Jose Angel Flores Jr. v. State

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ELECTRONIC RECORD COA # 04-13-00754-CR OFFENSE: DWI JOSE ANGEL FLORES, JR. STYLE: V. THE STATE OF TEXAS COUNTY: GUADALUPE REVERSED AND COA DISPOSITION: REMANDED TRIAL COURT: COUNTY COURT AT LAW #2 DATE: 12/17/14 Publish: NO TC CASE #: CCL-10-0869 IN THE COURT OF CRIMINAL APPEALS ELECTRONIC RECORD JOSE ANGEL FLORES, JR. V. STYLE: THE STATE OF TEXAS CCA #: ____________________________ Petition CCA Disposition: ____________________ FOR DISCRETIONARY REVIEW IN CCA IS: DATE: ____________________________ ___________________________________ JUDGE: ___________________________ DATE: _____________________________ SIGNED: ___________ PC: ________ JUDGE: ___________________________ PUBLISH: __________ DNP: _______ --------------------------- ______________________________ MOTION FOR REHEARING IN CCA IS: ____________________ JUDGE: __________________________________ 4th Court of Appeals Docket Sheet Case Number: 04-13-00754-CR Date Filed: 10/29/2013 8:41AM Style: Criminal - Appellant Jose Angel Flores Jr. v.Criminal - State of Texas The State of Texas False False True Case Priority: Regular Original Proceeding: No Case Description: DWI Punishment: 90 DAYS JAIL & $1,000 FINE. BondAmount: 1500.00 In Jail: False Trial Court Information County Court Name Case # Judge Court Reporter Guadalupe County Court At CCL-10-0869 Honorable Frank Follis Sharron, Stacey Law No 2 Parties and Attorneys Party Party Name Remarks Counsel Code Person Name Date On Date Off Criminal - Flores, Jr., Jose Pro Se Jose Angel Flores, Jr. 10/29/2013 Appellant Angel Appointed attorney Susan Lee Schoon 11/14/2013 Criminal - State of The State of Texas District attorney Christopher M. Eaton 07/01/2014 Texas District attorney Heather McMinn 10/29/2013 07/01/2014 Interested Entities Entity Name Interested Notice Date On Date Off Entity Type Eaton, DT ATTY Yes 07/01/2014 Christopher M. 9:06AM Flores, Jr., Jose PRO SE No 10/29/2013 Angel 4:21PM Follis, Honorable TC JDG No 10/29/2013 Frank 8:54AM Kiel, Teresa CO CLK No 10/29/2013 4:05PM McMinn, Heather DT ATTY Yes 10/29/2013 07/01/20 4:17PM 14 Schoon, , Susan AP ATTY Yes 11/14/2013 Lee 12:21PM Sharron, Stacey RPT No 10/29/2013 8:55AM Events and Opinions Event Date Stage Event Event Disposition Grouping Order Submis Description Type sion 03/16/2015 CRM APP NOTICE RECD 02/17/2015 CRM APP PDR FLD/CCA SPA 01/22/2015 FILING MT EXT PDR SPA GRANT DISP 12/17/2014 FILING MEM OPINION REVREM ISSD Opinion Type Author Original Justice Karen Memorandum Angelini 10/07/2014 FILING SUBMITTED Brief 08/27/2014 FILING ORDER ENTERED Report Prepared By: jquintero, on 3/23/2015 1:05:53 PM 1 of 4 4th Court of Appeals Docket Sheet Case Number: 04-13-00754-CR Date Filed: 10/29/2013 8:41AM Style: Criminal - Appellant Jose Angel Flores Jr. v.Criminal - State of Texas The State of Texas False False True Events and Opinions Event Date Stage Event Event Disposition Grouping Order Submis Description Type sion 08/27/2014 FILING SUBMISSION/ Brief OA DENIED 07/31/2014 FILING AT ISSUE 07/30/2014 FILING EBRIEF FLD STA 2:39PM NO 07/02/2014 FILING MT EXT BRIEF STA GRANT DISP 07/01/2014 FILING MT EXT BRIEF STA 11:27AM FLD 06/02/2014 FILING EBRIEF FLD APP 10:01PM YES 05/28/2014 FILING MT EXT BRIEF APP GRANT DISP 05/28/2014 FILING ORDER ENTERED 05/27/2014 FILING MT EXT BRIEF APP 6:19PM FLD 05/22/2014 FILING RECORD OUT APE 04/24/2014 FILING MT EXT BRIEF APP GRANT DISP 04/24/2014 FILING ORDER ENTERED 04/21/2014 FILING MT EXT BRIEF APP 12:49PM FLD 03/24/2014 FILING MT EXT BRIEF APP 10:55AM FLD 03/24/2014 FILING MT EXT BRIEF APP GRANT DISP 02/20/2014 FILING ERPT RPT 2:29PM RECORD FLD 02/04/2014 FILING PRESCREENE D 02/03/2014 FILING ECLK CO CLK 10:54AM RECORD FLD 01/08/2014 FILING DS FLD APP 4:34PM 01/07/2014 FILING INTERNAL APP MEMO 11/20/2013 FILING MT NEW APP TRIAL FLD 11/14/2013 FILING LTR FLD TC JDG 11/13/2013 FILING RESP FLD TC JDG 11/05/2013 FILING ORDER ENTERED 10/30/2013 FILING TELEPHONE CO CLK INQUIRY 10/30/2013 FILING TELEPHONE APP INQUIRY 10/29/2013 FILING NOA FLD/COA APP 10/29/2013 FILING CASE BEGAN Report Prepared By: jquintero, on 3/23/2015 1:05:53 PM 2 of 4 4th Court of Appeals Docket Sheet Case Number: 04-13-00754-CR Date Filed: 10/29/2013 8:41AM Style: Criminal - Appellant Jose Angel Flores Jr. v.Criminal - State of Texas The State of Texas False False True Events and Opinions Event Date Stage Event Event Disposition Grouping Order Submis Description Type sion 10/25/2013 FILING NOA FLD/TC APP 10/24/2013 FILING SENTENCE IMPOSED Document Summary Stage Location File Date Event File Description Index Volume Page FILING Event 12/17/2014 MEM OPINION JUDGMENT 12/17/14 ISSD REVREM FILING Opinion 12/17/2014 MEM OPINION OPINION 12/17/14 ISSD REVREM FILING Event 11/20/2013 MT NEW TRIAL MOTION FLD APP FILING Event 11/14/2013 LTR FLD ORDER TC JDG FILING Event 11/13/2013 RESP FLD RESPONSE TC JDG FILING Event 11/05/2013 ORDER ORDER ENTERED FILING Event 10/29/2013 NOA FLD/COA CERTIFICATE OF NOTICE OF APPEAL APP FILING Event 10/29/2013 NOA FLD/COA JUDGMENT APP FILING Event 10/29/2013 NOA FLD/COA MOTION APP FILING Event 10/29/2013 NOA FLD/COA NOTICE OF APPEAL APP FILING Event 10/29/2013 NOA FLD/COA TRIAL COURT CERTIFICATION APP FILING Event 08/27/2014 ORDER ORDER DENYING 8.27.14 ENTERED FILING Event 08/27/2014 SUBMISSION/OA COVER LTR DENYING 8.27.14 DENIED FILING Event 07/30/2014 EBRIEF FLD NO BRIEF 2:39PM STA FILING Event 07/02/2014 MT EXT BRIEF ORDER DISP STA GRANT FILING Event 07/01/2014 MT EXT BRIEF MOTION 11:27AM FLD STA FILING Event 06/02/2014 EBRIEF FLD YES BRIEF 10:01PM APP FILING Event 05/28/2014 ORDER ORDER ENTERED FILING Event 05/27/2014 MT EXT BRIEF MOTION 6:19PM FLD APP FILING Event 05/22/2014 RECORD OUT REQUEST APE FILING Event 04/24/2014 ORDER ORDER ENTERED Report Prepared By: jquintero, on 3/23/2015 1:05:53 PM 3 of 4 4th Court of Appeals Docket Sheet Case Number: 04-13-00754-CR Date Filed: 10/29/2013 8:41AM Style: Criminal - Appellant Jose Angel Flores Jr. v.Criminal - State of Texas The State of Texas False False True Document Summary Stage Location File Date Event File Description Index Volume Page FILING Event 04/21/2014 MT EXT BRIEF MOTION 12:49PM FLD APP FILING Event 03/24/2014 MT EXT BRIEF MOTION 10:55AM FLD APP FILING Event 03/24/2014 MT EXT BRIEF ORDER DISP APP GRANT CRM APP Event 03/16/2015 NOTICE RECD Crm App Notice 3-16-15 FILING Event 02/20/2014 ERPT RECORD Vol 1 Master Index State vs. Flores, Jr. 2:29PM FLD RPT FILING Event 02/20/2014 ERPT RECORD Vol 2 Motions State vs. Flores, Jr. 2:29PM FLD RPT FILING Event 02/20/2014 ERPT RECORD Vol 3 Motions State vs. Flores, Jr. 2:29PM FLD RPT FILING Event 02/20/2014 ERPT RECORD Vol 4 Plea State vs. Flores, Jr. 2:29PM FLD RPT FILING Event 02/20/2014 ERPT RECORD Vol 5 Punishment State vs. Flores, Jr. 2:29PM FLD RPT CRM APP Event 02/17/2015 PDR FLD/CCA Crm App Notice 2-17-15 SPA FILING Event 02/03/2014 ECLK RECORD TRIAL COURT CLERK'S APPLEEATE 10:54AM FLD RECORD, VOLUME 1 CO CLK FILING Event 01/22/2015 MT EXT PDR Crm App Notice 1-22-15 DISP SPA GRANT FILING Event 01/08/2014 DS FLD DOCKETING STATEMENT 4:34PM APP FILING Event 01/07/2014 INTERNAL MEMO COURTESY DOCKETING STATEMENT APP Calendars Stage Set Date Calendar Name Reason Set FILING 10/29/2013 STAT CENTRAL STAFF REVIEW CRM APP 03/17/2015 STAT RECORD SEND CRM APP 02/17/2015 APPL CT REVIEW Report Prepared By: jquintero, on 3/23/2015 1:05:53 PM 4 of 4 Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-13-00754-CR Jose Angel FLORES Jr., Appellant v. The STATE of Texas, Appellee From the County Court at Law No. 2, Guadalupe County, Texas Trial Court No. CCL-10-0869 Honorable Frank Follis, Judge Presiding Opinion by: Karen Angelini, Justice Sitting: Catherine Stone, Chief Justice Karen Angelini, Justice Rebeca C. Martinez, Justice Delivered and Filed: December 17, 2014 REVERSED AND REMANDED Jose Angel Flores Jr. appeals the trial court’s denial of his motion to suppress blood evidence, arguing his motion should have been granted pursuant to the Supreme Court’s recent decision in Missouri v. McNeely, 133 S. Ct. 1552 (2013). Because we agree that Flores’s motion to suppress should have been granted, we reverse the judgment of the trial court and remand the cause for a new trial. 04-13-00754-CR BACKGROUND On November 3, 2009, at about 8:00 p.m., Flores was stopped for a traffic violation by Deputy Robert Williams and asked to provide a breath specimen. Flores refused. He was then arrested and placed inside Deputy Williams’s patrol vehicle. While en route to the jail, Deputy Williams called dispatch and asked that a background check be run on Flores. Deputy Williams was informed by dispatch that Flores had two prior convictions for DWI. Deputy Williams then took Flores to the medical center so that a blood sample could be taken from Flores pursuant to section 724.012(b)(3)(B) of the Texas Transportation Code. Deputy Williams did not obtain a warrant for the blood draw. It was later determined that Flores did not, in fact, have two prior convictions for DWI. This is the second time we have heard an appeal from a decision in the underlying cause. In the first appeal, State v. Flores, 392 S.W.3d 229 (Tex. App.—San Antonio 2012, pet. ref’d), the State appealed the trial court’s interlocutory order granting Flores’s first motion to suppress, which had been based on a statutory violation of section 724.012(b)(3)(B). We reversed the trial court’s order, holding that Flores had not met his burden of making a prima facie showing of a statutory violation under section 724.012(b)(3)(B). On remand, Flores filed a second motion to suppress based on the Supreme Court’s recent decision in McNeely, arguing that the mandatory blood draw violated his rights under the Fourth Amendment. On July 17, 2013, at the hearing on Flores’s second motion to suppress, the trial court took judicial notice of the testimony that was provided in the first suppression hearing. Deputy Williams then provided additional testimony. Deputy Williams testified that the normal business hours for the Guadalupe County offices were 8:00 a.m. to 5:00 p.m. and that judges are not readily available after hours. According to Deputy Williams, there must be “special circumstances” before an officer can attempt to locate a judge outside of normal business hours, and “to do that, [the officer] ha[s] -2- 04-13-00754-CR to go up [his] chain of command.” Deputy Williams testified that at that time, he would need to contact and notify his supervisor, Sergeant Strauss, that he needed a warrant. Deputy Williams testified that he did not attempt to obtain a warrant to authorize the blood draw on Flores. Deputy Williams explained that he did not believe he needed a warrant under section 724.012(b)(3)(B). On cross-examination, Deputy Williams confirmed that his department did, in fact, have procedures for obtaining a warrant after normal business hours. After hearing all the evidence presented, the trial court denied Flores’s second motion to suppress. Flores then pled guilty and now appeals the denial of his pre-trial motion to suppress. DISCUSSION Flores argues that the warrantless blood draw performed on him violated his rights under the Fourth Amendment to the Constitution. For support, Flores relies on the Supreme Court’s decision in McNeely and this court’s decision in Weems v. State, 434 S.W.3d 655 (Tex. App.— San Antonio 2014, pet. granted). 1 In Weems, 434 S.W.3d at 665, we analyzed McNeely and concluded that section 724.12(b)(3)(B) does not constitute a valid exception to the Fourth Amendment’s warrant requirement. The State recognizes the applicability of our holding in Weems, but argues that we should reconsider our holding in Weems. We need not do so, however, as the Texas Court of Criminal Appeals recently held in State v. Villarreal, No. PD-0306-14, 2014 WL 6734178, at *20 (Tex. Crim. App. Nov. 26, 2014), that “the provisions in the Transportation Code do not, taken by themselves, form a constitutionally valid alternative to the Fourth Amendment warrant requirement.” The court of criminal appeals explained that “the Supreme Court’s holding in McNeely makes clear that drawing the blood of an individual suspected of DWI falls under the category of cases holding that ‘a warrantless search of a person is reasonable only 1 When the trial court held its hearing on Flores’s second suppression motion, it did not have the benefit of this court’s decision in Weems. -3- 04-13-00754-CR if it falls within a recognized exception’ to the warrant requirement.” Villarreal, 2014 WL 6734178, at *20 (quoting McNeely, 133 S. Ct. at 1558) (emphasis added). The court of criminal appeals emphasized that the McNeely Court “explained that such an intrusion implicates an individual’s ‘most personal and deep-rooted expectations of privacy.’” Villarreal, 2014 WL 6734178, at *20 (quoting McNeely, 133 S. Ct. at 1558). According to the court of criminal appeals, “[t]hese principles from McNeely—the recognition of the substantial privacy interests at stake and the applicability of the traditional Fourth Amendment framework that requires either a warrant or an applicable exception—apply with equal force to this case.” Villarreal, 2014 WL 6734178, at *20. Thus, the court of criminal appeals “reject[ed] the State’s assertion that a warrantless, nonconsensual blood draw conducted pursuant to those provisions [of the Transportation Code] can fall under one of the established exceptions to the warrant requirement.” Id. The court of criminal appeals further “reject[ed] the State’s suggestion that such a search may be upheld under a general Fourth Amendment balancing test.” Id. Alternatively, the State argues that a recognized exception to the Fourth Amendment’s warrant requirement applies in this case—exigent circumstances. The State points to the testimony of Deputy Williams that the traffic stop occurred after normal business hours and that before requesting a warrant, Deputy Williams would have to go up his chain of command, which began with Sergeant Strauss. We disagree with the State that this record supports exigent circumstances. Exigent circumstances “applies when the exigencies of the situation make the needs of law enforcement so compelling that a warrantless search is objectively reasonable under the Fourth Amendment.” McNeely, 133 S. Ct. at 1558. The State had the burden below to prove the warrantless search was reasonable pursuant to the exigent circumstances exception under the totality of the circumstances. See Amador v. State, 275 S.W.3d 872 (Tex. Crim. App. 2009); Gutierrez v. State, 221 S.W.3d 680, 686 (Tex. Crim. App. 2007). -4- 04-13-00754-CR The only evidence presented at the hearing was from Deputy Williams, who confirmed that his department did, in fact, have procedures for obtaining a warrant after normal business hours. His knowledge on these procedures was limited. Deputy Williams knew that he had to contact his supervisor, but did not know what occurred after he did so. Deputy Williams testified he made no attempt to secure such a warrant by following these procedures. Thus, this record is limited in its testimony regarding “procedures in place for obtaining a warrant or the availability of a magistrate judge.” McNeely, 133 S. Ct. at 1568. It also does not reflect “the practical problems of obtaining a warrant within a timeframe that still preserves the opportunity to obtain reliable evidence.” Id. We therefore conclude that this record does not show that under the totality of the circumstances, the warrantless blood draw was justified by the exigent circumstances exception to the Fourth Amendment’s warrant requirement. See Weems, 434 S.W.3d at 666. As the State did not show that the warrantless blood draw was reasonable under the Fourth Amendment, Flores’s second motion to suppress should have been granted. After the trial court denied Flores’s second motion to suppress, he decided to plead guilty. We cannot determine beyond a reasonable doubt that the trial court’s failure to grant his motion to suppress did not contribute in some measure to the State’s leverage in obtaining Flores’s guilty plea and thus to Flores’s conviction. See TEX. R. APP. P. 44.2(a); Kennedy v. State, 338 S.W.3d 84, 102-03 (Tex. App.—Austin 2011, no pet.). Finally, the State argues that even if we hold that Flores’s rights under the Fourth Amendment were violated by the warrantless, nonconsensual blood draw, the Texas exclusionary rule as enunciated in article 38.23(a) should not apply. According to the State, the blood draw was not taken “in violation” of law. See TEX. CODE OF CRIM. PROC. ANN. art. 38.23(a) (West 2005) (“No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of -5- 04-13-00754-CR America, shall be admitted in evidence against the accused on the trial of any criminal case.”). The State argues that “it is indisputable that the state of the law on November 3, 2009, was that warrantless blood draws made pursuant to section 724.012(b)(3)(B) were permissible and was not seized in violation of the law as it was understood on that day.” We disagree with the State. Section 724.012(b)(3)(B) does not explicitly authorize a warrantless search. Weems, 434 S.W.3d at 666; see also McNeil v. State, 443 S.W.3d 295, 303 (Tex. App.—San Antonio 2014, pet. filed). It “does not address or purport to dispense with the Fourth Amendment’s warrant requirement for blood draws.” Weems, 434 S.W.3d at 666 (citation omitted). In responding “to the contention that the Legislature has clearly indicated its desire to create a new exception to the warrant requirement,” the Texas Court of Criminal Appeals observed in Villarreal, 2014 WL 6734178, at *19, that the statutory language contained within the provisions in the Texas Transportation Code “is silent as to whether a law-enforcement officer conducting a mandatory, nonconsensual search of a DWI suspect’s blood is required to first seek a warrant.” Further, warrantless seizures have always been impermissible under the Fourth Amendment unless founded on a recognized exception. See United States v. Robinson, 414 U.S. 518, 224 (1973). In Villarreal, 2014 WL 6734178, at *19, the court of criminal appeals emphasized that the Texas Legislature “may not restrict guaranteed rights set out in constitutional provisions.” According to the court of criminal appeals, “[t]o the extent the mandatory-blood-draw statute may be interpreted as authorizing a warrantless search that would violate a defendant’s rights under the Fourth Amendment, it cannot do so.” Id. The State also argues the Texas exclusionary rule and federal exclusionary rule should not apply because the officer relied on section 724.012(b)(3)(B) in good faith. We rejected this argument in Weems and in subsequent cases. See Weems, 434 S.W.3d at 666-67; see also McNeil, 443 S.W.3d at 303; Fitzgerald v. State, No. 04-13-00662-CR, 2014 WL 3747270, at *2 (Tex. App.—San Antonio July 30, 2014, pet. filed). -6- 04-13-00754-CR CONCLUSION Because the warrantless blood draw violated Flores’s rights under the Fourth Amendment, his second motion to suppress should have been granted. We thus reverse the judgment of the trial court and remand for a new trial. Karen Angelini, Justice Do not publish -7- Fourth Court of Appeals San Antonio, Texas JUDGMENT No. 04-13-00754-CR Jose Angel FLORES Jr., Appellant v. The STATE of Texas, Appellee From the County Court at Law No. 2, Guadalupe County, Texas Trial Court No. CCL-10-0869 Honorable Frank Follis, Judge Presiding BEFORE CHIEF JUSTICE STONE, JUSTICE ANGELINI, AND JUSTICE MARTINEZ In accordance with this court’s opinion of this date, the judgment of the trial court is REVERSED and this cause is REMANDED to the trial court for a new trial. SIGNED December 17, 2014. _____________________________ Karen Angelini, Justice 1 1 REPORTER'S RECORD 2 VOLUME 1 OF 5 VOLUMES 3 TRIAL COURT CAUSE NO. CCL-10-0869 4 COURT OF APPEALS NO. 04-13-00754-CR 5 ) 6 THE STATE OF TEXAS, ) IN THE COUNTY COURT ) 7 ) Plaintiffs ) 8 ) VS. ) AT LAW NO. 2 9 ) ) 10 JOSE ANGEL FLORES, JR. ) ) 11 ) ) 12 Defendants ) GUADALUPE COUNTY, TEXAS 13 14 ------------------------------ 15 MASTER INDEX 16 ------------------------------ 17 18 On the 6th day of April, 2011; 17th day of July, 19 2013; 23rd day of September, 2013; and 24th day of 20 October, 2013, the following proceedings came on to be 21 heard in the above-entitled and numbered cause before 22 the Honorable Frank Follis, Judge presiding, held in 23 Seguin, Guadalupe County, Texas. 24 25 Proceedings reported by machine shorthand. County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 2 1 A P P E A R A N C E S 2 3 FOR THE STATE: 4 MR. JONATHAN MICHELL SBOT NO. 24058610 5 ASSISTANT COUNTY ATTORNEY 211 W. COURT STREET 6 SEGUIN, TEXAS 78155 (830) 303-6130 7 AND 8 MR. JOE BUITRON 9 SBOT NO. 24053117 ASSISTANT COUNTY ATTORNEY 10 211 W. COURT STREET SEGUIN, TEXAS 78155 11 (830) 303-6130 12 13 FOR THE DEFENDANT: 14 MR. W. DAVID FRIESENHAHN SBOT NO. 07476350 15 LAW OFFICES OF W. DAVID FRIESENHAHN 314 N. AUSTIN STREET 16 SEGUIN, TEXAS 78155 (830) 372-2722 17 18 19 20 21 22 23 24 25 County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 3 1 MASTER CHRONOLOGICAL INDEX 2 VOLUME 1 (MASTER INDEX) 3 Page Vol. 4 April 6, 2011 5 July 17, 2013 6 September 23, 2013 7 October 24, 2013 8 9 Court Reporter's Certificate............ 6 1 10 11 VOLUME 2 (MOTIONS) 12 Page Vol. 13 APRIL 6, 2011 14 Announcements........................... 4 2 15 Opening Statement by Mr. Michell........ 4 2 Opening Statement by Mr. Friesenhahn.... 4 2 16 17 STATE'S WITNESSES Direct Cross Voir Dire Page Vol. 18 Deputy Robert Williams 5,23 19,24 2 19 State rests............................ 24 2 20 DEFENDANT'S WITNESSES Direct Cross Voir Dire Page Vol. 21 None 22 Defendant rests........................ 24 2 23 Both Sides close....................... 24 2 24 Closing Arguments by Mr. Friesenhahn... 26 2 Closing Arguments by Mr. Michell....... 26 2 25 County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 4 1 Verdict................................ 28 2 2 Adjournment............................ 28 2 3 Court Reporter's Certificate........... 29 2 4 VOLUME 3 5 (MOTIONS) 6 JULY 17, 2013 7 Announcements........................... 4 3 8 Opening Statement by Mr. Buitron........ 4 3 Opening Statement by Mr. Friesenhahn.... 4 3 9 10 STATE'S WITNESSES Direct Cross Voir Dire Page Vol. 11 Deputy Robert Williams 5 8 3 12 State rests............................ 9 3 13 DEFENDANT'S WITNESSES Direct Cross Voir Dire Page Vol. 14 None 15 Defendant rests........................ 9 3 16 Both Sides close....................... 9 3 17 Closing Arguments by Mr. Friesenhahn... 9 3 Closing Arguments by Mr. Buitron....... 10 3 18 Verdict................................ 13 3 19 Adjournment............................ 13 3 20 Court Reporter's Certificate........... 14 3 21 22 VOLUME 4 (PLEA) 23 Page Vol. 24 September 23, 2013 25 Court Reporter's Certificate........... 6 4 County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 5 1 VOLUME 5 (PUNISHMENT) 2 Page Vol. 3 OCTOBER 24, 2013 4 Court Reporter's Certificate........... 7 5 5 6 CHRONOLOGICAL WITNESS INDEX 7 Direct Cross Page Vol. 8 DEPUTY ROBERT WILLIAMS 5,23 19,24 2 9 DEPUTY ROBERT WILLIAMS 5 8 3 10 ALPHABETICAL WITNESS INDEX 11 12 Direct Cross Page Vol. 13 DEPUTY ROBERT WILLIAMS 5,23 19,24 2 14 DEPUTY ROBERT WILLIAMS 5 8 3 15 16 17 18 19 20 21 22 23 24 25 County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 6 1 REPORTER'S CERTIFICATE 2 THE STATE OF TEXAS ) COUNTY OF GUADALUPE ) 3 4 I, Stacey B. Sharron, Official Court Reporter in and 5 for the County Court at Law No. 2 of Guadalupe County, 6 State of Texas, do hereby certify that the above and 7 foregoing contains a true and correct transcription of 8 all portions of evidence and other proceedings requested 9 in writing by counsel for the parties to be included in 10 this volume of the Reporter's Record, in the 11 above-styled and numbered cause, all of which occurred 12 in open court or in chambers and were reported by me. 13 I further certify that this Reporter's Record of the 14 proceedings truly and correctly reflects the exhibits, 15 if any, admitted by the respective parties. 16 I further certify that the total cost for the 17 preparation of this Reporter's Record is $395.92 and was 18 paid by Guadalupe County. 19 WITNESS MY OFFICIAL HAND this 20th day of February, 20 2014. 21 22 ___________________________ Stacey B. Sharron, Texas CSR 7743 23 Expiration Date: 12/31/2015 Official Court Reporter 24 County Court at Law No. 2 Guadalupe County, Texas 25 Seguin, Texas 78155 County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 1 1 REPORTER'S RECORD 2 VOLUME 2 OF 5 VOLUMES 3 TRIAL COURT CAUSE NO. CCL-10-0869 4 COURT OF APPEALS NO. 04-13-00754-CR 5 ) 6 THE STATE OF TEXAS, ) IN THE COUNTY COURT ) 7 ) Plaintiff ) 8 ) VS. ) AT LAW NO. 2 9 ) ) 10 JOSE ANGEL FLORES, JR. ) ) 11 ) ) 12 Defendant ) GUADALUPE COUNTY, TEXAS 13 14 15 ------------------------------ 16 MOTIONS 17 ------------------------------ 18 19 On the 6th day of April, 2011, the following 20 proceedings came on to be heard in the above-entitled 21 and numbered cause before the Honorable Frank Follis, 22 Judge presiding, held in Seguin, Guadalupe County, 23 Texas; 24 25 Proceedings reported by machine shorthand. County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 2 1 A P P E A R A N C E S 2 3 FOR THE STATE: 4 MR. JONATHAN MICHELL SBOT NO. 24058610 5 ASSISTANT COUNTY ATTORNEY 211 W. COURT STREET 6 SEGUIN, TEXAS 78155 (830) 303-6130 7 8 9 FOR THE DEFENDANT: 10 MR. W. DAVID FRIESENHAHN SBOT NO. 07476350 11 LAW OFFICES OF W. DAVID FRIESENHAHN 314 N. AUSTIN STREET 12 SEGUIN, TEXAS 78155 (830) 372-2722 13 14 15 16 17 18 19 20 21 22 23 24 25 County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 3 1 I N D E X 2 VOLUME 1 3 (MOTIONS) 4 5 Page Vol. 6 APRIL 6, 2011 7 Announcements........................... 4 2 8 Opening Statement by Mr. Michell........ 4 2 Opening Statement by Mr. Friesenhahn.... 4 2 9 10 STATE'S WITNESSES Direct Cross Voir Dire Page Vol. 11 Deputy Robert Williams 5,23 19,24 2 12 State rests............................ 24 2 13 DEFENDANT'S WITNESSES Direct Cross Voir Dire Page Vol. 14 None 15 Defendant rests........................ 24 2 16 Both Sides close....................... 24 2 17 Closing Arguments by Mr. Friesenhahn... 26 2 Closing Arguments by Mr. Michell....... 26 2 18 19 Verdict................................ 28 2 20 Adjournment............................ 28 2 21 Court Reporter's Certificate........... 29 2 22 23 24 25 County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 4 1 THE COURT: Is it Jose Angel Flores that has 2 a hearing. 3 MR. FRIESENHAHN: Yes, Judge. 4 MR. MICHELL: The State is ready, Judge. 02:21PM 5 THE COURT: Mr. Friesenhahn, you have filed 6 one motion entitled Motion to Suppress Evidence? 7 MR. FRIESENHAHN: Right. 8 THE COURT: You have also filed a Motion to 9 Suppress Evidence of Retrograde Extrapolation? 02:22PM 10 MR. FRIESENHAHN: That would carry to trial. 11 THE COURT: All right. So, is the Motion to 12 Suppress Evidence what we need to hear? 13 MR. FRIESENHAHN: Yes. 14 THE COURT: Are you prepared to go forward? 02:22PM 15 MR. FRIESENHAHN: Yes. 16 THE COURT: All right. Is the State ready? 17 MR. MICHELL: Yes, sir. 18 THE COURT: How are we going to proceed? 19 MR. MICHELL: Judge, I will stipulate to a 02:22PM 20 warrantless arrest of this defendant. With regard to the 21 blood evidence that was obtained, I think the purpose of 22 this hearing is to determine whether it's initially 23 admissible at trial. I am not prepared to prove the 24 chain of custody, the toxicologist's ability to analyze 02:22PM 25 the blood, I'm just arguing the legality of the seizure County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 5 1 in the first place. 2 MR. FRIESENHAHN: That is what our -- is -- 3 THE COURT: All right. Are you prepared to 4 go forward? 5 MR. MICHELL: Yes, sir. 6 THE COURT: All right. Go ahead. 7 MR. MICHELL: The State calls Deputy 8 Williams. 9 THE COURT: Come right over here, please. 10 Raise your right hand. Have a seat in the chair, pull up 11 the chair so you can speak directly into the microphone. 12 Mr. Michell. 13 DEPUTY ROBERT WILLIAMS, 14 having been first duly sworn, testified as follows: 15 DIRECT EXAMINATION 16 BY MR. MICHELL: 17 Q. Deputy, can you state your name for the record? 18 A. Robert Williams. 19 Q. And what do you do for a living? 02:23PM 20 A. I'm a deputy sheriff with Guadalupe County 21 Sheriff's Department. 22 Q. Are you a certified peace officer? 23 A. Yes. 24 Q. And do you take courses each year to maintain 02:23PM 25 your certification? County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 6 1 A. Yes. 2 Q. And are you -- How long have you been a certified 3 peace officer? 4 A. I've been a peace officer for three years. 02:23PM 5 Q. Have you received training in administering field 6 sobriety tests? 7 A. Yes. 8 Q. And in DWI investigations? 9 A. Yes. 02:24PM 10 Q. I'm going to draw your attention to November 3rd 11 of 2009. Were you on duty that evening? 12 A. Yes. 13 Q. What were you doing? 14 A. I was patrolling on -- in my district, just 02:24PM 15 answering calls. 16 Q. Okay. Do you recall, at about 8 o'clock that 17 evening, receiving a call about a reckless driver in a 18 semi-truck? 19 A. Yes, I was advised that there was a reckless 02:24PM 20 driver on IH-10 by our dispatch. They gave a description 21 of the vehicle and advised another vehicle was following 22 behind it with his flashers on to identify it. 23 Q. Okay. And what did they say was reckless about 24 the vehicle's driving? 02:24PM 25 A. Dispatch advised me that the person that called County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 7 1 in, that called 911, said when they were speaking to the 2 driver of the other truck, they were both 18-wheelers, 3 when the -- when he spoke to that driver, he was slurring 4 his speech and just to him, he sounded like he was 02:25PM 5 intoxicated. 6 Q. Okay. Did they say whether they saw any bad 7 driving facts other than the slurred speech? 8 A. No. 9 Q. Okay. Did you -- which -- which highway were 02:25PM 10 they on? 11 A. Excuse me. They were headed on IH-10, Eastbound. 12 Q. Okay. Did you eventually catch up to the 13 18-wheeler that had its lights flashing? 14 A. Yeah, I was actually ahead of the vehicle. I was 02:25PM 15 near the 620, I believe, and they were calling about the 16 600-mile marker. So, I positioned my patrol unit and 17 waited for it to -- to come up. 18 Q. Okay. Did you eventually come into contact with 19 the semi-truck that the 911 caller was describing? 02:25PM 20 A. Yes. 21 Q. And what's the specific description of that 22 vehicle? 23 A. It would be a white 18-wheeler semi-cab and it 24 had a flatbed trailer with Tennessee plates. 02:26PM 25 Q. Okay. When you saw that vehicle, did you County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 8 1 personally observe any traffic violations? 2 A. Yes, I observed the driver of the vehicle was 3 driving on the improved shoulder and I also saw the 4 driver driving in-between both lanes of traffic, the 02:26PM 5 right, I'm sorry, the right lane and the center lane. He 6 was driving in the middle of it. 7 Q. Okay. Once you observed those traffic 8 violations, what did you do? 9 A. I waited until we had a good place to stop that 02:26PM 10 was safe and I activated my emergency lights and pulled 11 the vehicle over. 12 Q. Okay. Did you make contact with the driver? 13 A. Yeah, I went up to the driver's side of the door 14 where he, the driver, opened the cab and I identified 02:26PM 15 myself as a -- as a sheriff deputy and why I stopped him. 16 Q. Okay. Do you see the driver of that vehicle in 17 the courtroom this morning? 18 A. Yes, sir. 19 Q. Or this afternoon? 02:27PM 20 A. Yes, sir. 21 Q. Could you point to him and identify an article of 22 clothing that he's wearing? 23 A. It's the gentleman sitting over here on the left 24 in a black shirt (pointing). 02:27PM 25 MR. MICHELL: Your Honor, may the record County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 9 1 reflect the witness identified the defendant? 2 THE COURT: The record will so reflect. 3 Q. (BY MR. MICHELL:) Did you notice anything 4 unusual about the defendant when you were -- when you 02:27PM 5 made contact with him? 6 A. I smelled alcohol coming from the vehicle, as 7 soon as he opened the door. I also saw in his right hand 8 that he had a beer in his hand. 9 Q. Okay. Did you ask him to get out of the car? 02:27PM 10 A. Yeah, I asked him to -- to step out of the 11 vehicle. He wasn't, I believe he wasn't wearing a shirt. 12 So he -- he stood up and he said, "I want to grab a shirt 13 before I come out." So he stood up in his cab and walked 14 to the rear sleeping compartment and started kind of 02:27PM 15 rummaging around looking for his shirt and then his 16 paperwork. 17 Q. Other than not having the shirt on and smelling 18 of alcohol, did you notice anything else unusual about 19 the defendant? 02:28PM 20 A. He did have slurred speech. There was an open 21 container in his hand when I opened it. I could smell 22 alcohol coming from inside of the vehicle. I couldn't 23 determine at that time if it was him in person that had 24 it or smelled like it or the vehicle itself. 02:28PM 25 Q. Okay. Were you able to make that determination County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 10 1 at some point? 2 A. As soon as he stepped out of the cab and the door 3 was shut, I could still smell it emitting from his 4 breath. 02:28PM 5 Q. Okay. Once you saw those signs, what did you 6 decide to do? 7 A. At that time I asked him to step all the way to 8 the rear of the vehicle where my car and camera was 9 positioned closer and -- and asked him if he would submit 02:28PM 10 to a breathalyzer test -- I'm sorry, a field sobriety 11 test, excuse me. 12 Q. Okay. And are you -- you said you are certified 13 in administering those? 14 A. Yes. 02:28PM 15 Q. What did he say? 16 A. He advised me that he -- he wouldn't take -- he 17 wouldn't do the tests. 18 Q. Did you ask him if he had been drinking that 19 evening? 02:29PM 20 A. Yes. 21 Q. What did he say? 22 A. Two beers. 23 Q. Okay. And he refused all of the field sobriety 24 tests? 02:29PM 25 A. Yes. County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 11 1 Q. What did you do after he refused the other field 2 sobriety tests? 3 A. As soon as he advised that he wasn't going to 4 take any tests from all of the clues I had seen, talking 02:29PM 5 to him and inside of the vehicle, I placed him under 6 arrest for suspicion of driving while intoxicated and 7 transported him to the jail. 8 Q. When you say suspicion of driving while 9 intoxicated, did you believe you had probable cause to 02:29PM 10 arrest him? 11 A. Yes. 12 Q. Okay. What happened after -- what happened after 13 you arrested him? 14 A. While I was en route to the jail, I called 02:29PM 15 dispatch when I was getting toward their sally port and 16 asked them to run a background check on that individual 17 and dispatch came back that the subject had two prior 18 convictions for DWI. 19 Q. Okay. At some point, after you arrested him, did 02:30PM 20 you ask the defendant to provide a breath specimen? 21 A. Yes. 22 Q. And what did he say? 23 A. No. He advised no, I refuse everything. 24 Q. Okay. And your instructions when you have 02:30PM 25 reliable information from a credible source that somebody County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 12 1 has two prior DWI convictions and they refuse a breath 2 test, what are you required to do? 3 A. Take a mandatory blood sample of the subject. 4 Q. Did you do that for this defendant? 02:30PM 5 A. Yes, he was transported to the Guadalupe County 6 or I'm sorry, Guadalupe Regional Medical Center, the GRMC 7 and I met with a licensed phlebotomist and did a blood 8 draw. 9 Q. Okay. Who transported him? 02:30PM 10 A. I transported him. 11 Q. Do you remember the name of the phlebotomist? 12 A. Diana, Diane, I think, was her first name. I -- 13 I couldn't remember her last name. 14 Q. Okay. But you told them at the hospital what you 02:31PM 15 were there for? 16 A. Yes. 17 Q. Okay. When they got to the hosp -- when you got 18 to the hospital, were you present when the blood draw was 19 done on the defendant? 02:31PM 20 A. Yes, I -- I was there as -- along with Deputy 21 Wahlert. 22 Q. Okay. What was used to draw the blood from the 23 defendant? 24 A. We have basically a blood sample kit and we -- we 02:31PM 25 carry that with us or we can get it while we're at the County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 13 1 jail. I had one in the car with me so when we went to 2 the hospital, I grabbed it out of my trunk and brought it 3 in there with me and it's got two blood vials and it's 4 got some stuff to do, to -- to -- for chain of command or 02:32PM 5 chain of evidence and stuff like that. I handed it to 6 the phlebotomist and she used a needle and withdrew out 7 of his -- out of his arm, the blood. 8 Q. Okay. What happened to the blood once -- once 9 she drew it from the defendant? 02:32PM 10 A. As soon as she finishes drawing the blood, with 11 me still in the room, I take it, put it in a -- put it in 12 this little plastic protective thing. It's just an extra 13 little layer and then I put it back into the original 14 plastic container that's got some more padding on it and 02:32PM 15 I write down who I got it from, time, date, and then I 16 seal it in the -- in the box it comes in, the cardboard 17 box. 18 Q. Okay. And you said that dispatch told you, after 19 a background check request, that he had two prior 02:32PM 20 convictions for DWI? 21 A. Yes. 22 Q. Does the defendant, in fact, to your knowledge, 23 have two prior convictions for DWI? 24 A. I found out today or yesterday, I think is when I 02:33PM 25 got the subpoena, that he did not; I -- when I noticed it County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 14 1 wasn't the -- the district attorney but the county 2 attorney. 3 Q. Okay. In your experience as a certified peace 4 officer, or when 911 -- or when your dispatcher gives you 02:33PM 5 that information, what -- what is the information coming 6 from? What system maintains that information? 7 A. They take that information from, I believe, it's 8 NCIC/TCIC database which keeps information on basically 9 anybody that's been arrested. It keeps all their 02:33PM 10 driver's license information, makes sure that they have 11 the -- the right to drive a vehicle. 12 Q. Okay. In your experience, as a certified peace 13 officer, do you find TCI information, TCIC information to 14 be reliable information? 02:33PM 15 A. Very reliable. 16 Q. In your experience, have you found the 911 -- or 17 the dispatchers with the sheriff's department to be 18 credible sources of information? 19 A. Yes, they -- they go through their own training 02:34PM 20 for that. 21 Q. Okay. Do you rely on dispatch information for 22 your safety? 23 A. Yes. 24 Q. Does it -- does it inform you whether or not the 02:34PM 25 suspect has a warrant that you come in contact with? County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 15 1 A. Yes. 2 Q. If somebody deliberately enters false information 3 into TCIC records, is that a criminal offense to your 4 knowledge? 02:34PM 5 A. Yes, that is a crime in the State of Texas. 6 Q. Are you aware of any source of information or 7 evidence in the State of Texas that is 100 percent 8 accurate without exception? 9 A. No. 02:34PM 10 Q. Was the clerk's office in Guadalupe County or any 11 other county in Texas open at the time you arrested the 12 defendant? 13 A. No, I believe it was, I can't remember what time 14 it was but it was -- it was well after night, well after 02:34PM 15 closing. 16 Q. At the time you made the arrest of the defendant, 17 did you believe the information you received was reliable 18 information from a credible source? 19 A. Yes. 02:35PM 20 MR. MICHELL: Judge, we have the blood 21 evidence. I'm prepared to admit it but in terms of his 22 legal admissibility, I'm not sure how the Court would 23 like to proceed. 24 THE COURT: What is the statutory authority 02:35PM 25 for a mandatory blood draw for a person who has two prior County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 16 1 DWI's? 2 MR. MICHELL: May I approach, Your Honor? 3 THE COURT: Yes, sir. And Mr. Friesenhahn, 4 you're welcome to approach, too. 02:35PM 5 MR. FRIESENHAHN: He's probably going to 6 have the same thing I'm looking at. 7 THE COURT: Section 724.012 of the 8 Transportation Code. Is that what you're -- 9 MR. MICHELL: Yes, sir, correct. 02:35PM 10 THE COURT: Is that what you're -- 11 MR. FRIESENHAHN: Yes, that's what I've got. 12 THE COURT: I assume that you have some 13 objection to this, Mr. Friesenhahn? 14 MR. FRIESENHAHN: Oh, yes. 02:36PM 15 THE COURT: Well, I mean, that's obviously 16 going to be the question here. Is there a good faith 17 exception to -- to this rule that would apply here and 18 I've heard -- is there any other evidence that we need to 19 induce here? I mean, I'm not trying to cut you off. I'm 02:37PM 20 just saying we can get to the point of this if you want. 21 MR. FRIESENHAHN: Well, it depends on how 22 you're going to rule, Judge. 23 THE COURT: Well, I understand that. 24 MR. FRIESENHAHN: Well, I guess just to 02:37PM 25 anticipate the State's argument, they're, of course, County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 17 1 saying that what the officer had out there from dispatch 2 qualified as possessing information of convictions from 3 a, that was credible, from a reliable -- well reliable 4 information from a credible source. Of course, if you 02:37PM 5 wanted to hear additional evidence on that, I can do 6 that; we would argue that that alone was not enough. 7 THE COURT: The statute says the officer 8 possesses or receives reliable information from a 9 credible source, in which case this is, the dispatcher is 02:37PM 10 getting information from the TCIC system. 11 MR. MICHELL: Which I would argue is a 12 credible source of information which judges use in 13 magistrating defendants, which is used to warn officers 14 that someone could be armed and dangerous, or a -- a sex 02:38PM 15 offender or someone who has a protective order. 16 THE COURT: Well, I don't have any argument 17 with that. And it's just a question what happens when 18 it's wrong? Is there a good faith exception to this 19 statute that allows an officer to do this even though it 02:38PM 20 turns out later he had no authority to do it. 21 MR. MICHELL: The statute is a 22 year-and-a-half old, Your Honor. I have not found any 23 good faith exception case law but I would argue that the 24 officer complied with the law. The statute clearly 02:38PM 25 instructs peace officers, when they are in possession of County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 18 1 reliable information from a credible source, the officer 2 shall require the taking of a blood or breath specimen. 3 That's exactly what this officer did. He received 4 reliable information that turned out to be wrong but it 02:38PM 5 is reliable information, from a credible source, his 6 dispatcher, who is certified, as the officer testified, 7 and he did a blood draw. He complied with the 8 instructions in the statute. 9 THE COURT: Well, again, I will let you 02:39PM 10 induce further evidence if you wish but I will probably 11 take this matter under advisement. 12 MR. FRIESENHAHN: I will, I would like to, 13 when he rests, of course, I need to ask him questions on 14 that issue. 02:39PM 15 THE COURT: All right. Well, I don't think 16 we need to introduce the blood sample as this point -- 17 MR. FRIESENHAHN: No, probably not. 18 THE COURT: -- if that's your question. So 19 we can go forward with that. 02:39PM 20 Q. (BY MR. MICHELL:) And you said you stopped the 21 defendant on Interstate Highway 10? 22 A. Yes. 23 Q. And is that a public highway? 24 A. Yes. 02:39PM 25 Q. Is that in Guadalupe County, Texas? County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 19 1 A. Yes. 2 Q. And was that on November 3rd of 2009? 3 A. Yes. 4 Q. And you said you, you found an open container of 02:39PM 5 alcohol in his -- in his hand when he was in the car? 6 A. In his hand, yes. 7 Q. And what alcohol was that? 8 A. It was a 16-ounce beer can, I believe it was a 9 Bush can, just without looking at my notes. 02:40PM 10 MR. MICHELL: Pass the witness, Judge. 11 THE COURT: Mr. Friesenhahn. 12 CROSS-EXAMINATION 13 BY MR. FRIESENHAHN: 14 Q. Deputy, just a couple of two or three more 02:40PM 15 questions. When you were out there on the side of the 16 road, you met my client, you identified him as Jose 17 Flores; is that correct? 18 A. Yes. 19 Q. Okay. How long have you lived in Texas? 02:40PM 20 A. Approximately 16 years, 17 years. 21 Q. In the course of those 16 years, how many Jose 22 Flores' have you met? 23 A. Several. 24 Q. Okay. Pretty common name of someone who might 02:40PM 25 be -- an Anglo version might be John Smith, right? County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 20 1 A. Yes. 2 Q. Okay. Now, after you arrested Jose, did you take 3 him to the jail? 4 A. I was en route to the jail. We were in the sally 02:40PM 5 port. 6 Q. Okay. Normally the procedure would be to take, 7 correct me if I'm wrong, to take somebody from the sally 8 port, take them to a room where there's an intoxilyzer, 9 read them a statutory warning videotape and give him the 02:41PM 10 opportunity at that point to refuse a test; correct? 11 A. Yes. 12 Q. Okay. And at the jail, there would have been 13 computers running where you could have run a TCIC search 14 if you had wanted to; correct? 02:41PM 15 A. No. 16 Q. Okay. Are you aware that any person off the 17 street can go online and run a -- open up an account with 18 DPS and run a TCIC for convictions? 19 A. My knowledge of it is limited of -- of how you 02:41PM 20 can gather the information, who can gather the 21 information but I know a lot of that is privileged 22 information. 23 Q. Okay. Is there some -- would there have been 24 somebody at the jail, at the sheriff's office who could 02:41PM 25 have run a rap sheet on Mr. Flores if you had booked him County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 21 1 into the jail? 2 A. Our procedure is to go through our dispatchers. 3 Q. Okay. That's not the question. Would there have 4 been somebody available at the sheriff's office who could 02:42PM 5 verify or could have actually run a rap sheet that you 6 could have seen before you went and made a mandatory 7 blood draw? 8 A. Yes, there is. 9 Q. Let me give you a hypothetical. Let -- let's say 02:42PM 10 you stopped somebody for speeding on the side of the road 11 and it turns out that dispatch is telling you that and 12 this person has a common name, dispatch is telling you 13 this person has a warrant out for them. Is it common law 14 enforcement practice to then follow up once that person 02:42PM 15 is brought to the jail to verify that that is indeed the 16 right person who is wanted in the arrest warrant? 17 A. In -- in my past experience if, like we don't 18 have a driver's license number or an I.D. number, we can 19 use descriptive information, tattoos, size, build, just 02:43PM 20 other information like that as well to investigate what's 21 going on. 22 Q. But -- but basically what I'm gathering at, is 23 you're not required to simply rely on what dispatcher 24 tells you. You could take an additional step to verify 02:43PM 25 that somebody is really, really has convictions, is County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 22 1 really the person in the arrest warrant, nothing like 2 that; right? 3 A. I cannot as a deputy. 4 Q. Would there have been somebody available at the 02:43PM 5 Guadalupe County Sheriff's office in that building that 6 could have done that for you? 7 A. Yes, the dispatchers. 8 Q. Did you ask Mr. Flores if he had ever been 9 convicted twice before for DWI? 02:43PM 10 A. I -- I don't remember. 11 Q. Okay. But if he had told you that, you certainly 12 would have noted it in your report? 13 A. I, believe so. 14 Q. Okay. And there's no such notation in your 02:43PM 15 report? 16 A. No. 17 Q. Okay. So, I just want to clarify, it's basically 18 your testimony today that the decision that you made to 19 do a mandatory blood draw was simply based on information 02:44PM 20 that you received from a dispatcher, not any hard written 21 evidence on, on a -- on paper, on a computer screen, 22 anything that you could have actually seen yourself? 23 A. Our policy I -- I don't know how to -- 24 Q. Well, but I mean, I'm just trying to be -- I'm 02:44PM 25 just trying -- I'm not trying to cast blame officer. I'm County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 23 1 just trying to figure out what you were relying on. And 2 it's your -- you're saying that you went simply on that 3 dispatch; right? 4 A. Our -- Yes. Our policy is to use our dispatchers 02:44PM 5 to gather that information. The deputies cannot access 6 the -- the patrol deputies, at that time, cannot access 7 that information by themselves. We have to go through 8 dispatch. 9 Q. Okay. But once you get to the -- to the jail, to 02:45PM 10 the sheriff's office, if there was any doubt in your mind 11 or any question, you could have said, could you please 12 ask someone there, can you please clarify whether this 13 person really does have convictions? 14 A. Yes. 02:45PM 15 Q. But you did not do that on this evening? 16 A. No. 17 MR. FRIESENHAHN: Okay. I'll pass the 18 witness. 19 REDIRECT EXAMINATION 02:45PM 20 BY MR. MICHELL: 21 Q. Deputy, at the time of the arrest of the 22 defendant, what were you told by the dispatcher? 23 A. He had two previous convictions for DWI. 24 Q. And you said, in your experience, your 02:45PM 25 dispatchers are credible -- County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 24 1 A. Yes. 2 Q. -- sources of information? 3 A. Yes. 4 MR. MICHELL: Nothing further, Judge. 02:45PM 5 MR. FRIESENHAHN: One or two more questions. 6 RECROSS-EXAMINATION 7 BY MR. FRIESENHAHN: 8 Q. Have you ever received incorrect information from 9 a dispatcher? 02:45PM 10 A. In my experience, no, not since then. 11 Q. Have you ever heard of any officer receiving 12 incorrect information from a dispatcher? 13 A. Yes, sir. 14 Q. Okay. So, you would concede that that is 02:46PM 15 possible? 16 A. Yes. 17 MR. FRIESENHAHN: Okay. Pass the witness. 18 MR. MICHELL: Nothing further for this 19 witness, Judge. 02:46PM 20 THE COURT: Any objection? 21 MR. FRIESENHAHN: No. 22 THE COURT: All right. You're excused. 23 Thank you. 24 MR. MICHELL: State rests. 02:46PM 25 MR. FRIESENHAHN: We rest. County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 25 1 THE COURT: Well, I'll take this under 2 advisement. Counsel, I would appreciate whatever you can 3 provide me. I think the question of whether the good 4 faith exception may exist in a case like this is 02:46PM 5 pertinent. It also is pertinent, for example, if a 6 person has evidence seized from him because of his 7 purported arrest on a warrant. At a hearing such as 8 this, the State is required to produce the warrant and 9 show that it's a valid warrant. 02:46PM 10 Here we have a circumstance where because of 11 purported convictions evidence was obtained; so, is it 12 similarly necessary for the State at this hearing to 13 produce evidence of those prior convictions in order to 14 back up that claim? 02:47PM 15 MR. FRIESENHAHN: I'd assume that you're 16 almost asking for a briefs hearing -- 17 THE COURT: Briefs, whatever -- 18 MR. FRIESENHAHN: -- final on that for us to 19 get something to you? 02:47PM 20 THE COURT: A couple of weeks. 21 MR. FRIESENHAHN: Okay. 22 THE COURT: And there may not be any case 23 law on this, that's why I'm making analogies to other 24 circumstances such as producing warrants; do you have to 02:47PM 25 produce some evidence of these prior convictions when County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 26 1 called upon to do so by the defense in order to justify 2 this statutory exception? 3 MR. FRIESENHAHN: And Judge, not to -- we -- 4 we all agree with the issue is here but just so I have a 02:47PM 5 proper record in case this case ever goes up on appeal, 6 that essentially our argument would be that, that the 7 officer did the blood draw in violation of Section 8 724.012 of the Texas Transportation Code in that he did 9 not have reliable information from a credible source in 02:47PM 10 his possession, that Mr. Flores, in fact, had two prior 11 convictions for driving while intoxicated. 12 THE COURT: Any argument, Mr. Michell? 13 MR. MICHELL: Well, Judge, I have submitted 14 two cases for the Court's consideration and I have 02:48PM 15 provided the counsel copies. Your Honor, under Garza v. 16 State, the Court of Criminal Appeals or the San Antonio 17 Court of Appeals held that courts are only obligated to 18 exclude evidence only when it violates the Fourth 19 Amendment under the United States Supreme Court's 02:48PM 20 interpretation. 21 Under Schmerber v. California, the United 22 States Supreme Court held that warrantless blood draws 23 done at the request of a police officer at a hospital by 24 a trained medical professional is not unconstitutional. 02:48PM 25 It doesn't violate the Fourth Amendment. It doesn't County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 27 1 violate the Fifth Amendment. 2 So under Texas case law, the only issue for 3 the Court's consideration is independent state statutory 4 law and case law. And in this case, Your Honor, the 02:49PM 5 legislature is very clearly spelled out to peace 6 officers, "a peace officer shall require the taking of a 7 specimen of the person's breath or blood under any of the 8 following circumstances." And the facts just described 9 from this officer, at the time of the arrest, the officer 02:49PM 10 possesses or receives reliable information from a 11 credible source that the person has two prior convictions 12 for DWI. This is expressly why this statute is enacted 13 in the law for defendants who refuse to cooperate with 14 police officers. 02:49PM 15 The -- the analogy that the defense counsel 16 is making, well, once you got back to the jail and once 17 he'd been booked in, you could have maybe run another 18 CJIS check. That's not what the statute says, once you 19 get him back to jail, double check to make sure 911 02:49PM 20 dispatch is correct. The statute clearly states, at the 21 time of the arrest. The officer said, I believe it was 22 reliable information, it was from a credible source, 23 that's dispositive of this issue. 24 The United States Supreme Court says there's 02:50PM 25 nothing violative of the United States Constitution for County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 28 1 this officer to have done what he did. So the only issue 2 before the Court is whether or not the officer complied 3 with the law as it is enacted by the State. I will 4 certainly try to find some case law but I believe this is 02:50PM 5 a novel, a novel situation before the court. 6 MR. FRIESENHAHN: Judge, I -- I would agree 7 that's really a Fourth Amendment issue of our motion 8 encompasses Chapter 38 of the Code of Criminal Procedure 9 which basically says that evidence has to be seized in 02:50PM 10 accordance with all the law, federal and state, and 11 that's why we're -- I agree this is a 724.012 12 transportation code issue. And we're really begging the 13 question here, what constitutes reliable evidence from a 14 credible source? And if you would allow me to continue 02:50PM 15 my argument in a form of a brief, I can get you something 16 in the next two weeks. 17 THE COURT: All right. That's fine, thank 18 you, counsel. 19 We'll be in recess until ten minutes after 20 3:00. 21 (Hearing is taken under advisement and we're 22 in recess.) 23 24 25 County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 29 1 REPORTER'S CERTIFICATE 2 THE STATE OF TEXAS ) COUNTY OF GUADALUPE ) 3 4 I, Stacey B. Sharron, Official Court Reporter in 5 and for the County Court at Law No. 2 of Guadalupe 6 County, State of Texas, do hereby certify that the above 7 and foregoing contains a true and correct transcription 8 of all portions of evidence and other proceedings 9 requested in writing by counsel for the parties to be 10 included in this volume of the Reporter's Record, in the 11 above-styled and numbered cause, all of which occurred 12 in open court or in chambers and were reported by me. 13 I further certify that this Reporter's Record of 14 the proceedings truly and correctly reflects the 15 exhibits, if any, admitted by the respective parties. 16 I further certify that the total cost for the 17 preparation of this Reporter's Record is $__________ and 18 was paid by ____________________. 19 WITNESS MY OFFICIAL HAND this the __________ day of 20 ____________________, 2011. 21 22 ___________________________ Stacey B. Sharron, CSR 7743, RPR 23 Expiration Date: 12/31/2011 Official Court Reporter 24 County Court at Law No. 2 Guadalupe County, Texas 25 Seguin, Texas County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 1 1 REPORTER'S RECORD 2 VOLUME 3 OF 5 VOLUMES 3 TRIAL COURT CAUSE NO. CCL-10-0869 4 COURT OF APPEALS NO. 04-13-00754-CR 5 ) 6 THE STATE OF TEXAS, ) IN THE COUNTY COURT ) 7 ) Plaintiffs ) 8 ) VS. ) AT LAW NO. 2 9 ) ) 10 JOSE ANGEL FLORES, JR. ) ) 11 ) ) 12 Defendants ) GUADALUPE COUNTY, TEXAS 13 14 15 ------------------------------ 16 MOTIONS 17 ------------------------------ 18 19 On the 17th day of July, 2013, the following 20 proceedings came on to be heard in the above-entitled 21 and numbered cause before the Honorable Frank Follis, 22 Judge presiding, held in Seguin, Guadalupe County, 23 Texas; 24 25 Proceedings reported by machine shorthand. County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 2 1 A P P E A R A N C E S 2 3 FOR THE STATE: 4 MR. JOE BUITRON SBOT NO. 24053117 5 ASSISTANT COUNTY ATTORNEY 211 W. COURT STREET 6 SEGUIN, TEXAS 78155 (830) 303-6130 7 8 9 FOR THE DEFENDANT: 10 MR. W. DAVID FRIESENHAHN SBOT NO. 07476350 11 LAW OFFICES OF W. DAVID FRIESENHAHN 314 N. AUSTIN STREET 12 SEGUIN, TEXAS 78155 (830) 372-2722 13 14 15 16 17 18 19 20 21 22 23 24 25 County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 3 1 I N D E X 2 VOLUME 3 (MOTIONS) 4 5 Page Vol. 6 JULY 17, 2013 7 Announcements........................... 4 3 8 Opening Statement by Mr. Buitron........ 4 3 Opening Statement by Mr. Friesenhahn.... 4 3 9 10 STATE'S WITNESSES Direct Cross Voir Dire Page Vol. 11 Deputy Robert Williams 5 8 3 12 State rests............................ 9 3 13 DEFENDANT'S WITNESSES 14 Direct Cross Voir Dire Page Vol. 15 None 16 Defendant rests........................ 9 3 17 Both Sides close....................... 9 3 18 Closing Arguments by Mr. Friesenhahn... 9 3 Closing Arguments by Mr. Buitron....... 10 3 19 Verdict................................ 13 3 20 Adjournment............................ 13 3 21 Court Reporter's Certificate........... 14 3 22 23 24 25 County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 4 1 THE COURT: All right. Jose Angel Flores. 2 MR. FRIESENHAHN: And Judge, just by way of 3 background, this is -- we already had a suppression 4 hearing once in this case on the issue of whether the 10:58AM 5 officer had substantially complied with the mandatory 6 blood draw statute. This was the case where the officer 7 said he later found out that there were not two prior 8 convictions. 9 THE COURT: Yes. 10:58AM 10 MR. FRIESENHAHN: And so then the Court of 11 Appeals came back down. We're here today on a Missouri 12 v. McNeely motion. 13 THE COURT: All right. Are you ready to 14 proceed? 10:58AM 15 MR. FRIESENHAHN: We are Judge. 16 MR. BUITRON: Yes, yes, Your Honor. We just 17 ask that the State (sic) take judicial notice of the 18 testimony that was provided in the first suppression 19 hearing. 10:58AM 20 THE COURT: All right, sir. I'll take 21 notice of that. And Mr. Friesenhahn, what do you have to 22 offer? 23 MR. FRIESENHAHN: Judge, I -- I think we -- 24 we would, again, ask you to take judicial notice of that. 10:59AM 25 I think the State wanted to recall the officer for one or County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 5 1 two questions if I was -- 2 THE COURT: All right. That's fine. Go 3 ahead. 4 MR. BUITRON: Yes, sir. Deputy williams. 10:59AM 5 State calls Deputy Williams. 6 THE COURT: All right. Come right over 7 here, please. All right. Have a seat in the chair and 8 speak right into the microphone. 9 THE WITNESS: Yes, sir. 10:59AM 10 DIRECT EXAMINATION 11 BY MR. BUITRON: 12 Q. Please state your name for the record. 13 A. Robert Williams. 14 Q. And are you the same Robert Williams who 10:59AM 15 testified at a hearing regarding this case on April 6, 16 2011? 17 A. Yes, sir. 18 Q. Do you know what day it was when you stopped 19 Mr. Flores? 10:59AM 20 A. November 3rd, 2009. 21 Q. And do you know whether it was a Monday, Tuesday, 22 Wednesday, or Thursday? 23 A. No, sir, I don't recall. 24 Q. All right. Do you know what -- what the time of 11:00AM 25 day it was when you stopped Mr. Flores? County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 6 1 A. It was, I believe, 8 o'clock in the evening. 2 Q. Okay. Exactly when were you informed that 3 Mr. Flores had two prior convictions for driving while 4 intoxicated? 11:00AM 5 A. I had already arrested the individual and I 6 believe I was on my way to the jail or I was in the jail 7 when I was notified that he'd been arrested for two prior 8 convictions of DWI. 9 Q. It was after any investigation that you did at 11:00AM 10 the scene? 11 A. Yes. 12 Q. On the road? 13 A. Yes, sir. 14 Q. How much time had elapsed from when you initially 11:00AM 15 stopped him to -- to you -- you got to the jail? 16 A. Less than an hour. 17 Q. Did you read Mr. Flores the DIC 24 and request -- 18 A. Yes. 19 Q. And did you request a sample of his breath? 11:01AM 20 A. Yes, I did. 21 Q. And do you know approximately what time it was 22 when you did that? 23 A. I think my stop was about maybe 8:00, 8:30 and 24 then when I got to the jail it had been about maybe an 11:01AM 25 hour in full; so it was right after I got to the jail County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 7 1 that I started reading him the DIC 24. 2 Q. Okay. So approximately what time do you think it 3 might have been? 4 A. Probably about 9:00, 9:30. 11:01AM 5 Q. Are you aware of the normal business hours for 6 Guadalupe County offices? 7 A. Yes, sir. 8 Q. What are those normal business hours? 9 A. 8:00 to 5:00. 11:01AM 10 Q. Are -- are you aware of normal business hours for 11 the judges that work here in Guadalupe County? 12 A. Same, same business hours, 8:00 to 5:00. 13 Q. Is it standard policy or standard practice for 14 peace officers to try and locate judges outside of those 11:02AM 15 business hours? 16 A. It has to be a special circumstance and to do 17 that -- to do that, I have to go up my chain of command. 18 Q. When you say go up your chain of command, what do 19 you mean? Can you describe that? 11:02AM 20 A. At that time my chain of command was to contact 21 my supervisor, Sergeant Strauss, and notify him if -- if 22 I needed a warrant and from there he can do what his -- 23 his job is which I don't -- I'm not sure what his policy 24 on that is. 11:02AM 25 Q. Are you aware if there's any judges here in County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 8 1 Guadalupe County that make themselves readily available 2 after business hours? 3 A. No. 4 Q. When Mr. -- After Mr. Flores refused to provide a 11:03AM 5 sample of his breath, did you attempt to obtain a 6 warrant? 7 A. No, I did not. 8 Q. Why? 9 A. I did not need one. I had -- was -- The Texas 11:03AM 10 law, at that time, stated that I did not need a warrant 11 to get a blood draw because he had two previous 12 convictions under DWI statutes. 13 Q. And just to be clear this law that we're talking 14 about, is this in the transportation code? 11:03AM 15 A. Yes, sir. 16 Q. And is it Section 724.012? 17 A. Yes, sir. 18 Q. Subsection B? 19 A. Yes, sir, I believe it is. 11:03AM 20 Q. Okay. 21 MR. BUITRON: Nothing further, Your Honor. 22 CROSS-EXAMINATION 23 BY MR. FRIESENHAHN: 24 Q. Deputy, just a couple two or three follow-up 11:03AM 25 questions. Just to make clear on that evening after you County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 9 1 arrested Mr. Flores, you never tried to obtain a search 2 warrant in order to get a sample of Mr. Flores' blood so 3 that it could be analyzed for alcohol content? 4 A. No, sir, because of the law that stated I didn't 11:04AM 5 need to. 6 Q. And that was going to be my next question. 7 Because you thought you were acting in compliance with 8 state law at the time; correct? 9 A. I knew I was. 11:04AM 10 Q. Okay. And your -- your department does, in fact, 11 have procedures for trying to obtain a warrant after 12 normal business hours but it would entail your going up 13 your chain of command; correct? 14 A. Yes, sir. 11:04AM 15 MR. FRIESENHAHN: Pass the witness. 16 MR. BUITRON: Nothing further, Your Honor. 17 THE COURT: Anything further? Any evidence? 18 MR. BUITRON: No evidence by the State, Your 19 Honor. 11:04AM 20 MR. FRIESENHAHN: None from us, Your Honor. 21 THE COURT: All right. Officer, thank you. 22 Step down, please. 23 Any argument, Mr. Friesenhahn? 24 MR. FRIESENHAHN: Yes, Judge. I think the 11:04AM 25 -- the blood test results in this case have to be County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 10 1 suppressed under Missouri v. McNeely 133 S.Ct. 1552 cited 2 earlier this year. In that case the U.S. Supreme Court 3 said that in a DWI case where law enforcement is getting 4 a blood draw for the purposes of analysis for alcohol or 11:05AM 5 drugs, they may first obtain a search warrant absent some 6 very peculiar circumstances. The mere fact that a 7 person's alcohol concentration may be dissipating in the 8 blood stream is not in and of itself an extingent (sic) 9 circumstance. 11:05AM 10 In this case, this is a, based on the 11 testimony at a prior suppression hearing, this was a 12 routine traffic stop and a DWI arrest. He took 13 Mr. Flores to the jail. So he would have had the ability 14 to contact other officers and make an attempt to go up 11:05AM 15 his chain of his command and obtain a warrant. There was 16 a procedure in place for trying to do that. He did not 17 even make an attempt for the reason he stated at the time 18 thought he was complying with state law. So no attempt 19 was made to secure a warrant; there was no warrant. 11:06AM 20 There were procedures in place that could have been used 21 to obtain a warrant and they weren't used. 22 And for those reasons, we would ask that you 23 suppress the blood test results based on McNeely. 24 THE COURT: Mr. Buitron? 11:06AM 25 MR. BUITRON: Your Honor, the State would County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 11 1 argue that Missouri v. McNeely does not matter in this 2 particular instance because he was relying on the 3 transportation code statute which is in three specific 4 enumerated reasons as to when you do not need a warrant. 11:06AM 5 The McNeely case did not address those specific 6 instances. The only instance the McNeely case addressed 7 was when the only reason that a warrant was not -- that 8 an officer did not go to obtain a warrant is simply 9 because the -- the blood was going to be dissipated and 11:06AM 10 metabolized naturally in -- or the alcohol was going to 11 be metabolized naturally throughout the blood and that 12 was the only reason. There is a footnote where the Texas 13 statute is cited and in that footnote there was no 14 indication that there was something wrong or -- or 11:07AM 15 invalid or unconstitutional about those statutes. 16 In addition, it would have taken a long time 17 to go get this warrant. There weren't any judges readily 18 available in order to get the chain of command that would 19 have taken extra time. Mr. Friesenhahn suggested that 11:07AM 20 only under peculiar circumstances could a warrant be 21 bypassed but the McNeely case did not suggest that. In 22 fact, the holding in the McNeely case suggested that the 23 California v. Schmerber case that suggested a totality of 24 the circumstances should be used in a case by case basis. 11:07AM 25 That -- that is still good law. And for that reason, the County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 12 1 State would argue that the motion to suppress be denied. 2 MR. FRIESENHAHN: I would just respond in 3 two ways, Judge. I'm aware of the footnote to which 4 counsel refers. Basically, there's a footnote in McNeely 11:08AM 5 in which one of the justices states -- points to the 6 Texas statute as an example that in some circumstances 7 there may be, in fact, extingent (sic) circumstances to 8 prevent the securing of a warrant. But that -- You have 9 to remember, the Texas Transportation Code demands for a 11:08AM 10 blood draw statute. Most provisions have to do with 11 situations where there is somebody injured, there's a 12 traffic accident, things of that nature. 13 Here we have a situation where an officer's 14 been informed that somebody simply has two prior 11:08AM 15 convictions. That in and of itself doesn't create an 16 emergency or extingency (sic) that would obligate the 17 warrant requirement. And the -- the court did not go 18 into detail because it did not have the statute in front 19 of it as to whether the transportation code was 11:08AM 20 constitutional or not in any respect. It simply said you 21 have to have a warrant absent unusual circumstances. 22 Even though it would have taken additional time to get a 23 warrant, well that's the whole point of McNeely; the 24 State tried to argue that. If we try to go get a warrant 11:09AM 25 for Mr. McNeely (sic) it would have taken extra time. County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 13 1 But the Supreme Court says that's not a good enough 2 excuse; you still have to go and make an attempt. So in 3 this case, again, there was a process set up that could 4 have been used to obtain a warrant even though the 11:09AM 5 officer thought he was complying with state statute. The 6 real question here is whether there is a genuine 7 extingency (sic) that would have prevented the securing 8 of a warrant. There wasn't. It was a plain vanilla 9 traffic stop. And so we think you have to suppress the 11:09AM 10 blood. 11 THE COURT: The Motion to Suppress Blood 12 Test and Blood Test Results pursuant to Missouri v. 13 McNeely is denied. 14 11:10AM 15 (Motions hearing is concluded.) 16 17 18 19 20 21 22 23 24 25 County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 14 1 REPORTER'S CERTIFICATE 2 THE STATE OF TEXAS ) COUNTY OF GUADALUPE ) 3 4 I, Stacey B. Sharron, Official Court Reporter in 5 and for the County Court at Law No. 2 of Guadalupe 6 County, State of Texas, do hereby certify that the above 7 and foregoing contains a true and correct transcription 8 of all portions of evidence and other proceedings 9 requested in writing by counsel for the parties to be 10 included in this volume of the Reporter's Record, in the 11 above-styled and numbered cause, all of which occurred 12 in open court or in chambers and were reported by me. 13 I further certify that this Reporter's Record of 14 the proceedings truly and correctly reflects the 15 exhibits, if any, admitted by the respective parties. 16 I further certify that the total cost for the 17 preparation of this Reporter's Record is $395.92 and was 18 paid by Guadalupe County. 19 WITNESS MY OFFICIAL HAND this 20th day of February, 20 2014. 21 22 ___________________________ Stacey B. Sharron, CSR 7743, RPR 23 Expiration Date: 12/31/2015 Official Court Reporter 24 County Court at Law No. 2 Guadalupe County, Texas 25 Seguin, Texas County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 1 1 REPORTER'S RECORD 2 VOLUME 4 OF 5 VOLUMES 3 TRIAL COURT CAUSE NO. CCL-10-0869 4 COURT OF APPEALS NO. 04-13-00754-CR 5 ) 6 THE STATE OF TEXAS, ) IN THE COUNTY COURT ) 7 ) Plaintiffs ) 8 ) VS. ) AT LAW NO. 2 9 ) ) 10 JOSE ANGEL FLORES, JR. ) ) 11 ) ) 12 Defendants ) GUADALUPE COUNTY, TEXAS 13 14 15 ------------------------------ 16 PLEA 17 ------------------------------ 18 19 On the 23rd day of September, 2013, the following 20 proceedings came on to be heard in the above-entitled 21 and numbered cause before the Honorable Frank Follis, 22 Judge presiding, held in Seguin, Guadalupe County, 23 Texas; 24 25 Proceedings reported by machine shorthand. County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 2 1 A P P E A R A N C E S 2 3 FOR THE STATE: 4 MR. JOE BUITRON SBOT NO. 24053117 5 ASSISTANT COUNTY ATTORNEY 211 W. COURT STREET 6 SEGUIN, TEXAS 78155 (830) 303-6130 7 8 9 FOR THE DEFENDANT: 10 MR. W. DAVID FRIESENHAHN SBOT NO. 07476350 11 LAW OFFICES OF W. DAVID FRIESENHAHN 314 N. AUSTIN STREET 12 SEGUIN, TEXAS 78155 (830) 372-2722 13 14 15 16 17 18 19 20 21 22 23 24 25 County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 3 1 I N D E X 2 (PLEA) 3 4 Page Vol. 5 September 23, 2013 6 7 Court Reporter's Certificate........... 6 4 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 4 1 THE COURT: Jose Flores. You're charged 2 with the offense of driving while intoxicated, alleged to 3 have occurred on or about November 3rd of 2009. This is 4 a class B misdemeanor punishable by not more than 09:48AM 5 180 days in jail, a fine not to exceed $2,000. Do you 6 understand what you're charged with? 7 THE WITNESS: Yes, sir. 8 THE COURT: You have a right to a jury 9 trial. I have here a paper that says you want to give up 09:48AM 10 your right to a jury trial and try your case to me here 11 today; is that what you want to do? 12 THE WITNESS: Yes, sir. 13 THE COURT: I'll approve the waiver. To the 14 offense of driving while intoxicated, first offense, how 09:48AM 15 do you plead, guilty or not guilty? 16 MR. FRIESENHAHN: No contest. 17 THE WITNESS: No contest. 18 THE COURT: Recommendation? 19 MR. FRIESENHAHN: It's an open plea to the 09:48AM 20 Court, Judge. 21 THE COURT: All right. In that event based 22 on your plea, I find that you are guilty. The Court will 23 order a presentence investigation. You'll need to make 24 an appointment with the probation department to be 09:48AM 25 interviewed. And Mr. Friesenhahn, get the appropriate County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 5 1 reset. 2 MR. FRIESENHAHN: Yes, Judge. 3 4 5 (Plea is concluded.) 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 6 1 REPORTER'S CERTIFICATE 2 THE STATE OF TEXAS ) COUNTY OF GUADALUPE ) 3 4 I, Stacey B. Sharron, Official Court Reporter in 5 and for the County Court at Law No. 2 of Guadalupe 6 County, State of Texas, do hereby certify that the above 7 and foregoing contains a true and correct transcription 8 of all portions of evidence and other proceedings 9 requested in writing by counsel for the parties to be 10 included in this volume of the Reporter's Record, in the 11 above-styled and numbered cause, all of which occurred 12 in open court or in chambers and were reported by me. 13 I further certify that this Reporter's Record of 14 the proceedings truly and correctly reflects the 15 exhibits, if any, admitted by the respective parties. 16 I further certify that the total cost for the 17 preparation of this Reporter's Record is $395.92 and was 18 paid by Guadalupe County. 19 WITNESS MY OFFICIAL HAND this 20th day of February, 20 2014. 21 22 ___________________________ Stacey B. Sharron, CSR 7743, RPR 23 Expiration Date: 12/31/2015 Official Court Reporter 24 County Court at Law No. 2 Guadalupe County, Texas 25 Seguin, Texas County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 1 1 REPORTER'S RECORD 2 VOLUME 5 OF 5 VOLUMES 3 TRIAL COURT CAUSE NO. CCL-10-0869 4 COURT OF APPEALS NO. 04-13-00754-CR 5 ) 6 THE STATE OF TEXAS, ) IN THE COUNTY COURT ) 7 ) Plaintiffs ) 8 ) VS. ) AT LAW NO. 2 9 ) ) 10 JOSE ANGEL FLORES, JR. ) ) 11 ) ) 12 Defendants ) GUADALUPE COUNTY, TEXAS 13 14 15 ------------------------------ 16 PUNISHMENT HEARING 17 ------------------------------ 18 19 On the 24th day of October, 2013, the following 20 proceedings came on to be heard in the above-entitled 21 and numbered cause before the Honorable Frank Follis, 22 Judge presiding, held in Seguin, Guadalupe County, 23 Texas; 24 25 Proceedings reported by machine shorthand. County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 2 1 A P P E A R A N C E S 2 3 FOR THE STATE: 4 MR. JOE BUITRON SBOT NO. 24053117 5 ASSISTANT COUNTY ATTORNEY 211 W. COURT STREET 6 SEGUIN, TEXAS 78155 (830) 303-6130 7 8 9 FOR THE DEFENDANT: 10 MR. W. DAVID FRIESENHAHN SBOT NO. 07476350 11 LAW OFFICES OF W. DAVID FRIESENHAHN 314 N. AUSTIN STREET 12 SEGUIN, TEXAS 78155 (830) 372-2722 13 14 15 16 17 18 19 20 21 22 23 24 25 County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 3 1 I N D E X 2 (PUNISHMENT) 3 4 Page Vol. 5 OCTOBER 24, 2013 6 7 Court Reporter's Certificate........... 7 5 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 4 1 THE COURT: Jose Flores. The record 2 reflects on September 23rd of 2013, Mr. Flores plead no 3 contest to the offense of driving while intoxicated as 4 alleged. There having been no plea bargain agreement as 11:38AM 5 to punishment, the Court ordered a presentence 6 investigation to be conducted. 7 Mr. Buitron, have you had a chance to review 8 the presentence investigation? 9 MR. BUITRON: Yes, Your Honor. 11:38AM 10 THE COURT: Any objections? 11 MR. BUITRON: No. 12 THE COURT: Mr. Friesenhahn, have you 13 reviewed it? 14 MR. FRIESENHAHN: Yes, I have. 11:38AM 15 THE COURT: Any objections or corrections to 16 factual matters that need to be made? 17 MR. FRIESENHAHN: No, Judge. 18 THE COURT: Mr. Buitron, any evidence? 19 MR. BUITRON: No evidence, Your Honor. 11:38AM 20 THE COURT: Any evidence, Mr. Friesenhahn? 21 MR. FRIESENHAHN: No, Judge. 22 THE COURT: All right. Mr. Buitron, any 23 argument? 24 MR. BUITRON: I would just argue that based 11:38AM 25 on the charge itself, the driving while intoxicated, that County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 5 1 the defendant either be probated for the maximum 2 24 months or be given at least 60 days in jail. 3 THE COURT: Mr. Friesenhahn? 4 MR. FRIESENHAHN: I would ask you to go a 11:38AM 5 little bit lower on the probation simply because this is 6 a first offense, Judge. 7 THE COURT: All right. Having reviewed the 8 evidence and the argument of counsel, the Court finds the 9 defendant is guilty of the offense of driving while 11:39AM 10 intoxicated, as alleged; assess his punishment at 90 days 11 in the Guadalupe County Jail and a $1,000 fine, plus 12 court costs. 13 Because this is not a plea bargain case you 14 have a right to appeal. You also have a right to appeal 11:39AM 15 from the motion to suppress, well it was granted, he has 16 no right to appeal from that. 17 MR. FRIESENHAHN: Well, there were two 18 motions to suppress. You denied the second one. 19 THE COURT: All right. To the extent that 11:39AM 20 you have filed pretrial motions that were denied prior to 21 trial, you have a right to appeal from those denials as 22 well as this sentence. If you wish to give notice of 23 appeal, you must do so, in writing, within 30 days of 24 today's date. If I find that you are indigent and cannot 11:39AM 25 afford an attorney on appeal, one can be appointed to County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 6 1 represent you. And if I find that you are indigent and 2 cannot afford the reporter's record on appeal, I can 3 provide that for you also. Again, Mr. Friesenhahn is 4 certainly well familiar with this. You may want to 11:40AM 5 discuss with him your appeal options. But if you do wish 6 to appeal, you must give notice, in writing, within 30 7 days. 8 You're remanded to the bailiff for the 9 execution of this sentence. Thank you. 10 11 (Hearing is concluded.) 12 13 14 15 16 17 18 19 20 21 22 23 24 25 County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 7 1 REPORTER'S CERTIFICATE 2 THE STATE OF TEXAS ) COUNTY OF GUADALUPE ) 3 4 I, Stacey B. Sharron, Official Court Reporter in 5 and for the County Court at Law No. 2 of Guadalupe 6 County, State of Texas, do hereby certify that the above 7 and foregoing contains a true and correct transcription 8 of all portions of evidence and other proceedings 9 requested in writing by counsel for the parties to be 10 included in this volume of the Reporter's Record, in the 11 above-styled and numbered cause, all of which occurred 12 in open court or in chambers and were reported by me. 13 I further certify that this Reporter's Record of 14 the proceedings truly and correctly reflects the 15 exhibits, if any, admitted by the respective parties. 16 I further certify that the total cost for the 17 preparation of this Reporter's Record is $395.92 and was 18 paid by Guadalupe County. 19 WITNESS MY OFFICIAL HAND this 20th day of February, 20 2014. 21 22 ___________________________ Stacey B. Sharron, CSR 7743, RPR 23 Expiration Date: 12/31/2015 Official Court Reporter 24 County Court at Law No. 2 Guadalupe County, Texas 25 Seguin, Texas County Court at Law No. 2 211 W. Court Street, Ste. 338 Phone (830) 303-4188 ext. 209 Fax (830) 303-0283 CLERK'S RECORD VOLUME.-l- of.-l- Trial Court Cause No. CCL-IO-0869 In the County Court at Law #2 of Guadalupe County, Texas, Honorable Frank Follis, Judge Presiding State of Tens, Plaintiff vs. Jose Angel Flores, Jr., Defendant Appealed to the 4th Court of Appeals at San Antonio, Texas Attorney for Appellant: Name: Susan Schoon Address: 118 S. Union Avenue New Braunfels, TX 78130 Telephone no: (830) 627-0044 Fax no: (830) 620-5657 SBOT no: 24046803 Attorney for: Jose Angel Flores. Jr.. Appellant Delivered to the 4th Court of Appeals at San Antonio, Texas on the ~ day of dhrU!1fiJ' dOl