Cook, Justin

PD-1234-15
PD-1234-15 COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 9/18/2015 3:54:10 PM
Accepted 9/22/2015 12:26:12 PM
No. PD- -15 ABEL ACOSTA
CLERK
(Court of Appeals No. 05-14-00483-CR)

IN THE

COURT OF CRIMINAL APPEALS

OF TEXAS

JUSTIN COOK,

Petitioner,
v.

THE STATE OF TEXAS

PETITIONER'S PETITION FOR DISCRETIONARY REVIEW

On discretionary review from the Court of Appeals
Fifth District of Texas at Dallas

MELVYN CARSON BRUDER

516 Turley Law Center
6440 N. Central Expressway
Dallas, Texas 75206
214.987.3500
September 22, 2015
214.987.3518 Telecopier

Counsel for Petitioner
 IDENTITY OF JUDGE, PARTIES, AND COUNSEL

The trial court judge in this case was Peggy Hoffman.

The parties to the judgment in this case are Steven Lynn Jones and the State of
Texas.

The names and addresses of all trial and appellate counsel are:

Blake Penfield
Assistant Criminal District Attorney
Frank Crowley Courts Building
133 N. Riverfront Boulevard
Dallas, TX 75207

Trial Counsel for the State of Texas

Melvyn Carson Bruder
516 Turley Law Center
6440 N. Central Expressway
Dallas, TX 75206

Trial Counsel for Mr. Cook

Larissa Roeder
Assistant Criminal District Attorney
Frank Crowley Courts Building
133 N. Riverfront Boulevard
Dallas, TX 75207

Appellate Counsel for the State of Texas

Melvyn Carson Bruder
516 Turley Law Center
6440 N. Central Expressway
Dallas, TX 75206

Appellate Counsel for Mr. Cook

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 TABLE OF CONTENTS

Identity of Judge, Parties, and Counsel ................................................................. I

Table of Contents ................................................................................................. ii

Index of Authorities ............................................................................................ iv

Statement Regarding Oral Argument ................................................................... 2

Statement of the Case ........................................................................................... 2

Statement of the Procedural History of the Case ................................................. 2

Grounds for Review ............................................................................................... 3

1. The court of appeals erred by failing to examine the impact
of Implied Consent Law warnings on the accused and by
concluding that an accused’s “implied consent” is
sufficient to satisfy the Fourth Amendment’s requirement
of consent.

2. The court of appeals improperly shifted the burden of
proving the voluntariness of consent to a warrantless
seizure protected by the Fourth Amendment from the State
to the accused.

Relevant Facts ....................................................................................................... 3

The Court of Appeals’ Decision ........................................................................... 4

Argument

Ground for Review No. 1 ........................................................................... 5

Ground for Review No. 2 ........................................................................... 9

Prayer for Relief .................................................................................................. 12

Certificate of Service ........................................................................................... 12

Certificate of Compliance ................................................................................... 13

Appendix A - Opinion of the Court of Appeals in Cook v. State ...................... 14

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Appendix B - Order Denying Motion for Rehearing in Cook v. State ............ 21

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 INDEX OF AUTHORITIES

Cases:

Allridge v. State
850 S.W.2d 471 (Tex. Crim. App. 1991) ........................................ 6

Bumper v. North Carolina
391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968) ..................... 6

Camara v. Municipal Court of the City and County of San Francisco
387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967) ..................... 8

Cook v. State
No. 04-14-00483-CR (Tex.App. – Dallas, June 9, 2015) ..... passim

Coolidge v. New Hampshire
403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) ................... 10

District of Columbia v. Little
339 U.S. 1, 70 S.Ct. 468, 94 L.Ed. 599 (1950) ............................... 8

Doyle v. Ohio
426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976) ................... 8, 9

Fienen v. State
390 S.W.3d 328 (Tex. Crim. App. 2012) ............................... 5, 6, 10

Florida v. Jimenez
500 U.S. 248, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991) ................. 6

Florida v. Royer
460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) ................... 6

Garrity v. New Jersey
385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967) ................... 7, 8

Miranda v. Arizona
384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d 694 (1966) .................... 9

Missouri v. McNeely
___ U.S. ____, 133 S.Ct. 1552, ___ L.Ed.2d (2013) ...................... 5

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 Powell v. State
660 S.W.2d 842 (Tex.App. – El Paso 1983) ................................... 9

Reeves v. State
969 S.w.2d 223 (Tex.App. – Waco 1998) ................................... 8, 9

Schneckloth v. Bustamonte
412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) ............... 5, 10

See v. Seattle
387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (11967) ................... 8

Skinner v. Ry. Labor Executives’ Assn
489 U.S. 602, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989) ................. 5

United States v. Runyon
290 F.3d 223 (5th Cir. 2002) ........................................................... 8

Weaver v. State
349 S.W.3d 521 (Tex. Crim. App. 2011) ................................... 6, 10

Constitutions:

U.S.CONST.amend IV ........................................................................ passim

Statutes:

TEX.TRANSP.CODE ch. 724 ........................................................................ 3
TEX.TRANSP.CODE § 724.015(1) and (2) .................................................. 7

Rules:

TEX.R.APP.P. 66.3(b) and (c) ..................................................................... 2

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 No. PD- -15

(Court of Appeals No. 05-14-00483-CR)

IN THE

COURT OF CRIMINAL APPEALS

OF TEXAS

JUSTIN COOK,

Petitioner,
v.

THE STATE OF TEXAS

PETITIONER'S PETITION FOR DISCRETIONARY REVIEW

On discretionary review from the Court of Appeals
Fifth District of Texas at Dallas

TO THE COURT OF CRIMINAL APPEALS OF TEXAS:

JUSTIN COOK, Petitioner, petitions this Court to grant discretionary review

to review the judgment of the Court of Appeals for the Fifth District of Texas

affirming his conviction for driving while intoxicated because the court of appeals
has decided important questions of law in a way that conflicts with applicable

decisions of this Court and of the Supreme Court of the United States, and has

decided an important question of state or federal law that has not been, but should be.

Settled by this Court. See TEX.R.APP.P. 66.3(b) and (c).

In particular, the court of appeals concluded that the reading of the Implied

Consent Law warnings to a DWI suspect is sufficient to establish actual consent to

a warrantless seizure under the Fourth Amendment. Additionally, the court of

appeals shifted the burden of proving voluntariness of consent to a warrantless

seizure protected by the Fourth Amendment from the State to the accused.

STATEMENT REGARDING ORAL ARGUMENT

Mr. Cook believes that oral argument will be helpful to the Court in resolving

the grounds for review because of the nature of the issues presented in the ground for

review.

STATEMENT OF THE CASE

This is an appeal from a conviction for driving while intoxicated. Clerk’s

Record (CR) 12. The grounds for review in this case involve matters raised by a

pretrial motion to suppress evidence in which Mr. Cook challenged the admissibility

of a breath specimen he provided to law enforcement following his arrest.

STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE

The court of appeals affirmed Mr. Cook’s conviction on 9 June 2015. Cook v.

State, No. 05-14-00483-CR, Tex.App. – Dallas, June 9, 2015, unpublished.1 A

1
A copy of that opinion is appended hereto as Appendix A.

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timely-filed motion for rehearing2 was denied on 18 August 2015.3

GROUNDS FOR REVIEW

1. The court of appeals erred by failing to examine the impact of
Implied Consent Law warnings on the accused and by concluding
that an accused’s “implied consent” is sufficient to satisfy the
Fourth Amendment’s requirement of consent.

2. The court of appeals improperly shifted the burden of proving the
voluntariness of consent to a warrantless seizure protected by the
Fourth Amendment from the State to the accused.

RELEVANT FACTS

Mr. Cook was arrested for driving while intoxicated following a traffic stop.

He was transported to the Richardson jail where the arresting officer read the

warnings contained in the Implied Consent Law.4 Reporter’s Record (RR) 10. In

particular, Mr. Cook was advised that a specimen of his breath or blood would be

requested for alcohol-content testing purposes, and that if he refused to provide the

requested specimen (1) his refusal could be used against him at his trial, and (2) his

driver’s license or driving privileges would be suspended.5 Following the reading

of those warnings Mr. Cook agreed to provide specimens of his breath. RR 12.

Mr. Cook challenged the voluntariness of his decision to provide the breath

2
The Petitioner filed his motion for rehearing on 20 July 2015 pursuant to an extension
granted by the court of appeals.
3
A copy of the order denying the motion for rehearing is appended to this petition as Appendix
B.
4
TEX.TRANSP.CODE ch. 724.
5
See State’s Exhibit No. 1, RR 26, which is a recording of the events that occurred prior to
and after Mr. Cook’s arrest, including the reading to Mr. Cook of the implied consent law warnings.

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specimens.6 The trial court denied the motion. Mr. Cook later pleaded guilty,

reserving his right to appeal from the denial of the motion. CR 11.

On appeal Mr. Cook argued that an agreement to provide the breath specimens

in response to the Implied Consent Law was a Fourth Amendment seizure, that the

record did not establish Mr. Cook voluntarily consented to provide the specimens of

his breath, had that the State had failed to sustain its burden of proving voluntariness

of Mr. Cook’s consent.7

THE COURT OF APPEALS’ DECISION

The court of appeals held that the arresting officer did not threaten, intimidate,

coerce, or use any type of force to secure Mr. Cook’s consent to provide the breath

specimens.8 Cook v. State, supra, slip op. 5. The court also held that there is no

evidence that the reading of the Implied Consent Law warnings had any impact on

Mr. Cook’s “decision to consent to providing the breath specimen.” Id. at 6. Based

on the foregoing, the court concluded that the totality of the circumstances amply

demonstrated that Mr. Cook voluntarily consented to provide the breath specimen.

Id. at 7.

6
See RR 12, where Mr. Cook objected to the officer’s characterization of Mr. Cook’s decision
to provide the breath specimens as “voluntary”; RR 21-23, where Mr. Cook argued that a decision
to provide a breath specimen is a matter of consent which requires evidence of voluntariness.
7
Appellant’s Brief 9-15; Appellant’s Supplemental and Reply Brief 3-9.
8
The court of appeals stated Mr. Cook did not argue that the arresting officer “threatened,
intimidated, coerced, or used any type of force to secure Mr. Cook’s consent to provide the breath
specimen.” Cook v. State, supra, slip op. 5. Mr. Cook’s briefs unquestionably raised issues that Mr.
Cook’s decision to provide specimens of his breath was the product of coercion based on the threat
to suspend Mr. Cook’s driver’s license and the threat to use his refusal against him as evidence. To
the extent, and only to the extent, the court of appeals was referring to physical coercion the
foregoing observation by the court of appeals is correct.

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 Mr. Cook filed a Motion for Rehearing in which he asserted the court failed to

address the merits of his argument that the State did not meet its burden under the

Fourth Amendment to show Mr. Cook voluntarily consented to provide the breath

specimens, and Mr. Cook argued the court erroneously concluded that “implied

consent,” i.e., an agreement to provide specimens under the Implied Consent Law,

does not satisfy the State’s burden of establishing Fourth Amendment “actual

consent.” Appellant’s Motion for Rehearing 3-5, Cook v. State, supra. The motion

was overruled without opinion or comment.

ARGUMENT

GROUND FOR REVIEW NO. 1

The court of appeals erred by failing to examine the impact of Implied
Consent Law warnings on the accused and by concluding that an
accused’s “implied consent” is sufficient to satisfy the Fourth
Amendment’s requirement of consent.

The taking of a specimen of blood or breath from a DWI suspect for the

purpose of alcohol-content testing is protected by the Fourth Amendment. Missouri

v. McNeely, ___ U.S. ___, 133 S.Ct. 1552, ___ L.Ed.2d (2013); Skinner v. Ry. Labor

Executives’ Assn., 489 U.S. 602, 616-17, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989).

Thus, when a person arrested for DWI is asked by a law enforcement official to

provide a specimen of breath or blood for alcohol-content testing purposes, that

person is being asked to consent to a seizure protected by the Fourth Amendment.

When the State relies on the consent exception to the Fourth Amendment’s

warrant requirement, the State must establish by clear and convincing evidence that

the consent was voluntary. Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S.Ct.

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2041, 36 L.Ed.2d 854 (1973); Fienen v. State, 390 S.W.3d 328, 333 (Tex. Crim. App.

2012); Weaver v. State, 349 S.W.3d 521, 526 Tex. Crim. App. 2011). Consent is not

voluntarily unless it is shown to have been freely given, and not the result of duress

or coercion, express or implied, physical or psychological. Schneckloth v.

Bistamonte, supra, 412 U.S. at 222-23. Consent must be positive and unequivocal.

Allridge v. State, 850 S.W.2d 471, 493 (Tex. Crim. App. 1991). Mere acquiescence

or submission to a police officer’s claim of right under color of law or fraudulent

representation cannot provide consent to a warrantless search or seizure. Bumper v.

North Carolina, 391 U.S. 543, 549, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968).

Voluntariness of consent is to be determined from the totality of circumstances

from the point of view of an objectively reasonable person. Florida v. Jimenez, 500

U.S. 248, 251, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991); Florida v. Royer, 460 U.S.

491, 497, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983); Fienen v. State, supra, 390 S.W.3d

at 333.

The court of appeals concluded that the reading of the Implied Consent Law

warnings to Mr. Cook satisfied the State’s burden of proving the voluntariness of Mr.

Cook’s consent to providing the specimens of his breath. Cook v. State, supra, slip

op. 7. The court did not consider the effect of the Implied Consent Law warnings on

Mr. Cook from his perspective. Thus, the court essentially held that Mr. Cook’s

“implied consent,” that is his agreement to provide breath specimens after being read

the Implied Consent Law warnings, satisfied the State’s burden of proving consent

under the Fourth Amendment. This conclusion is wrong for several reasons.

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 The court of appeals failed to consider the effect of the consequences contained

in the Implied Consent Law warnings. Consistent with the requirement of the

Implied Consent Law, Mr. Cook was advised that if he refused to provide the

requested specimens (1) his refusal may be admissible in a subsequent prosecution,

and (2) that his refusal would result in automatic suspension of a person’s license to

operate a motor vehicle. TEX.TRANSP.CODE § 724.015(1) and (2). Because

voluntariness of consent must be assessed from the point of view of an objectively

reasonable person, it is essential that a court consider the effect of the admonition of

those consequences in order to determine the voluntariness of consent. The court of

appeals failed to perform that analysis, relying instead on the conclusion that “implied

consent” under the Implied Consent Law equates to actual, voluntary consent as

required by the Fourth Amendment.

Admonishing an accused that he will lose his driver’s license if he refuses to

provide a specimen of breath unquestionably impacts a decision that person makes

with respect to providing a specimen. As stated in Garrity v. New Jersey, 385 U.S.

493, 497, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967), “[w]here the choice is ‘between the

rock and the whirlpool,’ duress is inherent in making the choice.” A choice of

whether to provide breath specimens or lose a driver’s license is “the antithesis of

[the] free choice” contemplated by the Fourth Amendment’s requirement of

voluntariness. Id. The question is not whether a choice was given and made; rather,

the issue is whether the choice was made under duress. Because driver’s licenses are

often essential in the pursuit of a person’s livelihood, the suspension of those licenses

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involves state action that adjudicates important interests of licensees. The threat to

suspend Mr. Cook’s driver’s license if he did not provide the requested specimens

was identical to the decision facing Mr. Garrity; surrender a constitutional right in

order to secure a state-conferred privilege. For the reasons stated in Garrity, the

constitutional dilemma confronting Mr. Cook requires an examination of the effect

of the threat to take Mr. Cook’s driver’s license under the principles announced in

Garrity.

Similarly, admonishing an accused that his refusal to consent to a warrantless

seizure of his breath if he refuses to provide a specimen of breath unquestionably

impacts any decision that person makes with respect to providing a specimen.

Citizens have the right to refuse to consent to requests by law enforcement officials

for warrantless seizures. See v. Seattle, 387 U.S. 541, 545-46, 87 S.Ct. 1737, 18

L.Ed.2d 943, (1967); Camara v. Municipal Court of the City and County of San

Francisco, 387 U.S. 523, 539, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967); see District of

Columbia v. Little, 339 U.S. 1, 6-8, 70 S.Ct. 468, 94 L.Ed.2d 599 (1950). A person’s

choice not to consent to a warrantless seizure cannot be used as substantive evidence

against that person without improperly penalizing the person for his exercise of his

Fourth Amendment rights. United States v. Runyon, 290 F.3d 223, 249 (5th Cir.

2002). As stated in Reeves v. State, 969 S.W.2d 471, 495-97 (Tex.App. – Waco 1998,

pet.ref’d), “[t]he invocation of constitutional rights such as assistance of counsel,

silence, or freedom from unreasonable searches may not be relied upon as evidence

of guilt. To permit the use of such evidence for purposes of incrimination would

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erode the protections guaranteed by both state and federal constitutions.”9 See also

Powell v. State, 660 S.W.2d 842, 845 (Tex.App. – El Paso 1983, no pet.). Moreover,

the probative value of such evidence is minimal inasmuch a person’s exercise of a

constitutional right may be nothing more than the person’s exercise of the right and

thus not have any probative value. Doyle v. Ohio, 426 U.S. 610, 617, 96 S.Ct. 2240,

49 L.Ed.2d 91 (1976); Reeves v. State, supra, 969 S.W.2d at 495.

“Implied consent” does not equate to Fourth Amendment consent. Implied

consent refers to the consent a person gives to provide a specimen of breath or blood

at the time a law enforcement officer invokes the Implied Consent Law. Consent

under the Fourth Amendment, on the other hand, refers to consent shown by the

totality of the circumstances to have been given voluntarily from the perspective of

a reasonably objective person. Fourth Amendment consent requires proof of more

than the mere fact that the accused provided “implied consent.”

The court of appeals failed to address whether Mr. Cook gave actual, Fourth

Amendment consent to the procuring and testing of his breath, ignored Mr. Cook’s

argument relating to the coercive effect of the Implied Consent Law warnings, and

relied instead on the notion that “implied consent” suffices to establish actual Fourth

Amendment consent.

9
The exercise of other constitutionally protected rights, such as the right to counsel and the
right to silence, may not be used as substantive evidence of guilt. See Doyle v. Ohio, 426 U.S. 610,
617, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976); Miranda v. Arizona, 384 U.S. 436, 467, 86 S.Ct. 1602,
16 L.Ed.2d 694 (1966).

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 GROUND FOR REVIEW NO. 2

The court of appeals improperly shifted the burden of proving the
voluntariness of consent to a warrantless seizure protected by the Fourth
Amendment from the State to the accused.

The burden is on the State to prove the existence of an exception to Fourth

Amendment requirement of a warrant. Coolidge v. New Hampshire, 403 U.S. 443,

455, 91 S.Ct. 2022, 29 L.Ed.2d 564 1971). In the context of consent to a warrantless

seizure, the State bears the burden off proving the consent was voluntary.

Schneckloth v. Bustamonte, supra, 412 U.S. at 222 (‘[w]hen a prosecutor seeks to rely

upon consent to justify the lawfulness of a search, he has the burden of proving that

the consent was, in fact, freely and voluntarily given”); see also Fienen v. State,

supra, 390 S.W.3d at 333; Weaver v. State, supra, 349 S.W.3d at 526.

The record in this case shows that the arresting officer read Mr. Cook the

Implied Consent Law warnings and that Mr. Cook thereafter agreed to provide the

requested breath specimens. No other evidence was adduced relating to the

voluntariness of Mr. Cook’s decision to provide the requested specimens.

While it is true that “the record in this case does not show . . . that [the arresting

officer] threatened, intimidated, coerced, or used any type of force to secure [Mr.

Cook’s] consent to provide the breath specimens,” Cook v. State, supra, slip op. at 5,

Mr. Cook was not obliged to produce evidence of involuntariness of consent. He is

entitled to rely on the contents of the Implied Consent Law warnings - that his refusal

to provide a specimen would be used against him in court and that his driver’s license

would be suspended - as the threat, intimidation and coercion upon which he based

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his decision to provide the specimens.

The State’s burden of proving that Mr. Cook voluntarily consented to provide

the breath specimens cannot be satisfied by proof of the mere fact that Mr. Cook

agreed to provide the specimens pursuant to the Implied Consent Law. Proof of

Fourth Amendment voluntary consent requires an analysis of the circumstances

surrounding the reading of the Implied Consent Law warnings, i.e., was the implied

consent a product of mere acquiescence or submission to a police officer’s claim of

right under color of law, and did the threats contained in the Implied Consent Law

warnings that if he refused to provide the specimens he would lose his driver’s license

and the refusal would be used against him as substantive evidence at his trial for

driving while intoxicated affect Mr. Cook’s decision to provide the specimens. The

reliance by the court of appeals on the lack of evidence to “show . . . that [the

arresting officer] threatened, intimidated, coerced, or used any type of force to secure

[Mr. Cook’s] consent to provide the breath specimens” clearly imposed a burden on

Mr. Cook - burden he was not required to bear. And, the conclusion by the court of

appeals that the mere proof Mr. Cook gave “implied consent” to provide the

specimens relieved the State of its constitutional burden to prove the voluntariness

of consent under the Fourth Amendment.

For the forgoing reasons the court of appeals improperly relieved the State of

its burden of establishing voluntariness of Mr. Cook’s consent to provide the

specimens, and it improperly shifted that burden to Mr. Cook.

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 PRAYER FOR RELIEF

Mr. Cook prays that this Court grant discretionary review to review the

decision of the court of appeals in this case with respect to that court’s conclusion

that the reading of the Implied Consent Law warnings suffice to establish Fourth

Amendment consent to a warrantless seizure, and conviction, and that court’s

shifting to Mr. Cook of the burden of proof relating to the voluntariness of consent.

Respectfully submitted,

/s/ Melvyn Carson Bruder

MELVYN CARSON BRUDER

TSBN 03241000
6440 North Central Expressway
516 Turley Law Center
Dallas, Texas 75206
214.987.3500
214.987.3518 FAX
melvyn@melvynbruderlaw.com

Counsel for the Petitioner

CERTIFICATE OF SERVICE

I certify that on 18 September 2015 a true and correct copy of the foregoing
Petitioner’s Petition for Discretionary Review was served upon counsel for the State
of Texas in this case and upon the State Prosecuting Attorney via electronic filing and
via first class United States mail, postage prepaid, in Dallas, Texas.

/s/ Melvyn Carson Bruder

MELVYN CARSON BRUDER

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 CERTIFICATE OF COMPLIANCE

I certify that this petition contains 3855 words based on the word count of the
Word Perfect X5 program used to prepare the petition.

/s/ Melvyn Carson Bruder

MELVYN CARSON BRUDER

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 APPENDIX A

OPINION OF THE COURT OF APPEALS IN COOK V. STATE

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 APPENDIX B

ORDER DENYING MOTION FOR REHEARING IN COOK V. STATE

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