State introduced a document showing the current owner
of the vehicle to be State Farm County Mutual. This document also stated: “Registration invalid.
. . . Nonrepairable Vehicle Title Issued. Tx Title Surrendered on 2011/05/13. . . . Salvaged on
2012/07/18. Evidence Surrendered: Tx Nonrepair Cert of Title . . . .” On this record, we conclude
appellant abandoned any reasonable expectation of privacy in his mother’s vehicle. Therefore, he
lost standing to challenge the State’s obtaining the EDR from the vehicle.
CONCLUSION
We conclude the trial court did not err in denying appellant’s motion to suppress.
Therefore, we overrule appellant’s issue in both appeals, and affirm the trial court’s judgments.
Sandee Bryan Marion, Justice
Do not publish
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