ACCEPTED
03-13-00494-CR
7674999
THIRD COURT OF APPEALS
AUSTIN, TEXAS
11/4/2015 10:23:49 AM
JEFFREY D. KYLE
CLERK
No. 03-13-00494-CR
In the FILED IN
3rd COURT OF APPEALS
COURT OF APPEALS AUSTIN, TEXAS
For the 11/4/2015 10:23:49 AM
THIRD SUPREME JUDICIAL DISTRICT JEFFREY D. KYLE
at Austin Clerk
______________________________________
On Appeal from the 264th Judicial District Court of
Bell County, Texas
Cause Number 68431
______________________________________
EUGENE KELLY WOLFENBERGER, Appellant
v.
THE STATE OF TEXAS, Appellee
_______________________________
APPELLANT’S MOTION FOR RECONSIDERATION EN BANC1
__________________________________
Background
On July 12, 2013, a jury found Appellant guilty of the offense of
intoxication manslaughter and assessed Appellant’s punishment at twenty years in
prison and a $10,000.00 fine. Appellant timely filed Notice of Appeal and on
October 23, 2015, this Court affirmed Appellant’s conviction in a memorandum
opinion. Wolfenberger v. State, No. 03-13-00494-CR (Tex. App.—Austin,
delivered October 23, 2015).
1
Simultaneous with this filing, Appellant has also filed a Motion for Rehearing in light of Texas
Rule of Appellate Procedure 49.1 and Franks v. State, 97 S.W.3d 584, 584 (Tex. Crim. App.
2003).
1
Grounds for Reconsideration
On appeal, Appellant argued that Appellant received ineffective assistance
of counsel when trial counsel failed to move to suppress the results of a blood draw
taken pursuant to Texas’s now invalidated implied consent mandatory blood draw
statute. Specifically, Appellant’s blood was taken without a warrant in violation of
Missouri v. McNeely, 133 S.Ct. 1522 (2013), and his attorneys failed to object on
that basis. Despite the fact that the McNeely case, which held that Texas’s implied
consent statute did not provide an exception to the Supreme Court’s long-held
requirement that a warrant be obtained to draw a suspect’s blood, was released
more than two months prior to trial, and was binding Supreme Court’s precedent,
trial counsel made no effort to suppress the results of the blood draw.
Reconsideration should be granted because this Court absolved trial
counsel’s deficient performance by failing to recognize the authority of the United
States Supreme Court in analyzing its own precedent and instead, ruled that the
Texas Court of Criminal Appeals decisions analyzing United States Supreme Court
precedent should control.
2
Ineffective Assistance of Counsel
As discussed above, on Appeal, Appellant argued that he received
ineffective assistance of counsel2 when trial counsel failed to move to suppress the
results of the mandatory blood draw in this case pursuant to the United States
Supreme Court’s holding in Missouri v. McNeely, 133 S.Ct. 1522 (2013).
On April 17, 2013, the United States Supreme Court issued an opinion in
Missouri v. McNeely, 133 S.Ct. 1522 (2013), holding that “In those drunk-driving
investigations where police officers can reasonably obtain a warrant before a blood
sample can be drawn without significantly undermining the efficacy of the search,
the Fourth Amendment mandates that they do so.” Id. In so holding, the Court
rejected a per se rule that the dissipation of alcohol in the blood stream creates an
exigency which absolves the State of the duty to obtain a warrant before taking a
suspect’s blood. Id. In fact, the Court recognized its long-standing directive that
exigency be determined on the totality of the circumstances and cited its opinion in
Schmerber v. California, 384 U.S. 757 (1966). Despite the fact that Appellant’s
trial occurred more than two months after the McNeely decision, trial counsel made
2
As this Court is aware, to prevail on a claim of ineffective assistance of counsel, Appellant
must show that (1) trial counsel’s representation was deficient in that it fell below an objective
standard of reasonableness; and (2) counsel’s deficient performance prejudiced Appellant so
that there is a reasonable probability that the result of the proceeding would have been
different but for the deficient performance. Strickland v. Washington, 466 U.S. 668 (1984);
Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).
3
no attempt to move to suppress evidence of Appellant’s blood alcohol content of
.30 and trial counsel made no objection to that evidence.
This Court absolved trial counsel of any duty to file a motion to suppress or
object to evidence of Appellant’s blood alcohol content because “The law on
mandatory blood draws and implied consent was not settled when trial counsel
presented appellant’s case” and stated further in a foot note that:
Trial commenced on July 8, 2013, more than two months after the
Supreme Court held that blood-alcohol dissipation is not a per se
exigency justifying warrantless, nonconsensual blood draws in
Missouri v. McNeely, 133 S. Ct. 1552 (2013). However, the Texas
Court of Criminal Appeals did not address whether nonconsensual
blood draws taken pursuant to Texas Transportation Code § 724.012
require a warrant until after appellant’s trial concluded, and the court
has since decided to reconsider that ruling on rehearing. State v.
Villarreal, __ S.W.3d __, No. PD-0306-14, 2014 WL 6734178, at *8-
9, 11 (Tex. Crim. App. Nov. 26, 2014) (reh’g granted). The law
surrounding Texas’s implied-consent and mandatory-blood-draw
statutes has been unsettled since before appellant’s trial.
Wolfenberger v. State, No. 03-13-00494-CR (Tex. App.—Austin, delivered
October 23, 2015), at 7.
Interestingly, this Court acknowledges the Supreme Court’s clear holding
“that blood-alcohol dissipation is not a per se exigency justifying warrantless,
nonconsensual blood draws” in Missouri v. McNeely, 133 S. Ct. 1552 (2013),
which would have triggered counsel’s duty to object or move to suppress the
4
evidence on that basis. The Court then essentially states that it is up to the Court of
Criminal Appeals to interpret the Supreme Court’s holdings and until the Court of
Criminal Appeals does so, the Supreme Court’s holdings are not binding on
counsel.
In its opinion, this Court cites two cases for the proposition that counsel’s
performance cannot be held to be deficient where an area of law is unsettled. See
State v. Bennett, 415 S.W.3d 867 (Tex. Crim. App. 2013) and Bernal v. State, No.
02-13-00381-CR, 2014 WL 5089182 (Tex. App.—Fort Worth Oct. 9, 2014, no
pet.).
In the first of those cases, the area of unsettled law was that of a State statute
and its meaning as interpreted by several conflicting opinions by the Court of
Criminal Appeals. See State v. Bennett, 415 S.W.3d at 868-869. The Bennett
opinion in no way contemplated United States Supreme Court precedent. See Id.
In the second, unpublished case with no precedential value, the Fort Worth
Court of Appeals held that counsel was not ineffective for failing to suppress
results of a warrantless, nonconsensual blood draw under McNeely because
“McNeely did not address directly the effect of mandatory-blood-draw or implied-
consent statues on the warrant requirement,” and “the import of McNeely on
Texas’s mandatory-blood-draw and implied-consent statutes was unsettled at the
5
time of [appellant’s] trial . . .” See Bernal, No. 02-13-00381-CR, slip. op. at 10-12.
However, those statements are incorrect. In fact, in its opinion in the
McNeely case, the United States Supreme Court directly addressed the various
implied consent laws adopted by the fifty states and noted that a driver who has
impliedly consented to blood alcohol testing as a condition of operating a motor
vehicle on public roads can withdraw that consent if asked to give a blood or
breath sample. Missouri v. McNeely, 133 S.Ct. 1522 (2013). The Court stressed
that “wide-spread state restrictions on nonconsensual blood testing provide further
support for our recognition that compelled blood draws implicate a significant
privacy interest.” Id.
It is well-settled that United States Supreme Court precedent controls and
when the United States Supreme Court requires a warrant in a blood draw case,
counsel should have a duty to object to blood evidence obtained without a warrant.
To fail to do so is deficient performance, especially in a case where the evidence
indicates Appellant was almost four times the legal level for intoxication and there
is a dispute as to whether he was intoxicated at the time the alleged offense was
committed. Because this Court held to the contrary, and for the foregoing reasons
reconsideration should be granted.
6
PRAYER
WHEREFORE, PREMISES CONSIDERED, Appellant respectfully
requests that this Court grant reconsideration in this case.
Respectfully submitted,
/s/ Kristen Jernigan
KRISTEN JERNIGAN
State Bar Number 90001898
207 S. Austin Ave.
Georgetown, Texas
(512) 904-0123
(512) 931-3650 (fax)
Kristen@txcrimapp.com
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the foregoing Appellant’s
Motion for Reconsideration En Banc was mailed to Bob Odom at the Bell County
District Attorney’s Office, 1200 Huey Road, Belton, Texas 76513, on October 27,
2015.
/s/ Kristen Jernigan
Kristen Jernigan
7
CERTIFICATE OF WORD COUNT
The undersigned hereby certifies that the foregoing document consists of
1,433 words in compliance with Texas Rule of Appellate Procedure 9.4.
______/s/ Kristen Jernigan______________
Kristen Jernigan
CERTIFICATE OF WORD COUNT
The undersigned hereby certifies that the foregoing document consists of
1,327 words in compliance with Texas Rule of Appellate Procedure 9.4.
______/s/ Kristen Jernigan______________
Kristen Jernigan
8
Eugene Kelly Wolfenberger v. State
Combined Opinion