PD-1423-15
PD-1423-15 COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 11/5/2015 11:12:53 AM
Accepted 11/5/2015 3:03:52 PM
ABEL ACOSTA
NO. _____________ PD CLERK
IN THE
COURT OF CRIMINAL
APPEALS
OF TEXAS
___________________________________________
EX PARTE
TULIO WILFREDO ESCOBAR
Petitioner,
_________________________________________________________
Petition in Cause No. 1329944 from the
ST
351 District Court of Harris County, Texas and
the Court of Appeals for the
1ST District of Texas
_________________________________________________________
PETITION FOR DISCRETIONARY REVIEW
_________________________________________________________
TOM ABBATE
440 LOUISIANA ST, STE 200
HOUSTON, TX 77002
T: 713.223.0404
F: 800.501.3088
tom@tomabbatelaw.com
SBOT # 24072501
November 5, 2015
ATTORNEY FOR PETITIONER
IDENTITIES OF PARTIES AND COUNSEL
PETITIONER: MR. TULIO ESCOBAR
PRESIDING JUDGE AT PLEA: HON. SUZANNE STOVALL
351ST District Court
Harris County Criminal Justice Center
1201 Franklin, 14th Floor
Houston, Texas 77002
(713) 755-5620
PROSECUTOR AT PLEA: MR. L. BAILY
Assistant District Attorney
Harris Co District Attorney's Office
1201 Franklin, Suite 600
Houston, Texas 77002
(713) 755-5800
PLEA COUNSEL: MR. RIGOBERTO RODRIGUEZ
2120 S. Wayside
Houston Texas 77023
(713) 921-1144
HABEAS COUNSEL: MR. JUSTIN HARRIS
405 Main St. Ste 450
Houston, Texas 77002
(713) 222-6102
MR. TOM ABBATE
440 Louisiana, Ste 200
Houston, Texas 77002
(713)-223-0404
HABEAS COUNSEL FOR STATE: MS. LISA COLLINS
Assistant District Attorney
Harris Co District Attorney's Office
1201 Franklin, Suite 600
Houston, Texas 77002
(713) 755-5800
2
PRESIDING JUDGE ON HABEAS: HON. MARK KENT ELLIS
351ST District Court
Harris County Criminal Justice Center
1201 Franklin, 14th Floor
Houston, Texas 77002
(713) 755-5620
3
TABLE OF CONTENTS
IDENTITIES OF PARTIES AND COUNSEL .........................................................2
INDEX OF AUTHORITIES......................................................................................5
STATEMENT REGARDING ORAL ARGUMENT ...............................................7
STATEMENT OF THE CASE ..................................................................................7
STATEMENT OF PROCEDURAL HISTORY........................................................8
QUESTION PRESENTED FOR REVIEW ..............................................................9
REASON FOR REVIEW ..........................................................................................9
PRAYER FOR RELIEF ..........................................................................................16
CERTIFICATE OF SERVICE ................................................................................17
CERTIFICATE OF COMPLIANCE .......................................................................18
APPENDIX ..............................................................................................................18
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INDEX OF AUTHORITIES
Cases
Aliff v. State, 627 S.W.2d 166 (Tex. Crim. App. 1982) .......................................................... 10, 11
Arizona v. Gant, 556 U.S. 332 (2009) .......................................................................................... 10
Arreola v. State, 207 S.W.3d 387 (Tex. App.—Houston [1st Dist.] 2006) .................................. 14
Aviles v. State, 04-11-00877-CR (Tex. App.— San Antonio 2014) ............................................. 13
Aviles v. State, 385 S.W.3d 110 (Tex. App.— San Antonio 2012) .................................. 11, 12, 15
Aviles v. Texas, 134 S.Ct. 902 (2014) ............................................................................... 11, 12, 15
Beeman v. State 86 S.W.3d 613 (Tex. Crim. App. 2002) ............................................................. 12
Boykin v. Alabama, 395 U.S. 238 (1969) ..................................................................................... 13
Brady v. United States, 397 U.S. 742 (1970) ................................................................................ 13
Edwards v. State, 921 S.W.2d 477 (Tex. App.—Houston [1st Dist.] 1996) ................................ 14
Ex parte Escobar, 01-15-00154-CR (Tex. App. – Houston [1st Dist.] October 6, 2015) ............. 16
Ex parte Karlson, 282 S.W.3d 118 (Tex. App.—Fort Worth 2009) ............................................ 14
Ex parte Morrow, 952 S.W.2d 530 (Tex. Crim. App. 1997) .................................................. 14, 16
Kniatt v. State, 206 S.W.3d 657 (Tex. Crim. App. 2006) ............................................................. 13
Martinez v. State, 981 S.W.2d 195 (Tex. Crim. App. 1998) ........................................................ 13
Missouri v. McNeely, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013) ....................................... 10, 11, 16
Schmerber v. California, 384 U.S. 757 (1966) ....................................................................... 10, 15
State v. Laird, 38 S.W.3d 707 (Tex. App.—Austin 2000) ........................................................... 11
Walter v. State, 28 S.W.3d 538 (Tex.Crim.App. 2000) ................................................................ 10
Weems v. State, 2014 WL 2532299 .............................................................................................. 13
Wiede v. State, 214 S.W.3d 17 (Tex.Crim.App. 2007) ................................................................. 10
Statutes
Tex. Transp. Code Ann. § 724.012 ............................................................................................... 15
Rules
TEX. R. APP. P. 44.2.............................................................................................................. 10, 16
Constitutional Provisions
U.S. CONST. amend. IV .............................................................................................................. 10
5
NO. _____________ PD
IN THE
COURT OF CRIMINAL
APPEALS
OF TEXAS
___________________________________________
EX PARTE
TULIO WILFREDO ESCOBAR
Petitioner,
_________________________________________________________
Petition in Cause No. 1329944 from the
ST
351 District Court of Harris County, Texas and
the Court of Appeals for the
1ST District of Texas
__________________________________________________________
PETITION OF DISCRETIONARY REIVEW
TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL
APPEALS OF TEXAS
Tulio Escobar, petitions the Court to review the judgment affirming
The denial of his Application for Writ of Habeas Corpus
Pursuant to Article 11.072 of the Texas Code of Criminal Procedure
6
STATEMENT REGARDING ORAL ARGUMENT
Oral argument would assist to resolve whether the evidence was legally
sufficient to support the conviction obtained against the Petitioner in this case.
STATEMENT OF THE CASE
On May 2, 2012, Petitioner pleaded guilty to the third-degree felony offense
of driving while intoxicated–third offense. Pursuant to an agreed plea bargain, the
trial court assessed Petitioner’s punishment at five years’ confinement in the
Institutional Division of the Texas Department of Criminal Justice and ten days’
confinement in the Harris County jail, but suspended confinement and placed
Petitioner on community supervision for three years.
On October 6, 2014, the State filed a motion to revoke Petitioner’s community
supervision on the grounds that Petitioner violated the terms of his supervision by:
(1) driving or operating a motor vehicle while his license was suspended and driving
or operating a motor vehicle on two separate occasions without a valid driver’s
license, as evidenced by Petitioner’s admission to a polygraph examiner; (2) driving
or operating a motor vehicle on two separate occasions without a valid driver’s
license, as evidenced by Petitioner’s admission to his community supervision
officer; and (3) failing to maintain financial responsibility.
Petitioner filed an application for writ of habeas corpus on November 12,
2014, alleging that: (1) the motion to revoke violated his Fifth Amendment right
7
against self-incrimination; (2) his guilty plea was involuntary due to a Fourth
Amendment violation; and (3) his plea counsel was ineffective because he allowed
Escobar to enter an involuntary plea.
STATEMENT OF PROCEDURAL HISTORY
Based on the record and the affidavits submitted, the habeas court found that
Petitioner’s plea was voluntary and that Petitioner failed to demonstrate that his Fifth
Amendment right against self-incrimination was violated because there was no
evidence that Petitioner invoked this right.
The court of appeals rendered its decision affirming Petitioner’s conviction
on October 6, 2015. Petitioner did not file a motion for rehearing, and the decision
of the court of appeals became its final ruling on October 21, 2015. This petition
was then filed with the clerk of the court of appeals within 30 days after such final
ruling.
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QUESTION PRESENTED FOR REVIEW
Was Petitioner’s plea involuntary due to the illegality of the seizure
in light of Missouri v. McNeely?
REASON FOR REVIEW
The Law Regarding the Fourth Amendment Generally
The Fourth Amendment provides that “[t]he right of the people to be secure
in their persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated, and no Warrants shall issue, but upon probable cause.”
U.S. CONST. amend. IV; Wiede v. State, 214 S.W.3d 17, 24 (Tex.Crim.App. 2007).
The Supreme Court has held that a warrantless search of the person is reasonable
only if it falls within a recognized exception. See United States v. Robinson, 414
U.S. 218, 224 (1973); Arizona v. Gant, 556 U.S. 332, 338 (2009); Walter v. State,
28 S.W.3d 538, 541 (Tex.Crim.App. 2000). Exigent circumstances is one such well-
recognized exception. Missouri v. McNeely, 133 S.Ct. 1552, 1562, 185 L.Ed.2d 696
(2013). If an appellate court determines that a defendant’s Fourth Amendment rights
were violated, then it must reverse the judgment unless it determines beyond a
reasonable doubt that the error did not contribute to the conviction or punishment.
TEX. R. APP. P. 44.2(a).
9
The Law Regarding Exigent Circumstances and Blood Specimens Obtained
Without a Warrant in DWI Investigations
The taking of a blood sample is a search and seizure under both the federal
and Texas constitutions. Aliff v. State, 627 S.W.2d 166, 169 (Tex. Crim. App. 1982).
However, under certain circumstances, a blood sample taken without a warrant is
not an unreasonable search and seizure, and therefore comports with constitutional
requirements. Schmerber v. California, 384 U.S. 757, 770–71 (1966). Police officers
may constitutionally obtain a blood sample without a warrant or consent if they have
probable cause, exigent circumstances, and a reasonable method of extraction. Id.;
see Aliff, 627 S.W.2d at 169– 70). The fact that alcohol dissipates quickly in the
blood has been held to constitute exigent circumstances. Id. at 170 (holding that
taking a blood sample from a person under arrest does not violate the constitution
when officers have probable cause to arrest because alcohol dissipates from the
blood stream at a rapid rate); State v. Laird, 38 S.W.3d 707, 713 (Tex. App.—Austin
2000, pet. ref'd).
The United States Supreme Court recently held, however, that the fact that
alcohol rapidly dissipates from the bloodstream does not create a per se exigent
circumstance. McNeely, 133 S.Ct. at 1562, 185 L.Ed.2d 696. Instead, the dissipation
of alcohol may be a factor, among others, in the exigency analysis under the larger
totality of the circumstances test. See id. Specifically, the Court held that the trial
10
court should conduct a "careful case-by-case assessment of exigency and ... [that i]n
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. at 1561.
The Law Regarding Mandatory Blood Specimens Obtained Without a Warrant
in DWI Investigations
Further, the mandatory blood draw provision of the Transportation Code has
been previously used to justify involuntary, warrantless blood draws. See Aviles v.
State, 385 S.W.3d 110, 116 (Tex. App. — San Antonio 2012), vacated, 134 S.Ct.
902 (2014). In that case, the Court of Appeals held that a warrantless blood draw of
a DWI suspect that was conducted according to the prescriptions of the
Transportation Code did not violate the suspect's rights under the Fourth
Amendment. In so holding, it quoted Beeman v. State for the proposition that the
implied consent law allows officers to draw blood "in certain limited circumstances
even without a search warrant." 86 S.W.3d 613, 615 (Tex. Crim. App. 2002); Aviles,
385 S.W.3d at 115. The court reasoned that "[t]his situation, as outlined in section
724.012, is one of the 'circumstances' the Texas Court of Criminal Appeals has held
where blood may be drawn without a search warrant." Id. at 116 (citing Beeman, 86
S.W.3d at 616).
11
The court concluded that whether the officer could have obtained a warrant
before authorizing the blood draw was "immaterial given the mandate of section
724.012(b)(3)(B)." Id. at 116. Thus, the court held that "the warrantless seizure of
Aviles's blood was conducted according to the prescriptions of the Transportation
Code, and without violating Aviles's Fourth Amendment rights." Id. The Texas
Court of Criminal Appeals denied Aviles's petition for discretionary review.
However, on January 13, 2014, the Supreme Court granted certiorari and
vacated the Court of Appeals’ judgment. Aviles v. Texas, 134 S.Ct. 902 (2014). It
then remanded the case "for further consideration in light of Missouri v. McNeely."
Id. On remand, the Court of Appeals held “[l]ooking at the mandatory blood draw
statute and the implied consent statute, we held in Weems these statutes clearly create
categorical or per se rules the McNeely court held were not permissible exceptions
to the Fourth Amendment's warrant requirement.” Aviles v. State, 04-11-00877-CR
(Tex. App. — San Antonio August 6, 2014) (citing Weems v. State, 2014 WL
2532299, at *8).
The Law Regarding Voluntariness of Pleas Generally
A guilty plea constitutes a waiver of three constitutional rights: the right to a
jury trial, the right to confront one's accusers, and the right not to incriminate oneself.
Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006) (citing Boykin v.
Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274 (1969) ).
12
Accordingly, due process of law requires that guilty pleas be knowingly,
intelligently, and voluntarily made. Kniatt, 206 S.W.3d at 664. To be "voluntary,"
a guilty plea must be the expression of the defendant's own free will and not obtained
by threats, misrepresentations, or improper promises. Id. (citing Brady v. United
States, 397 U.S. 742, 755, 90 S.Ct. 1463, 1472, 25 L.Ed.2d 747 (1970)). When
assessing the voluntariness of a guilty plea, courts examine the entire record and
consider all of the relevant circumstances surrounding the plea. Martinez v. State,
981 S.W.2d 195, 197 (Tex. Crim. App. 1998) (per curium).
A record that indicates that a trial court properly admonished a defendant
presents a prima facie showing that the guilty plea was made voluntarily and
knowingly. See Id; Arreola v. State, 207 S.W.3d 387, 391 (Tex. App.—Houston
[1st Dist.] 2006, no pet.). When the record presents a prima facie showing that the
applicant entered their plea voluntarily and knowingly, the burden shifts to the
defendant to show that they entered the plea without understanding the consequences
of the plea. Edwards v. State, 921 S.W.2d 477, 479 (Tex. App.—Houston [1st Dist.]
1996, no pet.).
The test for determining the validity of a plea is whether it represents a
voluntary and intelligent choice among alternative courses of action open to the
defendant. Ex parte Karlson, 282 S.W.3d 118, 129 (Tex. App.—Fort Worth 2009,
pet. ref’d). A guilty plea made by a defendant fully aware of the plea’s direct
13
consequences must stand unless it was induced by threats, misrepresentations, or
promises that are by their nature improper. Ex parte Morrow, 952 S.W.2d 530, 534–
35 (Tex. Crim. App. 1997), cert. denied, 525 U.S. 810 (1998).
Analysis
As stated previously, a deputy with Harris County Constable Precinct One
arrested Petitioner for Driving While Intoxicated after Petitioner was found to be
asleep while seated behind the steering wheel of his vehicle with the engine running.
Petitioner was promptly arrested without being offered the opportunity to perform
any Standardized Field Sobriety Tests. After being transported to the police station,
deputies discovered that Petitioner had been twice previously convicted of the
offense of Driving While Intoxicated. Subsequently, and pursuant to Texas
Transportation Code Section 724.012, a “mandatory” blood draw was conducted on
Applicant without his consent and without a valid search warrant. See Tex. Transp.
Code Ann. § 724.012(b)(1). Analysis of Petitioner’s blood revealed a blood alcohol
content in excess of .08g/100mL. No other evidence of Petitioner’s intoxication was
obtained.
Although McNeely had not been decided at the time Petitioner entered his
plea, it is not new law that may or may not be retroactively applied. Rather, this
ruling is at most a clarification of existing law. Schmerber, 384 U.S. at 770–71. For
the last forty-eight years, it has been constitutionally permissible for police officers
14
to obtain a blood sample without a warrant or consent if they have probable cause,
exigent circumstances, and a reasonable method of extraction. Id. However, Texas
courts have erroneously assumed that the mandatory draw provisions of the
Transportation Code comported with constitutional requirements of the Fourth
Amendment.
Further, as the Aviles case’s procedural history demonstrates, the Supreme
Court’s ruling in McNeely applies to convictions obtained prior to its 2013 decision.
See Aviles v. State, 385 S.W.3d 110, 116 (Tex. App. — San Antonio 2012), vacated,
134 S.Ct. 902 (2014)(emph added). Therefore, because McNeely is merely a
clarification designed to correct the misconceptions of various state courts, its
holding entitles Applicant to relief in this case.
The Court of Appeals held that Petitioner waived this issue as no motion to
suppress was ever filed. Ex parte Escobar, 01-15-00154-CR (Tex. App. – Houston
[1st Dist.] October 6, 2015). However, that holding only serves to highlight the
problem with the case at bar, namely, that Petitioner’s plea was rendered involuntary
due to the erroneous assumptions of the appellate courts of this state. If Petitioner
had filed a motion to suppress, it would have been denied as the court would have
held that the evidence was seized pursuant to an exception to the warrant
requirement. Had Petitioner proceeded to trial, been convicted, and then appealed
that denial, as the Court of Appeals argued he should have, reversal would only have
15
come if the McNeely clarification had come prior to the Court of Appeals’ opinion,
or the denial of a subsequent petition for discretionary review.
The Court of Appeals’ holding of waiver, therefore, implicitly dismisses the
violation of Petitioner’s, as well as many others’, Fourth Amendment rights as
irrelevant. This is fundamentally unfair as the defendants in these cases were not
fully aware of the direct consequences of their plea, namely, that they were giving
up valid rights to challenge evidence seized in violation of the Fourth Amendment.
Morrow, 952 S.W.2d at 534–35; McNeely, 133 S.Ct. at 1562, 185 L.Ed.2d 696.
Finally, the threshold for harm stemming from a Fourth Amendment violation
is that reversal is required unless it is determined beyond a reasonable doubt that the
error did not contribute to the conviction or punishment. TEX. R. APP. P. 44.2(a).
Petitioner argues that rule should apply to the case at bar. Under the clarification
embraced in McNeely, Applicant’s Fourth Amendment rights were clearly violated.
Further, that violation clearly contributed to his conviction as it was the only
evidence of intoxication obtained. Moreover, had this violation not occurred, and
had Texas law not promoted an invalid exception to the warrant requirement,
Petitioner would not have entered a plea of guilty in this case.
PRAYER FOR RELIEF
ACCORDINGLY, this Court should GRANT this PETITION FOR
DISCRETIONARY REVIEW and ORDER briefs on the merits to answer the
16
question of whether the evidence against the Petitioner was legally sufficient to
support his conviction.
Petitioner further prays for all relief to which he may be entitled.
Respectfully submitted,
______________________________
TOM ABBATE
440 LOUISIANA ST, STE 200
HOUSTON, TX 77002
T: 713.223.0404
F: 800.501.3088
tom@tomabbatelaw.com
SBOT # 24072501
ATTORNEY FOR PETITIONER
CERTIFICATE OF SERVICE
This is to certify that on the day of NOVEMBER 5, 2015 a true and correct
copy of the above and foregoing Petition for Discretionary Review was served on
the Harris County District Attorney’s Office, 1201 Franklin, Suite 600, Houston,
Texas 77002, by FAX (713.755.5809).
______________________________
TOM ABBATE
17
CERTIFICATE OF COMPLIANCE
I hereby certify that there are 2919 words contained in this document.
______________________________
TOM ABBATE
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APPENDIX
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Escobar, Ex Parte Tulio Wilfredo
Combined Opinion