ACCEPTED
03-14-00541-CR
4106716
THIRD COURT OF APPEALS
AUSTIN, TEXAS
2/11/2015 11:56:26 AM
JEFFREY D. KYLE
CLERK
No. 03~14-00541-CR
FILED IN
3rd COURT OF APPEALS
In the Third Court of Appeals AUSTIN, TEXAS
Austin, Texas 2/11/2015 11:56:26 AM
JEFFREY D. KYLE
Clerk
ROBERT TORRES,
Appellant,
v.
STATE OF TEXAS,
Appellee
On appeal from the 299th District Court,
Travis County, Texas
Trial Cause No. 01 DC-12-302414
ROBERT TORRES' BRIEF
JAMIE SPENCER
ATTORNEY FOR ROBERTTORRES
State Bar Number 90001952
812 San Antonio St., Suite 403
Austin, Texas 78701
Telephone: (512) 472-9909
Jamie@austindefense.com
IDENTITY OF PARTIES AND ATTORNEYS.·
1. Appellant:
Robert Torres
2. Appellant's Trial and Appellate Attorney:
Jamie Spencer
State Bar No. 90001952
812 San Antonio Street, Suite 403
Austin, TX 78701
(512) 472-9909
(512)472-9908 (fax)
3. State's Trial and Appellate Attorney:
Ms. Amber Platt
State Bar No. 24046639
509 W. 11th Street, Ste. 1. 100
Austin, TX 78701
(512) 854-9400
(512) 854-9695 (fax)
4. State's Appellate Attorney
Ms. Lisa C. McMinn
State Bar No. 13803300
509 W. 11th Street, Ste. 1.100
Austin, TX 78701
(512) 854-9400
(512) 854-9695 (fax)
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STATEMENT REGARDING ORAL ARGUMENT .
This case is fully controlled by the Court of Criminal Appeals decision
in State v. Villareal, 2014 WL 6734178 (Tex. Grim. App. 2014), which had
not been decided at the time of the pretrial hearing. This case presents a
pure question of law and the Appellant asks that the case be remanded to
the 2991h District Court for reconsideration in light' of Villareal. Or in the
alternative, as there are no questions of fact, Appellant does not ask for
oral argument because the issue may be fully and fairly decided on briefs.
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TABLE OF CONTENTS
IDENTITY OF PARTIES AND ATTORNEYS ........................................ 1
STATEMENT REGARDING ORAL ARGUMENT .................................. 2
TABLE OF CONTENTS .................................................................. 3
INDEX OF AUTHORITIES ............................................................... 4
ISSUE PRESENTED ....................................................................... 7
STATEMENT OF THE CASE ........................................................... 5
A. COURSE OF PROCEEDINGS AND
DISPOSITION IN THE COURT BELOW
B. GENERAL STATEMENT OF FACTS
SUMMARY OF ROBERT TORRES'S
ARGUMENT ..................................................................................8
ARGUMENT ................................................................................. 9
PRAYER .................................................................................... 11
CERTIFICATE OF COMPLIANCE .................................................... 12
CERTIFICATE OF SERVICE .......................................................... 12
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INDEX OF AUTHORITIES··
Constitutional Provisions and .Statutes:
Fourth Amendment of the US Constitution ........................................... 8
Tex. Transportation Code Ann Chapter 724 .............................. 6, 7, 8, 9
Cases
State v. Villareal, 2014 WL 6734178
(Tex. Crim. App. 2014) .................................................... 2, 8, 10
Balentine v. State, 71 S.W.3d 763, 768
(Tex. Crim. App. 2002) ............................................................ 9
Carmouche v. State, 10 S.W.3d 323, 327
(Tex. Crim. App. 2000) .............................................................9
Missouri v McNeely, 133 S. Ct. 1552 (2013) ....................................... 10
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STATEMENT OF THE CASE
A. Course of Proceedings and Disposition in the Court Below
Appellant was charged in a one count indictment with felony driving
while intoxicated, a third degree felony. Appellant filed a motion to
suppress. The trial court held an evidentiary hearing on the motion and
denied the motion. Appellant then entered into a negotiated plea bargain
agreement with the State and preserved his right to appeal.
B. General Statement of Facts
This case involves a traffic stop where Appellant was arrested for
driving while intoxicated. After his arrest, he was taken to the Travis
County Jail, where an involuntary blood draw was performed. There are no
significant factual disputes in this case. After his arrest the Appellant was
read the statutory warning and asked to give a specimen of his breath or
blood, which he refused. (RR vol.4, pp. 17-18) A criminal history check
revealed that Appellant had two prior convictions for DWI. (RR vol. 4, p.
34) The arresting officer did not seek an application for a blood warrant in
this case. (RR vol. 4, p. 23) The arresting officer was very familiar with the
procedures for procuring a blood draw warrant in a DWI case. (RR vol. 4,
p. 27) The officer testified that he obtained the involuntary blood draw
5
solely under the authority of the Transportation Code, Section 724; · (RR
vol. 4, pp 34-35)
6
ISSUE PRESENTED ·
Issue One: Whether the Trial Court erred in refusing to grant the motion to
suppress and in holding that the mandatory blood draw provisions of the
Texas Transportation Code are a constitutionally valid alternative to the
warrant requirement.
7
SUMMARY OF ROBERT TORRES'S ARGUMENT
At the time of the suppression hearing the trial court did not have the
benefit of the ruling in State v. Villareal, 2014 WL 6734178 (Tex. Grim.
App. 2014). In Villareal, the court held that the warrantless and
non consensual mandatory blood draw provisions of Texas Transportation
Code chapter 724 do not meet any exception to the Fourth Amendment's
warrant requirement. Since there was a finding of no exigent
circumstances in the instant case, and no other exceptions to the warrant
requirement would apply, the motion to suppress should have been
granted.
8
ARGUMENT
A trial court's ruling on a motion to suppress is reviewed under an
abuse of discretion standard; absent an abuse of discretion, the trial court's
findings will not be disturbed. Balentine v. State, 71 S.W.3d 763, 768 (Tex.
Crim. App. 2002). Almost total deference is given to the trial court's
determination of historical facts, while a de novo review is conducted of the,
trial court's application of the law to those facts. See Carmouche v. State,
10 S.W.3d 323, 327 (Tex. Crim. App. 2000).
The trial court ruled that there were no exigent circumstances in this
case, which might have provided an alternative basis for drawing
Appellant's blood without a warrant. (RR Vol. 3, p. 11) There is ample
evidence in the record to support the trial court's finding of no exigent
circumstances. Since the determination of "no exigent circumstances" is
based on historical facts that would be reviewed only under an abuse of
discretion standard.
However, a de novo review should be conducted of the trial court's
application of the law regarding the mandatory blood draw provisions of
Texas Transportation Code Chapter 724 and the fact that there were no
exigent circumstances.
9
The Villareal case is directly on point (although -again- it was not
available to the trial court at the time of the ruling). Villarreal follows the
Supreme Court's ruling in Missouri v McNeely, 133 S. Ct. 1552 (2013).
The Villareal case lists in exhaustive detail all the possible state's
argument's for allowing a Chapter 724 exception to the warrant
requirement, and rejects each of them in turn:
(1 )The blood draw was not valid under the consent exception.
(2) It was not valid under the automobile exception.
(3) It was not valid under a special needs exception.
(4) It was not valid as a search incident to arrest.
(5) It was not reasonable under a Fourth Amendment balancing test.
Given the trial court's finding of "no exigent circumstances", the
McNeely and Villareal decisions show that suppression was correct in the
instant case. Absent exigent circumstances, and absent any other finding
which would create a valid exception to the warrant requirement, the
motion to suppress should have been granted.
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PRAYER
Robert Torres asks this Court to overturn the trial court's denial of the
Motion To Suppress as it relates to the blood draw and the results of the
blood draw, and to grant the defense Motion to Suppress as it relates to
such.
Respectfully submitted,
ate
8 an Antonio Street, Suite 403
Austin, Texas 78701
Telephone: (512) 472-9909
jamie@austindefense.com
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CERTIFICATE OF COMPLIANCE
Relying on Microsoft Word's word-count function, I certify that
this document complies with the word-count limitations of Tex. R. App. P.
9.4. The document contains 1272 words.
CERTIFICATE OF SERVICE
I certify that I sent a complete and legible copy of this Robert Torres's
Brief via U.S. postage-prepaid mail, on or before February 11, 2015 to the
following attorneys of record:
Travis County District Attorney's Office
Rosemary Lehmberg, Travis County District Attorney
Lisa McMinn, Assistant District Attorney
509 W. 11th Street, Ste. 1.100
Austin, TX 78701
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