ACCEPTED
03-14-00588-CR
4756281
THIRD COURT OF APPEALS
AUSTIN, TEXAS
4/3/2015 9:13:28 AM
JEFFREY D. KYLE
CLERK
No. 03-14-00588-CR
FILED IN
3rd COURT OF APPEALS
In the AUSTIN, TEXAS
Court of Appeals 4/3/2015 9:13:28 AM
Third District JEFFREY D. KYLE
Austin, Texas Clerk
The State of Texas,
Appellant
v.
Hector Martinez,
Appellee
Appeal from the 42th Judicial District Court
Travis County, Texas
Cause Number D-1-DC-13-900228
STATE’S REPLY BRIEF
Rosemary Lehmberg
District Attorney
Travis County
Angie Creasy
Assistant District Attorney
State Bar No. 24043613
P.O. Box 1748
Austin, Texas 78767
(512) 854-9400
Fax (512) 854-4810
Angie.Creasy@traviscountytx.gov
AppellateTCDA@traviscountytx.gov
To the Honorable Third Court of Appeals:
Now comes the State of Texas and files this reply brief.
Reply for Point One
The defendant argues that, hypothetically, the officer could have
begun the process of getting a warrant as early as 1:45 a.m., when he
arrived at the BAT bus.1
The record does not support this assertion because there is no
evidence that the officer had the ability to draft a search warrant
affidavit (usually done on a computer), or to send the affidavit to a
magistrate (email or fax), at the BAT bus. Thus, the officer still had to
make his way to the jail, or the police department, or some other
office, where he would have the ability to draw up an affidavit and
send it to the magistrate.2
1 Arrestees can give breath samples, which are tested for blood alcohol
content, at the BAT bus. 2RR 62.
2 The defendant also assumes that the officer could have obtained a warrant
by phone, after sending the affidavit to the magistrate. But the legality of
obtaining warrants by phone is not exactly on firm ground. To the contrary,
telephonic warrants are subject to attack on a case-by-case basis. See Clay v.
State, 391 S.W.3d 94, 104 (Tex. Crim. App. 2013).
1
Reply for Points Two and Three
In its original brief, the State acknowledged an adverse opinion
from the Court of Criminal Appeals that contradicted the arguments
made by the State in Points Two and Three. See State v. Villarreal,
No. PD-0306-14, 2014 Tex. Crim. App. LEXIS 1898 (Tex. Crim. App.
Nov. 26, 2014) (finding mandatory blood draw unconstitutional).
The State wishes to inform the court that the Court of Criminal
Appeals granted the State’s motion for rehearing in Villarreal on
February 25, 2015. See id., 2015 Tex. Crim. App. LEXIS 201.
The State continues to press the arguments made in Points Two
and Three since the court could issue a different decision upon
rehearing, especially since the court was split 5-4 and three of the
judges who joined the majority opinion have recently left the court.
Reply for Point Four
In Point Four, the State argued that the Texas exclusionary rule
does not apply because the police did not obtain the evidence in
violation of the Fourth Amendment because, at the time of the blood
draw, Texas case law clearly held that alcohol dissipation alone
constituted exigent circumstances in DWI cases.
2
The defendant counters that the holding in McNeely is retroactive.
The State agrees that the holding in McNeely is retroactive and
applies to the defendant’s case. But this does not mean that the
exclusionary rules apply as well. Indeed, the Supreme Court has held
that the federal exclusionary rule often does not apply even though a
new holding is retroactive.
It is now up to Texas courts to decide whether the Texas
exclusionary rule applies when the law changes after evidence is
obtained. This will turn on how the courts interpret the language in
the Texas exclusionary rule, codified in Tex. Code Crim. Proc. art.
38.23.
Again, the State’s argument is that the Texas exclusionary rule
does not apply when the law changes after evidence has been
obtained because, in such a situation, the evidence was not actually
obtained in violation of the law.
Prayer
The State asks this Court to sustain its points of error, reverse the
trial court’s order suppressing the results of the blood analysis, and
remand this case to the trial court for further proceedings.
3
Respectfully submitted,
Rosemary Lehmberg
District Attorney
Travis County
Angie Creasy
Assistant District Attorney
State Bar No. 24043613
P.O. Box 1748
Austin, Texas 78767
(512) 854-9400
Fax (512) 854-4810
Angie.Creasy@traviscountytx.gov
AppellateTCDA@traviscountytx.gov
Certificate of Compliance and Service
I hereby certify that this brief contains 676 words. I further certify
that, on the 3rd day of April, 2015, a true and correct copy of this brief
was served, by U.S. mail, electronic mail, facsimile, or electronically
through the electronic filing manager, to the Appellee’s attorney,
John De la Vina, 702 Rio Grande, Austin, Texas 78701.
Angie Creasy
4