Marcus Donel Polley v. State

ACCEPTED
12-15-00041-CR
TWELFTH COURT OF APPEALS
TYLER, TEXAS
4/20/2015 8:43:29 PM
CATHY LUSK
CLERK

IN THE

TWELFTH COURT OF APPEALS
FILED IN
12th COURT OF APPEALS
OF TYLER, TEXAS TYLER, TEXAS
4/20/2015 8:43:29 PM
CATHY S. LUSK
Clerk
Case No. 12-15-00040-CR
Case No. 12-15-00041-CR

MARCUS DONEL POLLEY,

Appellant,

VS.

THE STATE OF TEXAS,

Appellee

BRIEF FOR APPELLANT

_Georgia B. Kimmey___
Georgia B. Kimmey
Attorney for Appellant
TX Bar No. 24049703
1 Columbia Ct.
Lufkin, TX 75901
936 676-3750

APPELLANT DOES NOT REQUEST ORAL ARGUMENTS
ATTORNEY FOR THE STATE AT JURY TRIAL AND APPEAL
PAIGE PATILLO-BROWN, Nacogdoches Asst. County Attorney
TX State Bar No. 24048716
Nacogdoches County Attorney’s Office
101 W. Main St., rm. 230
Nacogdoches, Texas 75961
936 560-7789
ATTORNEY FOR DEFENDANT AT JURY TRIAL
LEE WESTMORELAND
TX State Bar No. 24001113
416 Sunset Ave.
Nacogdoches, Texas 75961
936 250-0776
ATTORNEY FOR DEFENDANT ON APPEAL
GEORGIA BROWN KIMMEY
TX State Bar No. 24049703
1 Columbia Ct.
Lufkin, Texas 75901
936 676-3750

CERTIFICATE OF SERVICE

The undersigned attorney certifies that a true and correct copy of the foregoing Appellant
Brief for Marcus Donel Polley was delivered via email to Paige Patillo-Brown, Nacogdoches
Asst. County Attorney at ppatillo@nacogdoches.county.tx.us on April 20 2015.

__Georgia B. Kimmey______
Georgia B. Kimmey

2
 TABLE OF CONTENTS

Page No.

Authorities Cited . . . . . . . . . . . . . . . 5

Statement of the Case. . . . . . . . . . . . 6

Issues Presented . . . . . . . . . . . . . . . . 8

Statement of Facts . . . . . . . . . . . . . . 8

Summary of the Argument . . . . . . . 9

Argument:

I. APPELLANT SUFFERED FROM INEFFECTIVE
ASSISTANCE OF COUNSEL
a. Standard of Review – Strickland Two Prong Test 12

b. No Objection to Blood Search Warrant 13

1. Blood Search Warrant Necessary for Blood Draw
but Not Produced at Trial
2. Faxed Blood Search Warrant Does Not Comply with 16
CCP Art. 18.01
c. No Objection to State’s Claim Appellant had “Care, Custody 17
and Control” of Marijuana
1. Appellant’s Accident Left Him Confused and Unresponsive

2. No Explanation Offered by Defense as to Origin of
Marijuana 19
3
Prayer . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Certificate of Word Count . . . . . . . . . . 20

Appendices . . . . . . . . . . . . . . . . . . . . . .

A-1 TEX. CRIM. CODE PROC. Art. 18.01 21

A-2 TEX. TRANSP. CODE Chap. 724 26

A-3 TEX. HEALTH & SAFETY CODE § 481.121 31

4
 INDEX OF AUTHORITIES

Cases: Page No.

Aliff v. State, 627 S.W.2d 166 (Tex. Crim. App. 1982) . . . . . . . . . . . . . . . . . . . 13

Cooper v. State, 928 S.W.2d 482 (Tex. App. – Tyler, 2003, no pet.) . . . . . . . . .13

Douds v. State, No. 14012-00642, 14th Court of Appeals, 10/15/2013 . . . . . . . .14

Fienen v. State, 390 S.W.3d 328 (Tex. Crim. App. 2012) . . . . . . . . . . . . . . . . . 13

Hernandez v. State, 988 S.W.2d 770 (Tex. Crim. App. 1999) . . . . . . . . . . . . . . 12

Jackson v. State, 877 S.W.2d 768 (Tex. Crim. App. 1994) . . . . . . . . . . . . . . . . .20

McFarland v. State, 928 S.W.2d 482 (Tex. Crim. App. 1996) . . . . . . . . . . . . . . 12

Meekins v. State, 340 S.W.3d 454 (Tex. Crim. App. 2011) . . . . . . . . . . . . . . . . 13

Missouri v. McNeely, 133 S.Ct. 1552, 185 L.Ed. 2d 696 (2013) . . . . . . . . . . . . . 14

Schmerber v. California, 384 U.S. 757 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) 10, 13

State v. Baker, No. 12-12-00092, 12th Court of Appeals, 10/16/2013 . . . . . . . . . 14

State v. Mosely 348 S.W.3d 435 (Tex. App. – Austin, 2011, pet. ref’d) . . . . . . . .14

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 674 (1984) 12, 20

STATUTES

TEX. CRIM. CODE PROC. Art. 18.01. . . . . . . . . . . . . . . . . . . . . . . . . . . . 10,11,17

TEX. TRANSP. CODE Chap. 724 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13

TEX. HEALTH & SAFETY CODE § 481.121(a) . . . . . . . . . . . . . . . . . . . . . . . . 19

5
 STATEMENT OF THE CASE

This appeal is brought by Appellant, Marcus Donel Polley, for the decision

rendered at his jury trial. October 10, 2013 the Nacogdoches Police Dept. received

a 911 call from a friend of Appellant, Mr. Charles Curl, who described Appellant

as driving into his front yard while he was mowing the grass, getting out of his car

and pointing a gun at Mr. Curl. At the time Mr. Curl called 911, he actually

believed Appellant was holding a pistol, later changing his testimony at trial after

he realized no weapon was involved. Appellant then backed out, damaging a tree

upon exit.

Responding to the 911 distress call, police discovered Appellant sitting in

his vehicle, several streets away, again, in a yard, having run over a chain link

fence bordering the side of the property. Mr. Polley exited the vehicle after local

law enforcement arrived on the scene, but according to State’s video exhibit #2,

did not appear excited or upset. Instead, he could not explain details of the

accident. He confirmed and then denied driving the vehicle, asked the police what

happened, refused to take the sobriety field tests, and refused medical treatment

offered by EMS personnel who arrived via ambulance within a few minutes.

Officers at the scene decided his behavior warranted an arrest but before

impounding his vehicle, conducted a thorough search. Although a pistol was never

found, they uncovered a baggie of marijuana on the floor of the back seat.
6
Appellant denied knowing it was there. He was read his Miranda rights in the

police car. The Officers drove Mr. Polley to the Nacogdoches police station where

they testified they obtained a Blood Search Warrant, and subsequently drove

Appellant to the hospital for a blood draw which resulted in a positive finding for

PCP when tested at the Texas DPS Crime laboratory in Austin, Texas.

Appellant was charged with DWI and Possession of Marijuana, both

Misdemeanor Bs, in Judge Sinz’ County Court-at-Law in Nacogdoches, Texas. At

his first docket call, Appellant entered a plea of Not Guilty, requested a jury trial,

and an attorney. Judge Sinz found him indigent. Lee Westmoreland was

appointed as counsel June 11, 2014. The jury found Appellant guilty of both

charges November 13, 2014. Punishment Phase II was set for December 15, 2014

before Judge Sinz. Punishment consisted of $297 court costs for each conviction,

plus 90 days in jail for each, to run concurrent. The following day, December 16, a

bond hearing was held at which both Appellant’s Counsel and the State agreed on

$7,000. for each conviction. Judge Sinz approved the amount.

After Punishment Phase, Appellant voiced desire to appeal the jury trial

verdict. Counsel submitted his Motion to Withdraw December 15, 2014. Notice

of appeal was perfected the same day, December 15, 2014. Judge Sinz appointed

attorney for appeal on December 22, 2014.

7
 ISSUES PRESENTED

1. Did Appellant suffer from ineffective assistance of counsel when his

attorney failed to require the State to produce the Blood Search Warrant, or

object to the manner by which officers testified it was obtained?

2. Did Appellant suffer from ineffective assistance of counsel when his

attorney failed to argue that Appellant did not know marijuana was in his

back seat, or that he purposefully tossed there?

STATEMENT OF FACTS

Officer Seymor was dispatched to the rental property of Charles Curl and

Vanessa Ross that sits on an acre of land. In their statements, unnoticed by them,

Appellant drove into the yard where Mr. Curl was mowing, then surprised him by

pointing what looked to be a black pistol, making a motion that simulated shooting

him, and hopping back into his Nissan Altima, bumping a tree as he backed out

onto the street. (R.R. V.1., Pgs. 32-35) Mr. Curl called 911 in a panic because he

thought Appellant was carrying a weapon, and threatening people. (R.R. V.1, Pg.

28, Ls. 22-25)

Meanwhile, Appellant drove to Ritchie St. where he drove into a private

residence’s yard, plowing over a chain link fence with his vehicle. When Sgt.

Keith Hawkins was dispatched to the accident scene, he discovered Mr. Polley

8
sitting in his car, dumbfounded. (R.R. V.1, Pgs. 46-47, Ls. 24-25, 1-5) Upon

questioning as to the cause of the accident, the Officer found Mr. Polley to be

disoriented, conflicting in his statements and generally confused. Suspecting

Appellant under the influence, he not only called for backup, but an EMS

ambulance, which was dispatched to the scene. Appellant refused medical

treatment as well as to participate in field sobriety tests, or a breath test. At that

point, he was placed into custody. As the officers searched his vehicle prior to

impoundment, a baggie of marijuana was discovered in the back seat. Mr. Polley

denied any knowledge of the marijuana. (State’s exhibit #2 video)

SUMMARY OF THE ARGUMENT

Appellant’s lack of effective assistance of counsel left him without a defense

and as such, ensured a guilty verdict for both charges. Because he appeared

disoriented when local police questioned him about the car accident, refused the

officer’s request to take the field sobriety tests, refused medical treatment, and

refused to take a breath test at the scene, law enforcement assumed Appellant was

under the influence of either alcohol or an illegal substance. One officer testified

that Appellant’s eyes were not focusing correctly and his breath had a chemical

smell. Based on that hunch, Appellant was placed in handcuffs and taken to a local

hospital where blood was drawn. The Blood Draw Search Warrant is the single

piece of evidence that is crucial for the State’s argument, because it’s a legal

9
requirement for someone who refuses to submit to a blood draw voluntarily absent

exigent, emergency circumstances. Schmerber v. California, 384 U.S. 757, 770-

771, 86 S. Ct. 1826, 1836, 16 L.Ed. 2d 908 (1966). (R.R. V.1, Pg. 55, Ls. 2-3)

No Blood Search Warrant was admitted into evidence by the State at trial, nor was

any objection made to the State’s failure to produce one. The blood test results

were the definitive proof that Appellant had traces of PCP in his system. Had there

been no blood test, the State’s very foundation would have failed; with a high

likelihood of different outcome by the jury. Without the Blood Search Warrant in

evidence, probable cause stated in the officer’s affidavit is unknown. In the event

a Blood Search Warrant was obtained, the method by which both officers testified

it was obtained fails to satisfy statutory criteria in the TEX. CODE CRIM. PROC.

Art. 18.01 (b)(f) and (g) because they both described “going to the police station,

typing it up, and faxing it to the Judge,” clearly in violation of the affidavit

requirement.

Argument for Appellant with regard to the Possession of Marijuana charge is

directed to the highly speculative nature of the State’s case in light of Appellant’s

documented behavior at the scene immediately after the automobile accident. The

State’s theory asserts that Appellant possessed the marijuana, but threw it in the

back of the vehicle in order to hide it from the police. Once more, Appellant’s

counsel fatally fails to confront or protest their speculation. “Care, Custody and

10
Control” are argued by the State. What is absent from Appellant’s defense is any

argument preceding the State’s position with regard to “knowingly or

intentionally.” First the State’s witnesses claim that Appellant is not able to think

clearly because he is under the influence of PCP; “lethargic and unresponsive” are

used to describe Mr. Polley numerous times throughout the trial. In fact, the

officers were so concerned over Appellant’s disoriented demeanor; EMS was

called to the scene. (R.R. V.1, Pg. 46, Ls. 11-17) (R.R. V.1, Pg. 106, Ls. 6-17)

Conversely, the State also argues that Appellant was making a calculated move,

sneakily tossing the marijuana in the back seat. (R.R. V1, Pg. 200, Ls. 9-12)

Cutting through the fog, one can see that these arguments directly contradict each

other, and as such, only one can be true. (R.R. V.1, Pg. 73, Ls. 10-16)

Appellant found himself in front of a jury with no defense from his

appointed counsel, and as such, was denied the very thing he requested in June,

2014, the assistance of an attorney. At the minimum, if a Blood Search Warrant

was obtained, no objection was made by defense counsel over testimony that the

document was faxed to Judge Sinz from the police station and he sent it back.

TEX. CODE CRIM.. PROC Art. 18.01 clearly states that the officer requesting the

warrant must make an affidavit before the Judge who then signs an oath that he has

been presented with qualifying probable cause evidence from the presenting

officer. Further, the State argues that Mr. Polley was so lethargic that he was

11
surely under the influence of some illegal substance, yet maintained the presence

of mind to try to hide a baggie of marijuana in the back of his vehicle. The

contradictory nature of this argument clearly means that only one position can be

the truth. It is for these reasons Appellant prays that the 12 th Court of Appeals

remand these cases back to the lower court for a new trial.

ARGUMENT

APPELLANT SUFFERED FROM INEFFECTIVE ASSISTANCE OF
COUNSEL

A. Standard of Review

Claims of ineffective assistance of counsel are evaluated under
the two-step analysis articulated in Strickland v. Washington,
466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 674 (1984). The first
step requires the appellant to demonstrate that trial’s counsel’s
representation fell below an objective standard of
reasonableness under prevailing norms. See Strickland, 466
U.S. at 688, 104 S.Ct. at 2065. To satisfy this step, the
appellant must identify the acts or omissions of counsel alleged
to be ineffective assistance and affirmatively prove that they
fell below the professional norm of reasonableness. See
McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App.
1996). The reviewing court will not find ineffectiveness by
isolating any portion of trial counsel’s representation, but will
judge the claim based on the totality of the representation. See
Strickland, 466 U.S. at 695, 104 S.Ct. at 2069.
To satisfy the Strickland standard, the appellant is also required
to show prejudice from the deficient performance of his
attorney. See Hernandez v. State, 988 S.W.2d 770, 772 (Tex.
Crim. App. 1999). To establish prejudice, an appellant must
prove but for counsel’s deficient performance, the result of the
proceeding would have been different. See Strickland, 466
12
 U.S. at 694, 104 S.Ct. at 2068. (Quoting from Cooper v. State,
928 S.W.2d 482, (Tex. App. – Tyler, 2003, no pet.))

B. NO OBJECTION TO BLOOD SEARCH WARRANT

1. Blood Search Warrant Necessary for Blood Draw But
Not Produced at Trial
Initially, in order to determine whether a valid Blood Search Warrant was

even necessary, the totality of the circumstances must be examined because the

taking of a blood sample is a search and seizure under both the federal and Texas

constitutions. Aliff v. State, 627 S.W.2d 166, 169 (Tex. Crim. App. 1982).

Naturally the first step is to try to get the driver’s consent to a blood test. This

must be attempted without psychological pressures brought to bear by law

enforcement. It must be free and voluntary. Fienen v. State, 390 S.W.3d 328, 332

(Tex. Crim. App. 2012) (citing Meekins v. State, 340 S.W.3d 454, 458-59 (Tex.

Crim. App. 2011)). When this is not possible, there are certain circumstances

where a blood sample taken without a warrant is not unreasonable search and

seizure and therefore, does not violate any constitutional guarantees. Schmerber v.

California, 384 U.S. 757, 770-771, 86 S.Ct. 1826, 1836, 16 L.Ed. 2d 908 (1966).

The Texas Transportation Code also contains statutory requirements that can

apply when a person is arrested for an intoxication related offense while operating

a motor vehicle. See TEX. TRANSP. CODE Chap. 724.011-013. Those statutes

13
apply when a person, other than the operator, is killed, or seriously injured and/or

taken to the hospital, as result of a motor vehicle accident and has refused to take a

breath or blood test. Under those limited conditions, a warrantless blood draw is

legal. Although Appellant refused to take the field sobriety tests, breath test, and

voluntarily submit to a blood draw, no one else was killed or seriously injured.

However, even a warrantless blood draw under Chap. 724 is legal only if the arrest

is supported by probable cause. State v. Baker, No. 12-12-00092, 12th Court of

Appeals, 10/13/2013 (citing State v. Mosely, 348 S.W.3d 435, 442 (Tex. App. –

Austin 2011, pet. ref’d)).

Exigent, emergency situations may also spark the exceptions where the

Blood Search Warrant is not required. For the most part, Texas courts have upheld

this approach when alcohol is present at the scene, officers unmistakably smelled it

on the driver, and the delay involved securing the warrant itself would result in the

alcohol level diminishing significantly, rendering the test useless. Douds v. State,

No. 14-12-00642-CR, 14th Court of Appeals, 10/15/2013. However, the U.S.

Supreme Court held that a blood draw was so personal, so evasive, that exceptions

to a valid Search Warrant should be rare. Even the fact that alcohol rapidly

dissipates from the bloodstream does not create a per se exigent circumstance.

Instead, the court must examine the totality of the circumstances. Missouri v.

McNeely, 133 S.Ct. 1552, 1562, L.Ed. 2d 696 (2013).

14
 In the situation at bar, probable cause was required in order for officers to

secure a Blood Search Warrant. At trial, testimony was offered that despite

Appellant’s refusal to participate in the field sobriety tests, Sgt. Keith Hawkins

believed Appellant’s eyes exhibited the resting nystagmus sign of intoxication,

although he admitted he was observing Appellant’s eyes from a position standing

behind Corporal Patterson and never administered the actual test for it. (R.R. V.1,

Pg. 51, Ls. 15-19). However, the actual probable cause cited in the Blood Search

Warrant affidavit was never admitted into evidence. Sgt. Hawkins testified as to

what he remembered from the accident scene thirteen months later at trial.

Further, there was no alcohol found in the vehicle, nor was alcohol detected

on Appellant’s breath from any of the officers. What they did find was marijuana

in the back of the vehicle. Appellant was the only person in the car. Testimony

from various law enforcement on the scene cooberated the finding that Appellant

did not smell like marijuana, and there were no signs that any had been smoked in

the vehicle. But what was apparent to Corporal Patterson was a chemical odor that

emitted from Appellant’s breath. Patterson believed he smelled PCP.

PCP is an illegal substance that can manifest itself through a large spectrum

of various behaviors; different with each person, making it extremely difficult to

pinpoint definitively without a blood test.

15
 When people are under the influence of PCP, several
different things can happen. They can have
hallucinations. They can become very violent. They
don’t feel pain. Their strength is abnormally heightened.
They can become violent and hurt people and hurt
officers.
Do they always act the same?
No they don’t. All different. I’ve seen similar things
happen with people on PCP but you can never tell one
from another. Sometimes they may be calm. Sometimes
they may just be lethargic and sluggish. . .
It affects people different ways. I’ve seen people
dancing naked in the street and I’ve seen some who are
just sluggish, slow, kind of confused.

(R.R. V.1, Pg. 85, Ls. 4-23)

Because Appellant’s counsel did not challenge the Blood Search Warrant

absence it is speculative to determine whether probable cause cited in the request

was sufficient. However, because Sgt. Hawkins and Corp. Patterson suspected

PCP, which is not able to be confirmed with absolute certainty, a Blood Search

Warrant was the proper legal route to take. Counsel for Appellant should have

insisted on its presentation for examination at trial.

2. Faxed Blood Search Warrant Does Not Comply with CCP Art. 18.01

What is not speculative was the manner in which the Blood Search Warrant

was secured from Judge Sinz. Testimony abounds and State’s exhibit #2 confirms

that law enforcement drove to the police station to type up the warrant, and then

16
subsequently to the hospital for the blood draw. They did not physically present

the warrant to the Judge in person. Testimony from Corporal Patterson indicated

that it was faxed and returned by the same method. The record is also silent as to

any telephone conversation taking place between the officers and the Judge for him

to confirm the information stated or identity of the person making the affidavit.

A blood search warrant is something we type up and send
to the Judge to actually get a warrant to take blood even
without consent. (R.R. V.1, Pg. 89, Ls. 1-3)
From here (explaining video) Mr. Polley is transported to
the police dept. where I fill out the search warrant, get
that filled out, fax it to the Judge. The Judge faxes it.
Back we go to the hospital. We draw the blood and then
we go to the jail. (R.R. V.1, Pg. 110, Ls. 15-19)
There is nothing in the record to support an objection to this procedure despite the

fact that it is in violation of the TEX. CODE CRIM. PROC. Art. 18.01 (c)(f) and

(g) because there is no “sworn affidavit” before a Judge. Without a valid Blood

Search Warrant confirming PCP in Appellant’s system, a jury could have come to

a very different verdict. Hence, Appellant’s counsel failed to provide an effective

defense. But for his counsel’s deficiencies, Appellant may have been acquitted.

C. NO OJECTION TO STATE’S CLAIM THAT APPELLANT HAD
“CARE, CUSTODY AND CONTROL” OF MARIJUANA

1. Appellant’s Accident Left Him Confused and Unresponsive

17
 The State’s theory of the marijuana discovered in Mr. Polley’s vehicle is that he

purposefully threw it behind the passenger’s seat to hide it from the police after he

crashed into the fence. (R.R. V.1, Pg. 105, Ls. 20-25) The problem with this

theory is evident from the video itself, State’s exhibit #2. Mr. Polley wasn’t in

panic mode when the police approached him sitting in his Nissan Altima. He was

confused and lethargic by testimonies offered by State’s witnesses.

State: In any event, Mr. Polley remained lethargic for hours?
Sgt. Hawkins: Yes.

(R.R. V.1, Pg. 73, Ls. 10-11)
Corp. Patterson: . . . And I asked him what happened and he seemed
confused and he looked at the car like he was curious
about what happened. Then at one point he changes
his answer and said he was not driving.
His demeanor was kind of sluggish, kind of confused.
That’s how I would describe him.
This is not normal behavior. Most people can answer
simple questions. Most people aren’t confused about
how they crashed into a fence.
(R.R. V.1, Pgs. 81, 90, 100, Ls. 14-17, 4-5, 9-11)

Despite repeated testimony from each officer that Mr. Polley was confused

about the circumstances surrounding his accident, contradicted his recollection of

the events, slow and sluggish in responding, the solitary defense presented had

nothing to do with countering the State’s arguments for possession, or theory of

18
Appellant’s attempt at deception. Counsel for the defense failed to refute the

knowledge and intent components of his charge after the State’s own witnesses

testified repeatedly to Mr. Polley’s dubious mental state. TEX. HEALTH &

SAFETY CODE § 481.121 (a) Instead, his argument clearly missed the mark.

During cross-examination, he asserted that it was Mr. Polley’s protected

constitutional right not to respond.

2. No Explanation Offered by Defense as to Origin of Marijuana

Not only was Appellant unresponsive and sluggish, but there was no

indication he had recently smoked marijuana nor were any ashes from burnt

marijuana found in Appellant’s vehicle. It was the smell of PCP law enforcement

testified to on Mr. Polley, not marijuana. (R.R. V.1, Pg. 86, Ls. 18-22) Although

the State concocted a theory consisting of Appellant using the marijuana combined

with PCP, to create “Wet.” (R.R. V.1, Pg. 74, 94 Ls. 20-25, 11-15) No PCP was

found in the car or on Appellant’s person. Appellant’s counsel fell below the

reasonable professional standard by not offering any alternate explanation of who

the marijuana belonged to, why or when it was left in the vehicle, possible back

seat riders who had ridden recently, or other drivers, etc. No questions as to

whether the bag of marijuana was tested for fingerprints. Nothing.

19
 PRAYER FOR RELIEF
Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994) states that

the starting point is to presume counsel was effective. In this trial multiple

defenses were left at the table. Arguments of such a material nature that the entire

course of the trial may have reversed, ending with an acquittal for Appellant.

While it is the Defendant’s constitutional right not to testify at his own trial, it is

also his constitutional right to be appointed effective assistance of counsel. If

counsel fails to provide any assistance, Appellant is clearly harmed. The record

confirms that the two prong Strickland test has been satisfied. “No defense” falls

below a reasonable standard for assistance of counsel. Failing to object to

statutory violations in obtaining the Blood Search Warrant from the officer that

secured it, is ineffective at the very least. It is for these reasons, that Appellant

prays the Court remand his cases back to the trial court for further proceedings.

CERTIFICATE OF COMPLIANCE – WORD COUNT

Tex. R. App. P. 9.4(1)(3)

I hereby certify that this original brief by Appellant was created using Microsoft Word,

and according to their Word Count feature the brief, including Cover page, List of the

Parties, Table of Contents, and Index of Authorities, is 4,456 words.

_____Georgia B. Kimmey_____

20
 APPENDIX A-1

TEXAS CODE OF CRIMINAL PROCEDURE Art. 18.01

21
 CODE OF CRIMINAL PROCEDURE

TITLE 1. CODE OF CRIMINAL PROCEDURE

CHAPTER 18. SEARCH WARRANTS

Art. 18.01. SEARCH WARRANT. (a) A "search warrant" is a
written order, issued by a magistrate and directed to a peace
officer, commanding him to search for any property or thing and
to seize the same and bring it before such magistrate or
commanding him to search for and photograph a child and to
deliver to the magistrate any of the film exposed pursuant to
the order.
(b) No search warrant shall issue for any purpose in this
state unless sufficient facts are first presented to satisfy the
issuing magistrate that probable cause does in fact exist for
its issuance. A sworn affidavit setting forth substantial facts
establishing probable cause shall be filed in every instance in
which a search warrant is requested. Except as provided by
Article 18.011, the affidavit is public information if executed,
and the magistrate's clerk shall make a copy of the affidavit
available for public inspection in the clerk's office during
normal business hours.
(c) A search warrant may not be issued under Article
18.02(10) unless the sworn affidavit required by Subsection (b)
sets forth sufficient facts to establish probable cause: (1)
that a specific offense has been committed, (2) that the
specifically described property or items that are to be searched
for or seized constitute evidence of that offense or evidence
that a particular person committed that offense, and (3) that
the property or items constituting evidence to be searched for
or seized are located at or on the particular person, place, or
thing to be searched. Except as provided by Subsections (d),
(i), and (j), only a judge of a municipal court of record or a
county court who is an attorney licensed by the State of Texas,
a statutory county court judge, a district court judge, a judge
of the Court of Criminal Appeals, including the presiding judge,

22
a justice of the Supreme Court of Texas, including the chief
justice, or a magistrate with jurisdiction over criminal cases
serving a district court may issue warrants under Article
18.02(10).
(d) Only the specifically described property or items set
forth in a search warrant issued under Subdivision (10) of
Article 18.02 of this code or property, items or contraband
enumerated in Subdivisions (1) through (9) or in Subdivision
(12) of Article 18.02 of this code may be seized. A subsequent
search warrant may be issued pursuant to Subdivision (10) of
Article 18.02 of this code to search the same person, place, or
thing subjected to a prior search under Subdivision (10) of
Article 18.02 of this code only if the subsequent search warrant
is issued by a judge of a district court, a court of appeals,
the court of criminal appeals, or the supreme court.
(e) A search warrant may not be issued under Subdivision
(10) of Article 18.02 of this code to search for and seize
property or items that are not described in Subdivisions (1)
through (9) of that article and that are located in an office of
a newspaper, news magazine, television station, or radio
station, and in no event may property or items not described in
Subdivisions (1) through (9) of that article be legally seized
in any search pursuant to a search warrant of an office of a
newspaper, news magazine, television station, or radio station.
(f) A search warrant may not be issued pursuant to Article
18.021 of this code unless the sworn affidavit required by
Subsection (b) of this article sets forth sufficient facts to
establish probable cause:
(1) that a specific offense has been committed;
(2) that a specifically described person has been a victim
of the offense;
(3) that evidence of the offense or evidence that a
particular person committed the offense can be detected by
photographic means; and
(4) that the person to be searched for and photographed is
located at the particular place to be searched.
23
 (g) A search warrant may not be issued under Subdivision
(12), Article 18.02, of this code unless the sworn affidavit
required by Subsection (b) of this article sets forth sufficient
facts to establish probable cause that a specific felony offense
has been committed and that the specifically described property
or items that are to be searched for or seized constitute
contraband as defined in Article 59.01 of this code and are
located at or on the particular person, place, or thing to be
searched.
(h) Except as provided by Subsection (i) of this article, a
warrant under Subdivision (12), Article 18.02 of this code may
only be issued by:
(1) a judge of a municipal court of record who is an
attorney licensed by the state;
(2) a judge of a county court who is an attorney licensed
by the state; or
(3) a judge of a statutory county court, district court,
the court of criminal appeals, or the supreme court.
(i) In a county that does not have a judge of a municipal
court of record who is an attorney licensed by the state, a
county court judge who is an attorney licensed by the state, or
a statutory county court judge, any magistrate may issue a
search warrant under Subdivision (10) or Subdivision (12) of
Article 18.02 of this code. This subsection is not applicable
to a subsequent search warrant under Subdivision (10) of Article
18.02 of this code.
(j) Any magistrate who is an attorney licensed by this
state may issue a search warrant under Article 18.02(10) to
collect a blood specimen from a person who:
(1) is arrested for an offense under Section 49.04,
49.045, 49.05, 49.06, 49.065, 49.07, or 49.08, Penal Code; and
(2) refuses to submit to a breath or blood alcohol
test.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts
1973, 63rd Leg., p. 982, ch. 399, Sec. 2(E), eff. Jan. 1, 1974;

24
Acts 1977, 65th Leg., p. 640, ch. 237, Sec. 1, eff. May 25,
1977.

Sec. (c) amended by Acts 1979, 66th Leg., p. 1124, ch. 536, Sec.
1, eff. June 11, 1979; Sec. (e) added by Acts 1979, 66th Leg.,
p. 1076, ch. 505, Sec. 1, eff. Sept. 1, 1979; Sec. (a) amended
by Acts 1981, 67th Leg., p. 759, ch. 289, Sec. 3, eff. Sept. 1,
1981; Sec. (b) amended by Acts 1981, 67th Leg., p. 2789, ch.
755, Sec. 1, eff. Sept. 1, 1981; Sec. (f) added by Acts 1981,
67th Leg., p. 759, ch. 289, Sec. 4, eff. Sept. 1, 1981; Sec.
(c) amended by Acts 1987, 70th Leg., ch. 686, Sec. 1, eff. Sept.
1, 1987; Secs. (g) and (h) added by Acts 1989, 71st Leg., 1st
C.S., ch. 12, Sec. 2, eff. Oct. 18, 1989; Secs. (c), (h)
amended by and Sec. (i) added by Acts 1991, 72nd Leg., ch. 73,
Sec. 1, eff. May 9, 1991; Secs. (c), (d), (i) amended by Acts
1995, 74th Leg., ch. 670, Sec. 1, eff. Sept. 1, 1995; Subsecs.
(c), (h) amended by Acts 1997, 75th Leg., ch. 604, Sec. 1, eff.
Sept. 1, 1997; Subsec. (b) amended by Acts 1999, 76th Leg., ch.
167, Sec. 1, eff. Aug. 30, 1999; Subsec. (d) amended by Acts
1999, 76th Leg., ch. 1469, Sec. 1, eff. June 19, 1999; Subsec.
(i) amended by Acts 2001, 77th Leg., ch. 1395, Sec. 1, eff. June
16, 2001.
Amended by:
Acts 2007, 80th Leg., R.S., Ch. 355 (S.B. 244), Sec. 1,
eff. September 1, 2007.
Acts 2007, 80th Leg., R.S., Ch. 748 (H.B. 3131), Sec. 1,
eff. September 1, 2007.
Acts 2009, 81st Leg., R.S., Ch. 1348 (S.B. 328), Sec. 5,
eff. September 1, 2009.
Acts 2011, 82nd Leg., R.S., Ch. 66 (S.B. 483), Sec. 3, eff.
September 1, 2011.

25
 APPENDIX A-2

TEXAS TRANSPORTATION CODE Chap. 724

26
 TRANSPORTATION CODE

TITLE 7. VEHICLES AND TRAFFIC

SUBTITLE J. MISCELLANEOUS PROVISIONS

CHAPTER 724. IMPLIED CONSENT

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 724.001. DEFINITIONS. In this chapter:
(1) "Alcohol concentration" has the meaning assigned
by Section 49.01, Penal Code.
(2) "Arrest" includes the taking into custody of a
child, as defined by Section 51.02, Family Code.
(3) "Controlled substance" has the meaning assigned
by Section 481.002, Health and Safety Code.
(4) "Criminal charge" includes a charge that may
result in a proceeding under Title 3, Family Code.
(5) "Criminal proceeding" includes a proceeding under
Title 3, Family Code.
(6) "Dangerous drug" has the meaning assigned by
Section 483.001, Health and Safety Code.
(7) "Department" means the Department of Public
Safety.
(8) "Drug" has the meaning assigned by Section
481.002, Health and Safety Code.
(9) "Intoxicated" has the meaning assigned by Section
49.01, Penal Code.
(10) "License" has the meaning assigned by Section
521.001.
(11) "Operate" means to drive or be in actual control
of a motor vehicle or watercraft.
(12) "Public place" has the meaning assigned by
Section 1.07, Penal Code.

27
Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.
Amended by Acts 1997, 75th Leg., ch. 1013, Sec. 31, eff. Sept.
1, 1997.

Sec. 724.002. APPLICABILITY. The provisions of this
chapter that apply to suspension of a license for refusal to
submit to the taking of a specimen (Sections 724.013, 724.015,
and 724.048 and Subchapters C and D) apply only to a person
arrested for an offense involving the operation of a motor
vehicle or watercraft powered with an engine having a
manufacturer's rating of 50 horsepower or above.

Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.
Amended by Acts 2001, 77th Leg., ch. 444, Sec. 7, eff. Sept. 1,
2001.

Sec. 724.003. RULEMAKING. The department and the State
Office of Administrative Hearings shall adopt rules to
administer this chapter.

Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.

SUBCHAPTER B. TAKING AND ANALYSIS OF SPECIMEN

Sec. 724.011. CONSENT TO TAKING OF SPECIMEN. (a) 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 a watercraft, while intoxicated,
or an offense under Section 106.041, Alcoholic Beverage Code,
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 substance.
(b) A person arrested for an offense described by
Subsection (a) may consent to submit to the taking of any other

28
type of specimen to determine the person's alcohol
concentration.

Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.
Amended by Acts 1997, 75th Leg., ch. 1013, Sec. 32, eff. Sept.
1, 1997.

Sec. 724.012. TAKING OF SPECIMEN. (a) One or more
specimens of a person's breath or blood may be taken if the
person is arrested and at the request of a peace officer having
reasonable grounds to believe the person:
(1) while intoxicated was operating a motor vehicle
in a public place, or a watercraft; or
(2) was in violation of Section 106.041, Alcoholic
Beverage Code.
(b) A peace officer shall require the taking of a specimen
of the person's breath or blood under any of the following
circumstances if the officer arrests the person for an offense
under Chapter 49, Penal Code, involving the operation of a motor
vehicle or a watercraft and the person refuses the officer's
request to submit to the taking of a specimen voluntarily:
(1) the person was the operator of a motor vehicle or
a watercraft involved in an accident that the officer reasonably
believes occurred 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) any individual has died or will die;
(B) an individual other than the person has
suffered serious bodily injury; or
(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

29
 (3) at the time of the arrest, the officer possesses
or receives reliable information from a credible source that the
person:
(A) has been previously convicted of or placed
on community supervision for an offense under Section 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 of or placed on community supervision for
an offense under Section 49.04, 49.05, 49.06, or 49.065, Penal
Code, or an offense under the laws of another state containing
elements substantially similar to the elements of an offense
under those sections.
(c) The peace officer shall designate the type of specimen
to be taken.
(d) In this section, "bodily injury" and "serious bodily
injury" have the meanings assigned by Section 1.07, Penal Code.

Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.
Amended by Acts 1997, 75th Leg., ch. 1013, Sec. 33, eff. Sept.
1, 1997; Acts 2003, 78th Leg., ch. 422, Sec. 1, eff. Sept. 1,
2003.
Amended by:
Acts 2009, 81st Leg., R.S., Ch. 1348 (S.B. 328), Sec. 18,
eff. September 1, 2009.

30
 APPENDIX A-3

TEXAS HEALTH & SAFETY CODE §481.121

31
 HEALTH AND SAFETY CODE

TITLE 6. FOOD, DRUGS, ALCOHOL, AND HAZARDOUS SUBSTANCES

SUBTITLE C. SUBSTANCE ABUSE REGULATION AND CRIMES

CHAPTER 481. TEXAS CONTROLLED SUBSTANCES ACT

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 481.121. OFFENSE: POSSESSION OF MARIHUANA. (a)
Except as authorized by this chapter, a person commits an
offense if the person knowingly or intentionally possesses a
usable quantity of marihuana.
(b) An offense under Subsection (a) is:
(1) a Class B misdemeanor if the amount of marihuana
possessed is two ounces or less;
(2) a Class A misdemeanor if the amount of marihuana
possessed is four ounces or less but more than two ounces;
(3) a state jail felony if the amount of marihuana
possessed is five pounds or less but more than four ounces;
(4) a felony of the third degree if the amount of
marihuana possessed is 50 pounds or less but more than 5 pounds;
(5) a felony of the second degree if the amount of
marihuana possessed is 2,000 pounds or less but more than 50
pounds; and
(6) punishable by imprisonment in the Texas
Department of Criminal Justice for life or for a term of not
more than 99 years or less than 5 years, and a fine not to
exceed $50,000, if the amount of marihuana possessed is more
than 2,000 pounds.

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 2.02, eff. Sept.
1, 1994.
Amended by:

32
 Acts 2009, 81st Leg., R.S., Ch. 87 (S.B. 1969), Sec.
25.105, eff. September 1, 2009.

33