                                                                                   ACCEPTED
                                                                              03-14-00588-CR
                                                                                     4737233
                                                                    THIRD COURT OF APPEALS
                                                                               AUSTIN, TEXAS
                                                                          4/1/2015 7:07:19 PM
                                                                            JEFFREY D. KYLE
                                                                                       CLERK




                                                              FILED IN
                                                       3rd COURT OF APPEALS
                                                           AUSTIN, TEXAS
                     CAUSE NO. 03-14-00588-CR          4/1/2015 7:07:19 PM
                                                         JEFFREY D. KYLE
                                                               Clerk
                                 In The

                             Court OfAppeals

                         Third District Of Texas

                              Austin, Texas



STATE OF TEXAS                      §                    APPELLANT

                                    §

HECTOR MARTINEZ                     §                       APPELLEE


      APPEAL FROM THE 427TH JUDICIAL DISTRICT COURT

                      TRAVIS COUNTY, TEXAS

                    CAUSE NO. D-1-DC-13-900228


                       DEFENDANT'S BRIEF


                                    John N . de Ia Vifia
                                    Attorney and Counselor at Law
                                    State Bar No. 24078407
                                    702 Rio Grande
                                    Austin, Texas 78701
                                    512.897.3325
                                    Fax 512.501.6307
                                    Delavina.law@gmail.com
                                    www.delavinalaw.com

Oral argument is requested
                   Identity of Parties and Counsel

Trial Judge:                   Jim Coronado
                               427th Judicial District Court
                               P.O. Box 1748
                               Austin, Texas 78767

                               Leon (Leo) Grizzard
                               Magistrate Judge
                               P.O. Box 1748
                               Austin, Texas 78767

Trial Counsel for the State:    Kelley Geir and Willis Chambers
                               Travis County District Attorney's Office
                               P.O. Box 1748
                               Austin, Texas 78767

Defendant I Appellee:          Hector Martinez

Counsel for                    John N. de Ia Viiia
Defendant/Appellee:            702 Rio Grande
                               Austin, Texas 78701
                                       Table of Contents

Identity of Parties and Counsel. ... ............................................... i
                      ..                                                                             . .. .
I n d ex o fA uthor1t1es.........................................................................111, 1v
Statement of the Case.............................................................................v
Statement ofFacts..................................................................................2
Summary of the Defendant's Argument.. ..............................................6
Argument. .............................................................................................. ?
Point One: The circumstances surrounding the Defendant's behavior
and medical intervention did not objectively rise to the standard of true
exigency ................................................................................................. 8
Point Two: The mandatory blood draw statute does not circumvent the
4th Amendment's requirement for a warrant.. ...................................... l6
Point Three: A person has an absolute right to refuse a test and it is
explicit that implied consent is not an exception to the 4th
Amendment's requirement for a warrant.. ........................................... 19
Point Four: McNeely applies retroactively, the State ignores the
standard of review, and the State's Point Four can be distinguished..21
Point Five: Good faith under the federal exclusionary rule does not
  apply in the instant case .....................................................................28
Prayer...................................................................................................29
Certificate of Compliance and Service................................................. 30




                                                ii
                                      Index of Authorities

 Cases
Bowman v. State, 2015 WL 557205 ...............................................22, 23
Carmouche v. State, 10 S.W.3d 323, 327-8 (Tex.Crim.App.2000).....26
Cole v. State, 2014 WL 7183859 ...................................................23, 25
Douds v. State, 434 S.W. 3d 842 (Tex.App.-Houston [14th Dist.] 2014,
pet. granted ....................................................................................20, 23
Griffith v. Kentucky, 479 U.S. 314, 326-38, 107 S.Ct. 708, 93 L.Ed.2d
649 ( 1987)............................................................................................25
Gutierrez v. State, 221 S.W. 3d 680, 685 (Tex.Crim.App.2007) .......... 9
Holidy v. State, No- 06-13-00261-CR, 2014 WL 1722171 (Tex.App.-
Texarkana Apr. 30, 2014, pet granted) (mem. Op., not designated for
publication)...........................................................................................20
Houghton v. Wyoming, 526 U.S. at 300, 119 S.Ct. 1297, 143 L.Ed.2d
408 (1999) ............................................................................................ 17
Illinois v. Krull, 480 U.S. 340, 107 S.Ct. 1160, 94 L. Ed. 2d 364
(1987) ...................................................................................................28
State v. Johnson, 871 S.W.2d. 744, 750-51 (Tex. Crim. App. 1994).. 26
Maryland v. King, _U.S._, 133 S.Ct. 1958, 186 L. Ed. 2d 1
(2013) ............................................................................................. 17, 18
Missouri v. McNeely, 569 U.S._ _ , 133 S. Ct. 1552, 1561, 185 L.Ed.
2d 696 (2013) ............................................... .4, 5, 14, 16, 18, 22, 23, 24
Miller v. State, 393 S.W. 3d 255, 266 (Tex.Crim.App.2012) ..............20
Reeder v. State, 428 S.W.3d 924 (Tex.App.-Texarkana 2014, pet.
granted) ................................................................................................ 20
Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908
(1966)...................................................................................... 14, 15
Schneckloth v. Bustamante, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d
854 (1973) ...................................................................................... 19, 20
Shepherd v. State, 273 S. W.3d 681, 684 (Tex. Crim. App. 2008)......... 7
Sutherland v. State, 436 S.W.3d 842 (Tex.App-Amarillo 2014, no
pet.).......................................................................................................20
Venn v. State, 85 Tex.Crim. 633,218 S.W. 1060 (1920) .................... .17
State v. Villarreal, No. PD-0306-14, 2014 Tex. Crim. App. LEXIS
1898 (Tex. Crim. App. Nov. 26, 2014) ................ 6, 7, 16, 18, 19, 20,25
Weems v. State, 434 S.W.3d 655 (Tex.App.-San Antonio, pet.
granted)..................................................................................... 15, 20,28

                                                 iii
Wehrenberg v. State, 416 S.W.3d 458, 467-70 (Tex. Crim. App.
2013) ...............................................................................................26, 27

 Statutes
Tex. Code. Crim. Proc. art. 38.23 ......................................21, 22, 27, 28
Tex. Penal Code §49.04........ ./...............................................................v
Tex. Penal Code §49.09.........................................................................v
Tex. Transp. Code 724.002(b )......................................................... 5, 22
Tex Transp. Code §724.011(a) ................................................... 5, 19, 22




                                                iv
                          Statement of the Case
A grand jury indicted the Defendant for driving while intoxicated with two

prior convictions. CR3-4; Tex. Penal Code § 49.04, 49.09(b)(2). The trial

court granted the Defendant's motion to suprres the blood test results, and

State gave notice of appeal. CR 61-70. On December 31 8 \ 2014, the State

filed its brief in this case.




                                     v
                      CAUSE NO. 03-14-00588-CR

                                   In The

                             Court OfAppeals

                           Third District Of Texas

                               Austin, Texas



STATE OF TEXAS                        §                    APPELLANT

                                      §

HECTOR MARTINEZ                       §                       APPELLEE


        APPEAL FROM THE 427™ JUDICIAL DISTRICT COURT

                        TRAVIS COUNTY, TEXAS

                     CAUSE NO. D-1-DC-13-900228


                         DEFENDANT'S BRIEF


To the Honorable Third Court of Appeals:

       Now Comes the Defendant, Hector Martinez, and files this brief, and

in support thereof respectfully shows the following:




State v. Martinez                     1
APPELLATE CAUSE NO. 03-14-00588-CR
                            Statement of Facts

      On March 15th, 2013, at around 12:25 a.m. APD Officer Marcos

Johnson was dispatched to 10108 Shinnecock Hills Drive, to investigate a

potential prowler. 2RR 9, 12, 29. Officer Johnson arrived at the scene

roughly 10 minutes after the initial 911 call. 2RR 13-14. Upon arrival

Officer Johnson observed Defendant in the driver's seat of a sports utility

vehicle being confronted by a neighborhood security guard. RR 13-14, 21,

74.   Officer Johnson then approached Defendant and detained him in

handcuffs. 2RR 15. Officer Johnson admitted that prior to approaching

Defendant he determined the basis of the call was not violent in nature. 2RR

48.

       After detaining Defendant Officer Johnson observed Defendant

exhibiting potential signs intoxication. 2RR 17-18, 30. As a result of his

observations, around 12:41 a.m., Officer Johnson administered Standardized

Field Sobriety Tests (SFSTs) on Defendant as part a DWI investigation.

2RR 29.      After administering the SFSTs, at around 1:00 a.m., Officer

Johnson placed Defendant under arrest for Driving While Intoxicated. 2RR

29. Once under arrest Officer Johnson read Defendant his DIC-24 statutory

warnings, to which Defendant refused to provide or consent to the taking of

his breath or blood. 2RR 31.
State v. Martinez                    2
APPELLATE CAUSE NO. 03-14-00588-CR
      After arresting Defendant Officer Johnson took him to "a few places",

before having his blood drawn. 2RR 30. Specifically, Officer Johnson and

Defendant arrived to the APD BAT Bus 1 around 1:45 a.m., with the intent to

turn Defendant over to the APD DWI Task Force for transport. 2RR 30-31,

63. While at the Bat Bus Officer Johnson discovered that Defendant had

two prior DWI convictions. 2RR 30-31, 63. Due to Defendant's felony

enhancement, Officer Johnson transported Defendant to the Travis County

Jail for a mandatory blood draw that "had" to be administered. 2RR 37, 64.

       Officer Johnson and Defendant arrived at the "Sally Port" located at

APD's booking facility downtown at about 2:15 a.m. 2RR 67, 71. After

arriving Officer Johnson observed Defendant acting strangely in the

backseat of his patrol vehicle, noting that Defendant was nonresponsive and

breathing in a peculiar manner. 2RR 30. Officer Johnson then called EMS

to assess Defendant's condition, and out of precaution EMS determined

Defendant should be transported to Breckenridge Hospital.               2RR 66-67.

Before and during transport Defendant wrestled with Officer Johnson and

EMS and was sedated by EMS as a result.             2RR 66-67. Dispatch records

reflect that Officer Johnson and EMS were en route to Breckenridge with the


1Please note that Officer Johnson was unsure what the acronym "BAT" in the term
BAT Bus stood for, stating verbatim, "I guess it's the blood alcohol testing bus." 2RR
62.
State v. Martinez                         3
APPELLATE CAUSE NO. 03-14-00588-CR
Defendant at around 3:00 a.m. 2RR 31, 67, 71. Defendant's blood was

drawn at Breckenridge at approximately 3:34 a.m. Id. In total two and one-

half (2   ~   ) hours elapsed from the moment the Defendant was arrested to the

time he had his blood drawn at Breckenridge Hospital. 2RR 29, 31, 67, 71.

      At the time of this investigation Officer Johnson had 5 months of

experience with APD and prior to this incident never obtained a blood

search warrant for DWI investigation. 2RR 33, 38-41. During the course of

the investigation Officer Johnson lacked the intent to, and did not attempt

acquire, a search warrant for the Defendant's blood. 2RR 36-37, 40, 59.

Officer Johnson relied on "department policy" as the reason for his inaction.

2RR 37-38, 40, 59. Officer Johnson admitted that if he wanted to obtain a

warrant to search the Defendant's blood that a magistrate would "to the best

of his knowledge" be available to do so. 2 2RR 36. Further, Officer Johnson

stated that he was aware of alternative methods of obtaining search warrants

in Travis County, particularly, via telephone. 2RR 58.

          The Defendant filed a motion to suppress blood evidence, relying on

the Fourth Amendment, due to a lack of warrant and a lack of a valid

warrant exception. Supp. CR 4-6. The Defendant's arguments were Officer

Johnson's lack of obtaining a warrant, even though he had ample time to do

2 Officer Johnson's knowledge of obtaining blood search warrants was derived after
this incident and after the Supreme Court's ruling in McNeely. 2RR 39.
State v. Martinez                        4
APPELLATE CAUSE NO. 03-14-00588-CR
so, precluded the evidence, and that the implied consent statute runs afoul

the Fourth Amendment and the Supreme Court's ruling in McNeely. 3RR 7-

8.

      The State challenged the Defendant's motion arguing that the blood

draw was justified under the exigent circumstances exception to the warrant

requirement and that the statute that mandated the blood draw, Tex. Transp.

Code § 724.002(b), is constitutionally reasonable under the Fourth

Amendment. CR 45; 3RR7; CR40-44. That State also contended that the

blood evidence was admissible due to the implied consent law per Tex.

Transp. Code § 724.011(a). CR 40-41. Lastly, the State argued that the

Texas exclusionary rule did not apply to the search, and the federal

exclusionary rule did not bar the admission of the evidence, because of good

faith reliance.

       After hearing, the magistrate court held in favor of the Defendant

suppressing the blood test for the following reasons; the situation posed by

the medical intervention did not constitute true exigency, if admitted the

blood test would override the Constitution's requirement for a search

warrant, and implied consent does not qualify as an exception to the warrant

requirement. CR 61-63.



State v. Martinez                    5
APPELLATE CAUSE NO. 03-14-00588-CR
      The presiding judge signed and adopted the magistrate court's

findings of fact and granted the motion to suppress the blood evidence. CR

64. The State appealed this decision. CR 65-70.

                 Summary of the Defendant's Argument

      POINT ONE:          The circumstances surrounding the Defendant's

behavior and medical intervention did not objectively rise to the standard of

true exigency. Put simply, the Defendant was in custody for roughly two and

a half hours (2 'li) and Officer Johnson never intended to, or attempted to,

obtain a blood search warrant even though he roughly had two and a half

hours to do so, relying solely on policy as reason for a warrantless search.

      POINT TWO:          Pursuant to the Court of Criminal Appeals ruling

in Villarreal, and the rulings of many other Courts throughout Texas, it is

explicit that the mandatory blood draw statute does not circumvent the 4th

Amendment's requirement for a warrant. The State's point lacks merit.

      POINT THREE: The Defendant never consented to the blood draw

and a person has an absolute right to refuse a test and it is explicit that

implied consent is not an exception to the 4th Amendment's requirement for

a warrant.. The State's point lacks merit.




State v. Martinez                  6
APPELLATE CAUSE NO. 03-14-00588-CR
      POINT FOUR:          Texas statutes and recent case law does not carve

out a de facto "good faith" exception when a police officer relies on a law

that is later found to be unconstitutional.

      POINT FIVE:          Good faith under the federal exclusionary rule

does not apply in this situation because Texas statute offers an individual

more protection than its federal counterpart.

                             Standard of Review

      The appellate court reviews a ruling on a motion to suppress for an

abuse of discretion.     The appellate court views the facts in light most

favorable to the trial court's decision. The appellate court reviews de novo

the trial court's application of the law of search and seizure to those facts.

Shepherd v. State, 273 S.W.3d 681, 684 (Tex. Crim. App. 2008).

                                   Argument

       The Texas Court of Criminal Appeals held that a warrantless blood

draw conducted pursuant to a warrantless blood draw statute violates the 4th

Amendment, when the warrantless search does not fall under an exception to

the warrant requirement. The Court also found that implied consent refused

by a suspect does not constitute free and voluntary consent under the Fourth

Amendment. State v. Villarreal, No. PD-0306-14, 2014 Tex. Crim. App.

LEXIS 1898 (Tex. Crim. App. Nov. 26, 2014).

State v. Martinez                        7
APPELLATE CAUSE NO. 03-14-00588-CR
        The State notes in its brief the arguments made in State's points Two

 and Three are directly contradicted by the ruling in Villarreal. For the sake

 of brevity Defendant will defer the to ruling in Villarreal regarding State's

 points Two and Three and asserts they are without merit. The Defendant's

 substantive focus will be on State's points, One, Four, and Five.

 Point One:         The exigent circumstance exception to the warrant

 requirement does not apply in this case.

        In the summary of its frrst argument the State articulates its point as

 follows, "exigent circumstances exception to the warrant requirement

 applies in this case ... not arguing solely based on the dissipation of alcohol

 in blood. Instead there was an actual medical emergency and combative

 defendant ... ate up time and the office away from the jail and magistrate." 3

 State's Brief at 7.

               1.      Exigent circumstances

        The exigent circumstances exception to the warrant requirement does

not apply in this case. In order for the exigent circumstances exception to the

warrant requirement to trigger there typically must be one of the three


 3 The State in its summary seems to bootstrap true medical exigency with exigency
 based on the dissipation of blood in alcohol stating the situation was "an actual
 medical emergency" and the exigency is not "based solely on the dissipation of
 alcohol in the blood", but then refers to "eaten up time" and "the officer being taken
 away from the jail and magistrate". Defendant will address these issues separately.
 State v. Martinez                           8
 APPELLATE CAUSE NO.     03~14-00588-CR
following categories: (1) "providing aid or assistance to persons whom law

enforcement reasonably believes are in need of assistance; (2) "protecting

police officers from persons whom they reasonably believe to be present,

armed, and dangerous"; and (3) "preventing the destruction of evidence or

contraband." Gutierrez v. State, 221 S.W. 3d 680, 685 (Tex.Crim.App.2007).

In the instant case the State seems to be arguing the third, specifically the

dissipation of blood due to a "combative" defendant.

        In its findings of fact and conclusions of law, the trial court held that

there were no exigent circumstances, stating:

        " ... med'IcaI intervention did not present exigent

        circumstances which would have made a warrantless

        blood draw objectively reasonable. According to Officer

        Johnson's testimony, it would have been the same

        amount of time had a warrant been sought."

        The State claims that Officer Johnson's delay due to the Defendant's

odd behavior was so substantial that it "ate" into the time Officer Johnson

had to seek a warrant to search the Defendant's blood. However, once it was

established that no search warrant had been obtained the State never met its

burden to prove an exception to the warrant requirement to seize the

Defendant's blood.
 State v. Martinez                      9
 APPELLATE CAUSE NO. 03-14-00588-CR
       The State specifically points to the Record and time elapsed due to a

"medical emergency" as the reason behind Officer Johnson's failure to obtain

a warrant. As per Officer Johnson's estimate, the medical intervention cut 1

hour of time out of his investigation. However, Officer Johnson made it

quite clear that he never intended to obtain a warrant, and did not explore the

possibility of doing so. He merely parroted "policy" as the reason behind his

not seeking a warrant during the course of two and one-half hours.

       In more detail, the State claims that the Defendant's peculiar behavior

once arriving at the APD Sally Port constituted a medical emergency, and

that consequently Officer Johnson acted accordingly in going forward with a

warrantless blood draw. However, the notion the Defendant's behavior was a

medical emergency is not supported by the Record.            Referring to the

testimony of Officer Johnson, at no point does he claim that he was in fear

for the Defendant's life, nor does he claim the Defendant suffered injuries

requiring medical attention. Johnson simply stated that he called EMS merely

as a precautionary measure, and followed stating that the Defendant's

resistance was easily controlled after EMS sedated him via 5 milliliters of

Versed. 2RR 65-66. If anything, the Record reflects that EMS came to

Officer Johnson's aid solely to sedate the Defendant so a warrantless blood

draw could successfully be administered.

State v. Martinez                     10
APPELLATE CAUSE NO. 03-14-00588-CR
      The State also cites Officer Johnson claiming a warrant usually takes

45 minutes to an hour to obtain. 2RR 38-39. At the time of his testimony

Officer Johnson openly admitted that he never obtained a search warrant for

blood during the course of any investigation before Defendant's arrest. 2RR

38-39.     This testimony brings Johnson's familiarity with the process of

obtaining a warrant (at that time and based on his experience) directly into

question. Further, this lack of experience in obtaining blood warrants sheds

light on Johnson's credibility regarding the various options he had to obtain

a warrant.      The Record shows Johnson's testimony merely parroted

"process" and "procedure" regarding APD blood warrant policy as his

excuse for not obtaining a warrant. 2RR 36-37, 39-40, 59.

         Next, the State approaches the issue of something that "was not

explored in detail" during the scope of the suppression hearing in this case.

Particularly, how much longer it would take for Officer Johnson to obtain a

warrant for the Defendant's blood while at Breckenridge. Specifically, the

State claims there is no testimony pertaining to Officer Johnson ability to

communicate his need for a warrant to his corporal or a detective. This

argument is sheer speculation and merely a red herring.        The State is

attempting to testify on Officer Johnson's behalf as to his availability of

resources to contact other officers. The converse argument can easily be

State v. Martinez                     11
APPELLATE CAUSE NO. 03-14-00588-CR
made that there is no indication that he did not have access to a computer, or

a printer, or a phone to acquire a search warrant. At the bare minimum, the

Court can conclude that an officer of the law in Texas' capital city most

certainly had access to a radio. The one fact Officer Johnson did establish is

that he was full aware he could obtain a warrant via telephone at the time of

the Defendant's arrest, which he did not attempt to do. 2RR 58-59.

       The State then assumes that "even if' Officer Johnson obtained a

warrant while at Breckenridge he "would have had to wait for a corporal to

come pick it up and take it to the magistrate at the jail." This argument goes

on to claim that Officer Johnson established it takes up to 45 minutes to an

hour to obtain a warrant at the jail. State's Brief at 11. Here the State

implicitly claims that Officer Johnson's only opportunity to obtain a warrant

during the course of his investigation began the moment that he arrived at

Breckenridge Hospital at roughly 3:00 a.m.      2RR 68. However, Officer

Johnson had an opportunity to begin the process of obtaining a warrant when

he arrived at the BAT Bus and realized that the Defendant was charged with

his 3 rd or more DWI, at roughly 1:45 a.m. 2RR 67. Applying that timeframe

in accordance with Officer Johnson's testimony, had he begun the process to

obtain a warrant once discovering the Defendant was on his 3rd DWI arrest he



 State v. Martinez                    12
APPELLATE CAUSE NO. 03-14-00588-CR
would have been clear to draw the Defendant's blood in compliance with the

Fourth Amendment by, at the latest, 2:45 a.m. 4 2RR 38.

       The State also urges, "it does not appear that Officer Johnson spent

any part of the night standing around and wasting time." State's Brief at 11.

This argument assumes that Officer Marcos Johnson is the only set of boots

on the ground for the Austin Police Department, which currently boasts

approximately 1,800 sworn peace officers. 5 As supported by the Record,

Officer Johnson directly states that the process of obtaining a warrant

includes not only him, but also a detective or corporal that would take

paperwork to a magistrate for approval.           2RR 36, 59.        Considering the

Record, the Court can safely conclude that Officer Johnson failed to utilize

the resources available to him to obtain a warrant and request assistance in

his investigation.

       Therefore, m light most favorable to the trial court's finding, the

positions that an exigency exception did not exist and obtaining a warrant

would have taken a similar amount of time as the alleged medical




4 This calculation assumes that Officer Johnson's familiarity with the process of
obtaining a warrant at the time of Defendant's arrest is actually credible.
5 This statistic was taken from the City of Austin website, located at the following

URL https:J_/www.austintexa~ov /faq/how-many-sworn-officers-work-austin-
yolic~-dEWartment .
State v. Martinez                         13
APPELLATE CAUSE NO. 03-14-00588-CR
intervention are abundantly supported by the record, and the State's first

argument fails.

              ii.   Totality of the Circumstances

       The State contends that the trial court's holding regarding Officer

Johnson's decision to conduct a warrantless blood draw was unreasonable

fails on its face. In support of its argument the State points to language in the

Supreme Court's ruling in Missouri v. McNeely, 569 U.S._ , 133 S. Ct.

1552, 1561, 185 L. Ed. 2d 696 (2013). In McNeely, the Supreme Court held

that the totality of the circumstances must be considered when determining

when the of the exigency exception to the warrant requirement is triggered.

Id at 1552, 1561. However, the State failed to acknowledge the underlying

facts articulated in Schmerber v. California, 384 U.S. 757 (1966), the

precedent relied on in McNeely, dictating the "totality of the circumstances"

regarding nonconsensual warrantless blood draws. In Schmerber the suspect

was involved in a collision, suffered injuries worthy of a hospital visit, and

his blood drawn pursuant to a DWI investigation. McNeely at 1561.             In

contrast to Schmerber, the Defendant's case in totality lacked a collision,

significant injuries, and it can be concluded his trip to the hospital was geared

solely toward the prospect of sedating him to a point where blood sample for

BAC testing could be acquired. Further, the State compares the facts of the

State v. Martinez                  14
APPELLATE CAUSE NO. 03-14-00588-CR
Defendant's case to Schmerber, quoting McNeely, " ...an individual's alcohol

level gradually declines soon after he stops drinking, a significant delay in

testing will negatively affect the probative value of the results."        ld.

However, the State fails to take into consideration that Schmerber is almost

50 years old. At the time Schmerber was decided the arresting officer did not

have the wealth of resources Officer Johnson had to obtain a warrant in a

quick and efficient manner. See McNeely, 113 S.Ct. at 1561-62 (stating that

much technological advancement has occurred since Schmberber was

decided); See also Weems v. State, 434 S.W.3d 655-666.

Lastly the State sums its first argument as:

       "the State is not arguing exigency based solely on the

       dissipation of alcohol in the blood. Instead, there was an actual

       medical emergency and a combative defendant, which at up

       time and took the officer away from the jail and the

       magistrate." State's Brief at 13.

       This summarization contradicts itself. The State claims not to be

arguing exigency solely on the dissipation of alcohol in the blood, but then

refers to the Defendant taking the arresting officer away from the jail and the

magistrate, which directly goes to the dissipation of alcohol in the blood. ld.

Based on the time and various avenues Officer Johnson had to obtain a

 State v. Martinez                  15
 APPELLATE CAUSE NO. 03-14-00588-CR
warrant he easily could have done so if he made an attempt. Further, in tune

with the holdings in McNeely and Villarreal, the dissipation of alcohol in

blood is not a deciding relevant factor to consider when determining

exigency, and neither of those cases makes a ruling as applied to "combative"

defendants. Therefore, the dissipation of alcohol in blood and "a combative

defendant'' should receive no consideration as primary factors in an exigency

determination.

Point Two:          Pursuant to the Court of Criminal Appeals ruling in

 Villarreal, and the rulings of many other Courts throughout Texas, it is

explicit that the mandatory blood draw statute does not circumvent the 4'h

Amendment's requirement for a warrant. The State's point lacks merit.

       The state's second point is meritless when considering the Court of

Criminal Appeals ruling in Villarreal. However, Defendant will address the

State's arguments in States Point 2 in turn.

       The state argues that "the warrantless blood draw was mandated by

statute." In Villarreal the Court of Criminal Appeals brought light to the fact

that the mandatory blood draw statute was silent as to whether or not the

arresting officer was required to obtain a warrant before drawing blood,

quoting the statute directly that a peace officer "shall require the taking of a

specimen" but makes no reference to 4th Amendment warrant requirements.

State v. Martinez                      16
APPELLATE CAUSE NO. 03-14-00588-CR
Villarreal at 19.    However, the ruling in Villarreal did speak to the

Legislature being unable to restrict an individual's constitutionally

guaranteed rights, stating, "The Legislature may not restrict guaranteed rights

set out in constitutional provisions". Villarreal at 19 (quoting Venn v. State,

85 Tex.Crim. 633, 218 S.W. 1060 (1920)). Therefore, the State's first

argument on State's Point 2 fails and lacks merit.

       Next, the state argues that, "The court should conduct a traditional

balancing test to evaluate the constitutionality of the statue." Once again,

Villarreal speaks directly to this point. Specifically, the Court of Criminal

Appeals opined that "the warrantless, nonconsensual blood testing of a DWI

suspect's blood does not categorically fit within any recognized exception to

the Fourth Amendment's warrant requirement, nor can it be justified under a

general Fourth Amendment balancing test." Villarreal at 1. In Villarreal the

State argued that a traditional approach must be taken when considering

intrusiveness of the mandatory blood draw statute, requiring the court to

weigh the "promotion of legitimate governmental interests' against 'the

degree to which [the search] intrudes upon an individual's right to privacy."

Villarreal at 16 (quoting Houghton, 526 U.S. at 300, 119 S.Ct. 1297). At the

core of their argument for a traditional balancing test the State in Villarreal,

relied on Maryland v. King a case in which the Supreme Court upheld the

State v. Martinez                      17
APPELLATE CAUSE NO. 03-14-00588-CR
warrantless collection of DNA from felony arrestees.              In King, law

enforcement was collecting DNA from arrestees not for the sake of gathering

evidence against them, but for the simple procedure of inmate identification.

       In rejecting the State's argument and its reliance on King, the Court of

Criminal Appeals reiterated the Supreme Court's holding in McNeely, stating

"the warrantless search of a person is unreasonable unless it falls within an

establish exception to the warrant requirement." The Villarreal opinion

further speaks directly to the facts in King stating that the intrusion that took

place in King is far less substantial than puncturing a vein in a DWI

investigation.       Villarreal at 18.   Further, in its rejection of the State's

argument, Villarreal discusses that police officers in King were acting with

no discretion, whereas, during the course of a DWI investigation the primary

purpose of an officer is to make a discretionary probable cause determination

to investigate and search potential intoxication. Villarreal at 17. Last, the

Court of Criminal Appeals in Villarreal rejects the State's balancing test

argument in stating,

        "if we were to accept the viability of a Fourth Amendment

        balancing test here as a substitute for the established exceptions

        to the warrant requirement, we conclude that, on balance, a

        DWI suspect's privacy interest outweighs the State's interest in

 State v. Martinez                        18
 APPELLATE CAUSE NO. 03-14-00588-CR
        preventing drunk driving through warrantless searches."

        Villarreal at 18.

        Therefore, State's second argument to State's Point 2 as well as

State's point 3, fails.

       Point Three: The Defendant never consented to the blood draw and

a person has an absolute right to refuse a test and it is explicit that implied

consent is not an exception to the 41h Amendment's requirement for a

warrant. The State's point lacks merit.

        Tex. Transp. Code § 724.011(a), or the implied consent statute, has

been deemed to not waive a person's Fourth Amendment rights in relation to

a warrantless blood draw during the course of a DWI investigation, where the

individual unequivocally withdrew or revoked his consent. Villarreal at 11.

The State in Villarreal argued that an individual implicitly gave consent to a

search of their blood or breath by enjoying the benefit of driving on public

roadways in Texas, and this implicit consent could not be withdrawn or

revoked. Id. However, the Court of Criminal held that "implied consent that

has been withdrawn is not voluntary consent." Id. Specifically, the Court of

Criminal Appeals opined that in order to constitute a valid waiver of an

individual's Fourth Amendment rights, consent to search must be given

freely and voluntarily. Id (quoting Schneckloth, 412 U.S. at 227, 93 S.Ct.

State v. Martinez                  19
APPELLATE CAUSE NO. 03-14-00588-CR
2041). Another necessary component of valid consent is an individual's

ability to revoke or limit it.         Miller v. State, 393 S.W. 3d 255, 266

(Tex.Crim.App.2012). The analysis of whether consent is given voluntary is

a question of fact to be determined by the totality of the circumstances.

Villarreal at 11 (quoting Schneckloth).         Moreover, prior to the Court of

Criminal Appeal's decision in Villarreal several appeals courts throughout

Texas    held        that   warrantless,   nonconsensual   blood   draws   were

unconstitutional absent exigent circumstances.         See Reeder v. State, 428

S.W.3d 924 (Tex.App.-Texarkana 2014, pet. granted); Sutherland v. State,

436 S.W.3d 842 (Tex.App-Amarillo 2014, no pet.); Douds v. State, 434 S.W.

3d 842 (Tex.App.-Houston [14th Dist.] 2014, pet. granted; Weems v. State,

434 S.W.3d 655 (Tex.App.-San Antonio, pet. granted); Holidy v. State, No-

06-13-00261-CR, 2014 WL 1722171 (Tex.App.-Texarkana Apr. 30, 2014,

pet granted) (mem. Op., not designated for publication).

        As applied to the facts in the Record, Officer Johnson made it clear

that the Defendant unequivocally denied consent for the search of his blood

or breath. 2RR 35. Hence, based on precedent, the State's reliance on Tex.

Trans. Code § 724.011(a) fails to justify the warrantless blood draw in the

instant case due to Defendant asserting his right withdraw his consent for the

search of his blood.

 State v. Martinez                         20
 APPELLATE CAUSE NO. 03-14-00588-CR
       POINT FOUR: The State's argument that Tex. Code Crim. Pro.

Art. 38.23 does not apply: (1) "at the time" evidence was collected in

accordance with then existing law fails due to the retroactive application

of McNeely does not recognize the lights most favorable to the trial court's

ruling; (2) the State fails to acknowledge facts viewed in light most

favorable to the trial court's ruling that exigency in the instant case did

not exist; (3) the State's argument in Point Four can be distinguished.

       1.     Application of the law and precedent "at the time of arrest."

       Defendant takes a multi-faceted approach in addressing the argument

in State's Point 4. Even though it claims it is not arguing a "back door" to

good faith, the State is attempting introduce evidence into a pending criminal

prosecution that was later ruled to have been collected in an unconstitutional

manner, and not in accordance with the laws of Texas. Specifically, the State

is attempting to articulate in a round-a-bout way that the blood draw taken

from Defendant should be allowed in, and that the Supreme Court's ruling in

McNeely, and the subsequent Court of Criminal Appeals ruling in Villarreal

should not retroactively apply to the Defendant' s case. 6


6Please note that Defendant's approach to addressing State's Point 4 is an attempt
at making the most sense of the State's argument. In summary, the State claims
"assuming arguendo, that the blood draw is unconstitutional, the Texas
exclusionary rule still does not bar the admission of evidence". In this particular
argument the State concedes the blood draw in the instant case unconstitutional
State v. Martinez                           21
APPELLATE CAUSE NO. 03-14-00588-CR
       The Texas Fifth Court of Appeals and Sixth Court Appeals have

addressed "whether art 38.23 is triggered'' during a mandatory blood draw in

pending cases that factually occurred prior the Supreme Courts ruling in

McNeely. The Fifth Court in Bowman v. State, opined that a warrantless

blood draw under Chapter 724 of the Texas Transportation Code was a

violation of a suspects Fourth Amendment rights. Bowman v. State, 2015 WL

557205.   Further, the Fifth Court stated that the trial court's opinion in

Bowman regarding exigency that qualified a warrantless blood draw was

unconstitutional.

       In Bowman, the State advanced an argument much similar to State's

Point Four in the instant case, claiming "everything that he did was

appropriate" according to the Texas Transportation Code regarding the

arresting officer's warrantless draw of the suspect's blood, and that exigent

circumstances existed based on precedent "at the time" the arrest of Bowman

occurred. ld at 9. The Fifth Court however, rejected this argument and

referred to the application of the Supreme Court's ruling in McNeely,

specifically "[w]hether a warrantless blood test of a drunk-driving suspect is

reasonable must be determined case by case based on the totality of the

(which is supported by the findings of the trial court and a slew of case law). Hence,
Article 38.23 does trigger since the evidence was obtain in violation of the 4th
Amendment of the Constitution, and the evidence, by law, is suppressed. Here the
State argues the Defendant's position.
State v. Martinez                         22
APPELLATE CAUSE NO. 03-14-00588-CR
circumstances." Bowman at 9 (quoting McNeely at 1568). In doing so the

Fifth Court applied the Supreme Court's new rule and standard in examining

warrantless blood draws in DWI investigations retroactively, to cases

pending at the time McNeely was decided. Bowman at 10. Particularly, in

regard to the retroactive use of McNeely in litigation pending at the time it

was decided the Fifth Court stated, "[N]ew rules governing the conduct of

criminal prosecutions apply retroactively to all cases pending on direct appeal

or not yet final at the time the new rule is announced regardless of whether

they constitute a clear break from past precedent." Bowman at 10.

        Exigent circumstances in Bowman were found to be nonexistent, the

Fifth Court determining that "[T]he focus of exigent circumstances analysis

in this context (DWI investigation) is not on the delay attendant to an

investigation, ... but on the delay necessary to obtain a warrant." Bowman at

11 (quoting Douds v. State, 434 S.W.3d 842, 851 (Tex.App.- Houston [14th

Dist.] 2014, pet. granted)). Factually Bowman differs from the instant case in

that it was an investigation that involved a major traffic accident and backup

arriving late to the scene of the investigation. Id at 11. The Fifth Court

turned their analysis on the different options available to the arresting officer

in Bowman to obtain a warrant, rather than the circumstances surrounding the

accident and arrest. See, ld.

 State v. Martinez                     23
 APPELLATE CAUSE NO. 03-14-00588-CR
       In contrast in the Defendant's case the facts as supported by the

Record drastically detail less exigency. As testified by Officer Johnson, he

arrived at a scene involving no accident that he immediately determined was

not dangerous in nature, he conducted a DWI investigation, and at no time

did he attempt to explore the options available to him to retrieve a warrant,

nor did he call a detective or a corporal to assist him in getting a warrant.

2RR 36, 38, 58. As such, the State is attempting to draw focus away from

Officer Johnson's lack of exploring his various options to obtain a warrant in

their exigency argument, and therefore their argument fails.

       The Fifth Court in Bowman relied heavily on the Sixth Court of

Appeals decision in Cole v. State, 2014 WL 7183859. In Cole the Sixth

Court faced a similar argument advanced by the State, claiming that there

was no "retroactive" application of the Supreme Court's ruling in McNeely to

a case whose trial was pending at the time McNeely was issued (referring

here to the State's argument that "at the time" the actions of Officer

Johnson's actions were constitutional). In Cole, the Sixth Court examined

exigency and the constitutionality of a warrantless blood draw made pursuant

to the mandatory blood draw statute and implied consent. In their opinion,

the Sixth Court reasoned that McNeely had retroactive application to the

accused's case.     Cole at 11.   In support of their ruling the Sixth Court

State v. Martinez                     24
APPELLATE CAUSE NO. 03-14-00588-CR
referred to the Supreme Court's ruling in Griffith v. Kentucky, which held

that:

        "new rules govemmg the conduct of criminal prosecutions

        apply retroactively to all cases pending on direct appeal or not

        yet fmal at the time the new rule is announced regardless of

        whether they constitute a clear break from past precedent."

        Griffith v. Kentucky, 479 U.S. 314, 326-38, 107 S.Ct. 708, 93

        L.Ed.2d 649 (1987). 7

The primary focus of the Sixth Court's reasonmg was to ensure that

defendants in similarly situated positions are granted the same amount of

protection under new precedent set forth by the Supreme Court.

        Further, the trial court cites to McNeely in its fmdings of fact and

conclusions of law. CR 61-63. In doing so the it can be determined that the

trial court adopted the standard in McNeely in making its ruling in the instant

case. As such, taking the Sixth Court's position in Cole into consideration,

and applying the rulings in Griffith, McNeely, and Villarreal, the State's

argument that "at the time" the Officer Johnson did not violate the law fails.

        ii.    Facts must be viewed in light most favorable to the trial

               court's ruling.

 7The Sixth Court also cites McClintock v. State, 444 S.W.3d 15 (Tex.Crim.App.2014);
 Steadman v. State, 360 S.W.3d 499, 504 n. 13 (Tex.Crim.App.2012)).
 State v. Martinez                         25
 APPELLATE CAUSE NO. 03-14-00588-CR
       Taking into consideration the State's position that "at the time"

exigency existed, "assuming arguendo" that the blood draw was

unconstitutional, there cannot be a fmding of exigency. The trials court's

decision on the fact of the case must be seen in the light most favorable to its

findings assuming the court's findings were implicitly supported by the

record. Carmouche v. State, 10 S.W.3d 323, 327-8 (Tex.Crim.App.2000).

As applied to the facts of the case and reflecting on the record and the trial

court's findings of facts and conclusions of law, the circumstances

surrounding the instant case did not constitute exigency. Simply put, the trial

court rejected the State's argument of exigency, and moreover the State

supports that finding in "assuming arguendo" that the blood draw was

unconstitutional. Hence, the State's agrees no viable exception to the warrant

requirement existed, and the blood draw is correspondingly suppressed.

       iii. The cases the State cites in Point Four can be distinguished

           from the instant case.

       The State cites two separate cases in support of its round-a-bout, "not

a back door" argument to good faith, and reliance of case law "at the time".

Specifically the State cites, "State v. Johnson, 871 S.W.2d. 744, 750-51 (Tex.

Crim. App. 1994) (no exclusion when there is attenuation of taint);

Wehrenberg v. State, 416 S.W.3d 458, 467-70 (Tex. Crim. App. 2013) (no

State v. Martinez                  26
APPELLATE CAUSE NO. 03-14-00588-CR
exclusion when there is an independent source)." In regard to the two cases

cited by the State, the courts of Texas have never prospectively applied art.

38.23, and moreover the statute the State relies on was enacted by the Texas

Legislature, and was not created or articulated by the Supreme Court, the

Texas Court of Criminal Appeals, or the appellate courts of Texas. Further,

based on the plain language of the statute, the Texas Legislature did not

provide for a broad "good-faith" exception, indicating that they wanted the

statute to apply. See, Tex. Code Crim. Pro. Art. 38.23.

       Specifically, the facts of the instant case can be distinguished from the

holdings in Wehrenberg and Johnson, in that, those cases involved unlawful

activity, however, the evidence that was ultimately obtained by legal means.

See Wehrenberg at 462, 469 (evidence gathered by the State was pursuant to

a validly executed search warrant reliant on a confidential informant rather

than improper police conduct.); See Davis at _            (the statement of a

defendant after a warrantless arrest was still admissible because and arrest

warrant was obtained after the warrantless arrest but before the statement was

given.) These cases are distinguishable from the instant case. Particularly,

the blood draw in Defendant's case is the only evidence gathered as a result

APD' s investigation and is the only evidence the State wishes to admit

pursuant to the above-cited cases. As applied to the facts and precedent the
State v. Martinez                  27
APPELLATE CAUSE NO. 03-14-00588-CR
blood results are inadmissible because they were never obtained in a legal

fashion and is the product of police misconduct.

        Based on the foregoing analysis the State's argument in Point Four

fails in all facets.

POINTFWE:              Good faith under the federal exclusionary rule does not

apply in the instant case.

          The State claims in State's Point Five that the "federal Exclusionary

rule does not bar admission" of the unconstitutional blood draw administered

by the Austin Police Department in the instant case.         In support of its

argument the State falls back on the application of the federal exclusionary

rule, rather than the Article 38.23 of the Texas Code of Criminal Procedure,

and cites lllinois v. Krull, 480 U.S. 340, 107 S.Ct. 1160, 94 L. Ed. 2d 364

(1987).

          This argument was recently addressed by the Fourth Court of Appeals

in San Antonio, in State v. Weems, 434 S.W. 3d 655. In Weems, the State

argued that the good faith exception to the federal exclusionary rule applies

to a warrantless blood draw in Texas, an argument rejected by the 4th Court.

Weems at 666 (21 cases cite this headnote, citations excluded). In support of

their finding, the Fourth Court opined that the Texas exclusionary rule offers

an accused, on its face, more constitutional protection than the federal rule.

 State v. Martinez                      28
APPELLATE CAUSE NO. 03-14-00588-CR
Id.   Explicitly stating, under the Texas exclusionary rule, the good faith

exception can only be triggered when a police officer relies on a warrant

issued by a neutral magistrate. Id. Hence, in application to Defendant's case,

Officer Johnson never attempted to obtain a warrant and the good faith

exception cannot trigger. Put simply, the State's argument fails.

                                 Prayer

        The Defendant asks this Court to uphold the ruling of the trial court,

and suppress the blood analysis unconstitutionally obtained by the State in

violation of the United States Constitution, the Texas Code of Criminal

Procedure, and Texas and federal precedent.




                                        702 Rio Grande
                                        Austin, Texas 78701
                                        512.897.3325 (p)
                                        512.501.6307 (f)
                                        delavina.law@gmail.com
                                        www .delavinalaw.com




 State v. Martinez                     29
 APPELLATE CAUSE NO. 03-14-00588-CR
                     Certificate of Compliance and Service


            I hereby certify that this letter contains 6,217 words, based upon the

computer program used to generate this letter and excluding words contained in

those parts of the letter that Texas Rule of Appellate Procedure 9 .4(i) exempts

from inclusion in the word count, and that this letter is printed in a conventional,

14-point typeface. I further certify that, on the 1st day of April, 2015, a true and

correct copy of this letter was served, electronic mail, facsimile, or electronically

through the electronic filing manager, to the Appellant's attorney, Angie Creasy,

Travis County District A




      State v. Martinez                  30
      APPELLATE CAUSE NO. 03-14-00588-CR
