PD-0838-15
PD-0838-15 COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 7/6/2015 4:08:04 PM
Accepted 7/7/2015 4:13:42 PM
ABEL ACOSTA
No. CLERK
In the
COURT OF CRIMINAL APPEALS
For the
STATE OF TEXAS
THE STATE OF TEXAS
Petitioner
v
ALLEN TERCERO
Respondent
On State=s Petition for Discretionary Review from the First Court of Appeals,
Appeal Number 01-14-00120-CR
On Appeal from the 434th District Court of Fort Bend County, Texas, Cause
Number 10-DCR-056111
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
301 Jackson Street
Richmond, Texas 77469
281-341-4460 (Tel.)
281-238-3340 (Fax)
July 7, 2015 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.
Petitioner:
THE STATE OF TEXAS
Respondent:
ALLEN TERCERO
Counsel for Respondent:
LESLIE LEGRAND
(AT TRIAL AND ON APPEAL)
Address(es):
2000 Smith Street
Houston, Texas 77002
Counsel for Petitioner/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
ABDUL FARUKHI
Assistant District Attorneys, Ft. Bend County, Tx.
(AT TRIAL)
JASON BENNYHOFF
Assistant District Attorney, Ft. Bend County, Tx.
(ON APPEAL)
ii
IDENTIFICATION OF PARTIES (cont.)
JOHN J. HARRITY, III
Assistant District Attorney, Ft. Bend County, Tx.
Trial Judge:
The Hon. James Shoemake
434th District Court
Fort Bend County, Texas
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 warrantless 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 ............................................................................................ 8
CERTIFICATE OF SERVICE .................................................................................. 9
APPENDIX .............................................................................................................. 10
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.CHouston
[14th Dist.] Oct. 15, 2013), rev=d by Douds v. State, 434 S.W.3d 842 (Tex.
App.CHouston [14th Dist.] 2014, pet. granted Sep. 17, 2014) ................................. 6
State v. Tercero, No. 01-14-00120-CR, 2015 WL 1544519 at *4 (Tex.
App.CHouston [1st Dist.] Apr. 2, 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
State v. Jackson, PD-0823-14, 2015 WL 4024293 at *9 (Tex. Crim. App. Jul. 1,
2015) .......................................................................................................................... 7
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
THE STATE OF TEXAS
Petitioner
v
ALLEN TERCERO
Respondent
On State=s Petition for Discretionary Review from the First Court of Appeals,
Appeal Number 01-14-00120-CR
On Appeal from the 434th District Court of Fort Bend County, Texas, Cause
Number 10-DCR-056111
STATE=S PETITION FOR DISCRETIONARY REVIEW
TO THE HONORABLE COURT OF CRIMINAL APPEALS:
Comes now the State, by and through its 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
Allen Tercero, hereinafter referred to as “Tercero,” was seen by Sugar Land
Police officers driving a vehicle late at night with a flat tire. The officers followed
Tercero into a nearby parking lot, and upon approaching Tercero, observed him to
3
smell of alcohol, have bloodshot eyes, and slow, slurred speech. Tercero refused to
perform field sobriety tests and was arrested for driving while intoxicated. The
officers learned that Tercero had two prior convictions for driving while intoxicated,
and based on this, they transported Tercero to a nearby hospital and obtained a
“mandatory” blood draw over Tercero’s objection.
Tercero moved to suppress the blood evidence relying on the Supreme
Court’s decision in Missouri v. McNeely, which was decided after he was arrested on
this charge. The trial court granted Tercero’s motion to suppress the blood
evidence on the grounds that the taking of Tercero’s blood without a warrant
violated the Fourth Amendment to the United States Constitution under the rationale
in McNeely.
STATEMENT OF PROCEDURAL HISTORY
Tercero 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 granted that motion, and the State appealed that ruling.
On April 2, 2015, the Fourteenth Court of Appeals affirmed the ruling of the
trial court. The State filed a motion for rehearing and a motion for en banc
reconsideration on April 14, 2015. The First Court of Appeals denied the State=s
motion for rehearing and motion for en banc reconsideration on June 30, 2015.
4
GROUND FOR REVIEW
Did the First Court of Appeals err in holding that there is no way in which the
warrantless 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 First Court of Appeals, in affirming the trial court’s grant of Tercero’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 Tercero withdrew his
consent. State v. Tercero, No. 01-14-00120-CR, 2015 WL 1544519 at *4 (Tex.
App.CHouston [1st Dist.] Apr. 2, 2015). The First 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 also found unconvincing by the First Court of Appeals, including that
the warrantless blood draw was justified under the Aspecial 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
(1987). The First Court of Appeals= opinion also overruled that argument, holding
that a Fourth Amendment balancing test was not to be used to uphold the officers’
5
taking of Tercero’s blood. Tercero, 2015 WL 1544519 at *6.
The First Court of Appeals also found unconvincing 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.CHouston [14th Dist.] Oct. 15,
2013), rev=d by Douds v. State, 434 S.W.3d 842 (Tex. App.CHouston [14th Dist.]
2014, pet. granted Sep. 17, 2014).
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 reconsideration in Villarreal, this Court should grant the State=s petition for
discretionary review in this case to address these same issues here.
6
The concurrence in State v. Jackson, PD-0823-14, 2015 WL 4024293 at *9
(Tex. Crim. App. Jul. 1, 2015), Hervey, concurring, also addressed the application
of the exclusionary rule embodied in Texas Code of Criminal Procedure article
38.23 and discussed how the application of the exclusionary rule should not be
applied in that case because it would not serve the ends of the exclusionary rule in
that it would not have prevented police misconduct. The State would urge the
Court to adopt that stance with regard to the blood evidence in this case as the
officers were acting under a reasonable understanding that the statute in question
authorized their act and they did not intend, nor were they argued to have intended
any illegality.
7
PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, Petitioner, 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)
8
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 Leslie LeGrand,
counsel for Allen Tercero, at brittanyb@texasdwilaw.com, said email address
having been verified as a correct email address for Mr. LeGrand’s legal secretary,
and that these documents are being served by U.S. mail on counsel for Allen
Tercero, 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 1,690 words.
/s/Jason Bennyhoff
Jason Bennyhoff
9
APPENDIX
Exhibit A - First Court of Appeals opinion in State v. Tercero
Exhibit B - Order granting rehearing, State=s Motion for Rehearing and Amended
Motion for Rehearing in State v. Villarreal
10