PD-0418-15
PD-0418-15 COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 4/16/2015 11:28:45 AM
Accepted 4/21/2015 10:50:29 AM
ABEL ACOSTA
No. CLERK
In the
COURT OF CRIMINAL APPEALS
For the
STATE OF TEXAS
THOMAS ANDREW EVANS, II
Appellant
v
THE STATE OF TEXAS
Appellee
On State’s Petition for Discretionary Review from the Fourteenth Court of
Appeals, Appeal Number 14-13-00642-CR
On Appeal from County Court at Law Number Two of Fort Bend County,
Texas, Cause Number 12-CCR-159784
STATE’S PETITION FOR DISCRETIONARY REVIEW
Counsel for Petitioner JOHN F. HEALEY
DISTRICT ATTORNEY
FORT BEND COUNTY, TEXAS
JASON BENNYHOFF
ASSISTANT DISTRICT ATTORNEY
FORT BEND COUNTY, TEXAS
April 21, 2015 309 South Fourth Street, 2nd floor
Richmond, Texas 77469
281-341-4460 (Tel.)
281-238-3340 (Fax)
jason.bennyhoff@fortbendcountytx.gov
IDENTIFICATION OF PARTIES
Pursuant to Tex. R. App. P. 38.1, a complete list of the names of all interested
parties is provided below so the members of this Honorable Court may at once
determine whether they are disqualified to serve or should recuse themselves from
participating in the decision of the case.
Appellant:
THOMAS ANDREW EVANS, II
Appellee:
THE STATE OF TEXAS
Counsel for Appellant:
DOUGLAS M. DURHAM
(AT TRIAL AND ON APPEAL)
Address(es):
2800 Post Oak Boulevard, Suite 4100
Houston, Texas 77056
Counsel for Appellee/State:
JOHN F. HEALEY, JR.
District Attorney of Fort Bend County, Texas
Fort Bend County District Attorney’s Office
Address(es):
301 Jackson Street, Rm 101
Richmond, Texas 77469
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IDENTIFICATION OF PARTIES (cont.)
RICHA KUMAR
Assistant District Attorneys, Ft. Bend County, Tx.
(AT TRIAL)
JASON BENNYHOFF
Assistant District Attorney, Ft. Bend County, Tx.
(ON APPEAL)
JOHN J. HARRITY, III
Assistant District Attorney, Ft. Bend County, Tx.
Trial Judge:
The Hon. Jeffrey A. McMeans
County Court at Law Number Two
Fort Bend County, Texas
The Hon. H. Everett Kennedy
Associate Judge, County Court at Law Number Two
Fort Bend County, Texas
Sitting by assignment of the presiding judge
iii
TABLE OF CONTENTS
SECTION PAGE
INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . 2
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
STATEMENT OF PROCEDURAL HISTORY. . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
GROUND FOR REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Did the Fourteenth Court of Appeals err in holding that there is no
way in which the mandatory blood draw taken in this case was
reasonable under the Fourth Amendment to the United States
Constitution, in reliance on this Court’s opinion in State v. Villarreal?
.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ARGUMENT AND AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
APPENDIX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
iv
INDEX OF AUTHORITIES
CASES PAGE
Beeman v. State, 86 S.W.3d 613, 616 (Tex. Crim. App. 2002).. . . . . . . . . . . . . . . 6
Douds v. State, No. 14-12-00642-CR, 2013 WL 5629818 (Tex. App.—Houston
[14th Dist.] Oct. 15, 2013), rev’d by Douds v. State, 434 S.W.3d 842 (Tex.
App.—Houston [14th Dist.] 2014, pet. granted Sep. 17, 2014). . . . . . . . . . . . . . . . 6
Evans v. State, No. 14-13-00642, 2015 WL 545702 at *8 (Tex. App.—Houston
[14th Dist.] Feb. 10, 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Griffin v. Wisconsin, 483 U.S. 868, 873 (1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602, 620-21 (1989). . . . . . . . . . 5
State v. Villarreal, No. PD-0306-14, 2014 WL 6734178 (Tex. Crim. App. Nov. 26,
2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
1
STATEMENT REGARDING ORAL ARGUMENT
The State does not request oral argument.
2
No.
In the
COURT OF CRIMINAL APPEALS
For the
STATE OF TEXAS
THOMAS ANDREW EVANS, II
Appellant
v
THE STATE OF TEXAS
Appellee
On State’s Petition for Discretionary Review from the Fourteenth Court of
Appeals, Appeal Number 14-13-00642-CR
On Appeal from County Court at Law Number Two of Fort Bend County,
Texas, Cause Number 12-DCR-159784
STATE’S PETITION FOR DISCRETIONARY REVIEW
TO THE HONORABLE COURT OF CRIMINAL APPEALS:
Comes now the State, by and through it’s District Attorney of Fort Bend
County, and respectfully submits to the Court its petition for discretionary review
pursuant to the Texas Rules of Appellate Procedure in the above named cause.
STATEMENT OF THE CASE
Thomas Andrew Evans, II, (hereinafter referred to as “Evans”) drove his
3
Toyota Tundra pickup truck through an intersection and struck a Chevrolet Traverse,
causing the Traverse to flip over several times. The two occupants of the Chevrolet
Traverse were transported to the hospital for their injuries. Evans smelled of alcohol,
had red, glassy eyes, and slurred his speech when he was interviewed by the
responding DPS Trooper. Evans admitted drinking two to three beers. Evans refused
to participate in field sobriety tests and refused to give a sample of his blood. The
Trooper ultimately took a sample of Evans blood over Evans’s objection in keeping
with Texas Transportation Code section 724.012(b)(1)(C).
STATEMENT OF PROCEDURAL HISTORY
Evans filed a motion to suppress in the trial court, arguing that the involuntary
blood draw violated the Fourth Amendment to the United States Constitution. The
trial court denied that motion, and Evans then entered into a plea bargain agreement
with the State, retaining his right to appeal the trial court’s ruling.
On February 10, 2015, the Fourteenth Court of Appeals reversed the ruling of
the trial court and remanded the case to the trial court. The State filed a motion for
rehearing and a motion for en banc reconsideration on February 24, 2015. The
Fourteenth Court of Appeals denied the State’s motion for rehearing and motion for
en banc reconsideration (Boyce, J., would grant reconsideration en banc), on March
17, 2015.
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GROUND FOR REVIEW
Did the Fourteenth Court of Appeals err in holding that there is no way in
which the mandatory blood draw taken in this case was reasonable under the Fourth
Amendment to the United States Constitution, in reliance on this Court’s opinion in
State v. Villarreal?
ARGUMENT AND AUTHORITIES
The Fourteenth Court of Appeals, in reversing the trial court’s denial of
Evans’s motion to suppress the mandatory blood draw in this case, held that implied
consent could not justify the warrantless blood draw in this case where Evans
withdrew his consent. Evans v. State, No. 14-13-00642, 2015 WL 545702 at *8 (Tex.
App.—Houston [14th Dist.] Feb. 10, 2015). The Fourteenth Court of Appeals based
this holding on this Court’s opinion in State v. Villarreal, No. PD-0306-14, 2014 WL
6734178 (Tex. Crim. App. Nov. 26, 2014). Id.
The State raised numerous other grounds in support of its argument that the
warrantless blood draw in this case was permissible under the Fourth Amendment,
which were not addressed in the Fourteenth Court of Appeals’ opinion, including that
the warrantless blood draw was justified under the “special needs doctrine” under
Maryland v. King, 133 S.Ct. 1958, 1980 (2013), Skinner v. Ry. Labor Executives’
Ass’n, 489 U.S. 602, 620-21 (1989), and Griffin v. Wisconsin, 483 U.S. 868, 873
5
(1987). The Fourteenth Court of Appeals’ opinion, while not addressing the State’s
argument in this vein necessarily impliedly overruled that argument.
The Fourteenth Court of Appeals also did not address the State’s argument that
Article 38.23 of the Texas Code of Criminal Procedure should not be read to require
exclusion of the blood draw evidence obtained in this case in light of the fact that the
officers were acting in reliance on the body of case law which read Chapter 724 of
the Texas Transportation Code to mandate blood draws without warrants. See, e.g.,
Beeman v. State, 86 S.W.3d 613, 616 (Tex. Crim. App. 2002); Douds v. State, No. 14-
12-00642-CR, 2013 WL 5629818 (Tex. App.—Houston [14th Dist.] Oct. 15, 2013),
rev’d by Douds v. State, 434 S.W.3d 842 (Tex. App.—Houston [14th Dist.] 2014, pet.
granted Sep. 17, 2014). The Fourteenth Court of Appeals’ opinion, while not
addressing the State’s argument in this vein necessarily impliedly overruled this
argument as well.
This Court has since granted the State’s motion for rehearing in State v.
Villarreal. The State’s motion for rehearing raised both the issue of the continuing
nature of the defendant’s consent despite his attempt to withdraw that consent and the
applicability of the special needs doctrine. See State’s Motion for Rehearing and
Amended Motion for Rehearing in State v. Villarreal attached hereto as Exhibit B in
the attached appendix. Being that these issues are considered worthy of this Court’s
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reconsideration in Villarreal, this Court should grant the State’s petition for
discretionary review in this case to address these same issues here.
PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, Appellee, the State of Texas
prays that the State’s Petition for Discretionary Review be granted, that the case be
set for submission, and that after submission, this Court reverse the decision of the
Court of Appeals.
Respectfully submitted,
John F. Healey, Jr.
/s/ Jason Bennyhoff
Jason Bennyhoff
Assistant District Attorney
Fort Bend County, Texas
TBC# 24050277
309 South Fourth Street, 2nd Floor
Richmond, Texas 77469
281-341-4460 (office)
281-238-3340 (fax)
7
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the foregoing State’s
Petition for Discretionary Review (and its appendix) has been served upon
Douglas Durham, counsel for Thomas Andrew Evans, II, at
durham.doug@yahoo.com, and that these documents are being served by U.S.
mail on counsel for Thomas Andrew Evans, II, and upon the State Prosecuting
Attorney by U.S. mail on the date of the filing of the original in this case.
/s/ Jason Bennyhoff
Jason Bennyhoff
Certificate of Compliance with Texas Rule of Appellate Procedure 9.4(i)(3)
In accordance with Texas Rule of Appellate Procedure 9.4(i)(3), I, Jason Bennyhoff,
hereby certify that the foregoing electronically created document has been reviewed
by the word count function of the creating computer program, and has been found to
be in compliance with the requisite word count requirement in that its word count in
its entirety is 1,594 words.
/s/Jason Bennyhoff
Jason Bennyhoff
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APPENDIX
Exhibit A - Fourteenth Court of Appeals opinion in Evans v. State
Exhibit B - Order granting rehearing, State’s Motion for Rehearing and Amended
Motion for Rehearing in State v. Villarreal
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