                                                                        ACCEPTED
                                                                    04-13-00891-CR
                                                        FOURTH COURT OF APPEALS
                                                             SAN ANTONIO, TEXAS
                                                                5/7/2015 4:17:33 PM
                                                                     KEITH HOTTLE
                                                                             CLERK

                 No. 04-13-00891-CR



                         In the
Fourth Court of Appeals District of Texas
                  San Antonio, Texas

                    DONALD F. HUFF,
                              Appellant
                          v.
                    STATE OF TEXAS,
                              Appellee

     On appeal from the 226th Judicial District Court
                  Bexar County, Texas
             Trial Cause No. 2011-CR-2990


       STATE’S MOTION FOR REHEARING



             NICHOLAS “NICO” LAHOOD
              Criminal District Attorney
                  NATHAN E. MOREY
         Assistant Criminal District Attorney
                State Bar No. 24074756
        CRIMINAL DISTRICT ATTORNEY’S OFFICE
                 Bexar County, Texas
           101 West Nueva Street, Suite 370
              San Antonio, Texas 78205
                Voice: (210) 335-2414
                 Fax: (210) 335-2436
           Email: nathan.morey@bexar.org
            Attorneys for the State of Texas
                  HUFF v. STATE, No. 04-13-00891-CR – State’s Motion for Rehearing



                                               TABLE OF CONTENTS

TABLE OF CONTENTS ................................................................................................. ii

INDEX OF AUTHORITIES............................................................................................. iii

STATEMENT OF THE CASE ...........................................................................................1

GROUNDS FOR REHEARING .........................................................................................2

ARGUMENT .................................................................................................................3

    Ground One: The Court’s opinion contravenes a basic tenet of the
                Fourth Amendment by relying on the officer’s subjective
                intent............................................................................................3

         Applicable Law: The Fourth Amendment and an Officer’s Subjective
           Intent ...........................................................................................................3

         Application of the Law to the Present Record .................................................4

    Ground Two: The Court’s opinion implies an incorrect legal standard
                for exigent circumstances. ..........................................................6

         Applicable Law: McNeely ...............................................................................6

         Application of the Law to the Present Record .................................................7

    Conclusion               .....................................................................................................8

PRAYER .......................................................................................................................9

CERTIFICATE OF SERVICE ..........................................................................................10

CERTIFICATE OF COMPLIANCE ..................................................................................10




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                                       INDEX OF AUTHORITIES

Statutes:

   TEX. CODE CRIM. PROC. art. 18.02 ........................................................................8

   TEX. PENAL CODE § 19.02(b) ................................................................................1

Cases:

   Aliff v. State,
      627 S.W.2d 166 (Tex. Crim. App. [Panel Op.] 1982).................................7, 9

   Ashcroft v. al-Kidd,
      131 S. Ct. 2074 (2011).....................................................................................3

   Brinegar v. United States,
      338 U.S. 160 (1949).........................................................................................4

   Cole v. State,
     454 S.W.3d 89 (Tex. App.—Texarkana 2014),
     pet. granted, No. PD-0077-15,
     No. 2015 Tex. Crim. App. LEXIS 508 (Tex. Crim. App. Apr. 22, 2015) ......6

   Devenpeck v. Alford,
     543 U.S. 146 (2004).....................................................................................3, 5

   Heien v. North Carolina,
     135 S. Ct. 530 (2014)...................................................................................4, 5

   Hill v. California,
      401 U.S. 797 (1971).....................................................................................4, 5

   Huff v. State,
     No. 04-13-00891-CR, ___ S.W.3d ___
     (Tex. App.—San Antonio 2015, no pet. h.) ................................................1, 6

   Kentucky v. King,
     131 S. Ct. 1849 (2011).....................................................................................4

   Mincey v. Arizona,
     437 U.S. 385 (1978).........................................................................................4


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  Missouri v. McNeely,
    133 S. Ct. 1552 (2013)........................................................................ 6, 7, 8, 9

  Ryburn v. Huff,
    132 S. Ct. 987 (2012).......................................................................................7

  Schmerber v. Califorina,
     384 U.S. 757 (1966).....................................................................................6, 9

  Scott v. United States,
     436 U.S. 128 (1978).........................................................................................3

  United States v. Sharpe,
    470 U.S. 675 (1985).....................................................................................7, 8

  Whren v. United States,
    517 U.S. 806 (1996).....................................................................................3, 5

Rules:

  TEX. R. APP. P. 9.4(i)(2)(B) ...............................................................................10

  TEX. R. APP. P. 9.4(i)(3) .....................................................................................10

  TEX. R. APP. P. 9.5(b).........................................................................................10

  TEX. R. APP. P. 49.1. .............................................................................................1




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TO THE HONORABLE FOURTH COURT OF APPEALS:

      NOW COMES the State of Texas, by and through Nicholas “Nico” LaHood,

criminal district attorney of Bexar County, Texas, and the undersigned assistant

criminal district attorney, with the filing of the following Motion for Rehearing.


                             STATEMENT OF THE CASE

      Donald F. Huff, hereinafter referred to as Appellant, was charged by

indictment with murder (C.R. at 19). See TEX. PENAL CODE § 19.02(b). This

Court reversed the trial courts judgment on the basis that evidence was admitted

during trial that was seized in violation of the Fourth Amendment. Huff v. State,

No. 04-13-00891-CR, ___ S.W.3d ___ (Tex. App.—San Antonio 2015, no pet. h.).

The State now asks this Court to reconsider its previous judgment and opinion.

See TEX. R. APP. P. 49.1.




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                            GROUNDS FOR REHEARING


Ground One: The Court’s opinion contravenes a basic tenet of the Fourth
            Amendment by relying on the officer’s subjective intent.


Ground Two: The Court’s opinion implies an incorrect legal standard for exigent
            circumstances.




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                                     ARGUMENT

Ground One: The Court’s opinion contravenes a basic tenet of the Fourth
            Amendment by relying on the officer’s subjective intent.

      In deciding whether the instant blood draw was supported by exigent

circumstances, this Court relied almost entirely on the officer’s subjective intent.

This Court also relied on the trial court’s conclusion, which appears to have also

erroneously relied on the officer’s subjective intent. Huff, at *29–30. Because the

Supreme Court has repeatedly stated that an officer’s subjective intent does not

control a Fourth Amendment analysis, this Court should reconsider its original

opinion.


   Applicable Law: The Fourth Amendment and an Officer’s Subjective Intent
      It is axiomatic that the subjective intent of the officer is irrelevant to the

lawfulness of a search or seizure. Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2080

(2011); Devenpeck v. Alford, 543 U.S. 146, 154–55 (2004); Bond v. United States,

529 U.S. 334, 339 n.2 (2000); Whren v. United States, 517 U.S. 806, 813 (1996).

A court must decide whether “the circumstances, viewed objectively, justify the

challenged action.” Ashcroft, 131 S. Ct. at 2080 (quoting Scott v. United States,

436 U.S. 128, 138 (1978) (alterations omitted)). Consistent with this principle, the

Supreme Court has stated that police may conduct a warrantless search “when the

exigencies of the situation make the needs of law enforcement so compelling that a



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warrantless search is objectively reasonable under the Fourth Amendment.”

Kentucky v. King, 131 S. Ct. 1849, 1856 (2011) (quoting Mincey v. Arizona, 437

U.S. 385, 394 (1978) (emphasis added, internal quotes and alterations omitted)).

      Along this same line is the equally axiomatic rule that an officer does not

have to be right so long as he is reasonable. See Hill v. California, 401 U.S. 797,

804 (1971) (officer’s factual mistake was reasonable and did not invalidate search

and seizure). “To be reasonable is not to be perfect, and so the Fourth Amendment

allows for some mistakes on the part of government officials, giving them ‘fair

leeway for enforcing the law in the community’s protection.’” Heien v. North

Carolina, 135 S. Ct. 530, 536 (2014) (quoting Brinegar v. United States, 338 U.S.

160, 176 (1949)).


   Application of the Law to the Present Record
      The question in the present case should not tunr on Officer Peeler’s opinion.

Rather, the question should be whether an objective assessment of the facts support

a finding of exigent circumstances. Contrary to the trial court’s ruling and this

Court’s opinion, the record supports such a finding.

      Peeler initially had to block off traffic when he arrived at the scene of a

major accident (V R.R. at 10). Then his supervisor asked him to handle the DWI

portion of the accident investigation (V R.R. at 10). Once Peeler asked Appellant

to perform standardized field sobriety tests, he requested EMS treatment (V R.R. at


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12). Peeler was unable to request a blood specimen from Appellant until 10:53 PM

(V R.R. at 15). In addition, there was no expedited process to obtain a blood-

warrant in 2009 (V R.R. at 14, 15). The blood was ultimately drawn by a nurse at

the hospital at 11:36 PM (V R.R. at 15). This Court should have analyzed these

facts from an objective perspective. Instead, this Court and the trial court rested its

ruling and opinion on the officer’s conclusory response to Appellant’s leading

question: “Where there any exigent circumstances that prevented you from getting

a warrant?” “No, sir.” (V R.R. at 19). But the officer testified to more.

      The Fourth Amendment does not require Peeler to subjectively believe that

exigent circumstances were present, see Devenpeck, 543 U.S. at 154–55; Whren,

517 U.S. at 813, nor does it require him to be factually correct as to the sufficiency

of exigent circumstances, see Heien, 135 S. Ct. at 536; Hill, 401 U.S. at 804. This

Court’s exigency analysis contains no reference to any objective facts and relies

solely on Peeler’s subjective belief (supported by a single response to a leading

question). See Huff, at *29–32. The State respectfully asks this Court to reissue its

opinion with an exigency analysis based on objective facts and consistent with the

above cited precedent.




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Ground Two: The Court’s opinion implies an incorrect legal standard for exigent
            circumstances.

       This Court and the trial court concluded that there were no exigent

circumstances because “the officer never thought of obtaining a warrant because it

was not standard procedure.” Huff, at *31. This conclusion is inconsistent with

McNeely’s holding.


    Applicable Law: McNeely
       In Missouri v. McNeely, 133 S. Ct. 1552 (2013), the Supreme Court

reaffirmed its previous holding in Schmerber v. Califorina, 384 U.S. 757 (1966).

In that case the Court concluded that a warrantless blood draw was administered

under exigent circumstances after a suspect was transported to a hospital following

a car crash. McNeely, 133 S. Ct. at 1559–60 (citing Schmerber). The McNeely

Court referred to the crash circumstances in Schmerber as “special facts” and

distinguished Schmerber’s car crash scenario from McNeely’s run-of-the-mill DWI

arrest. McNeely, 133 S. Ct. at 1559–61. The question, according to McNeely, is

not whether the officer can obtain a warrant. The question is whether police can

obtain a warrant “without significantly undermining the efficacy of the search.”

Id. at 1561.1 The McNeely plurality warned reviewing courts not to view an


1
       The Court of Criminal Appeals recently granted the State’s petition for discretionary
review of the Texarkana Court of Appeals decision in Cole v. State, 454 S.W.3d 89 (Tex. App.—
Texarkana 2014), pet. granted, No. PD-0077-15, No. 2015 Tex. Crim. App. LEXIS 508 (Tex.
Crim. App. Apr. 22, 2015). The first ground presented in the Cole PDR is: “Did the Court of


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officer’s action with “the 20/20 vision of hindsight” when answering this question.

Id. at 1564 (plurality op.) (quoting Ryburn v. Huff, 132 S. Ct. 987, 992 (2012)). It

is always important that courts review an officer’s conduct for objective

reasonableness and not whether he took the most reasonable course of action

amongst a set of reasonable alternatives. United States v. Sharpe, 470 U.S. 675,

686–87 (1985).

       The Court of Criminal Appeals has previously concluded that exigent

circumstances existed in a case similar to both Schmerber and the present case.

See Aliff v. State, 627 S.W.2d 166, 168–70 (Tex. Crim. App. [Panel Op.] 1982)

(blood draw of manslaughter suspect in hospital who was not under arrest did not

violate Fourth Amendment).


   Application of the Law to the Present Record
       In the present case, Officer Peeler followed Appellant to the hospital, but

was not able to speak with him and ask him for a consensual blood test until 10:53

PM—nearly three hours after the initial crash (V R.R. at 12–15). The blood was

ultimately drawn pursuant to the mandatory law at 11:36 PM (V R.R. at 15). Had

Peeler sought a warrant at that point, without the current “no refusal procedures” in

Appeals conduct an incorrect exigent circumstances analysis when it required proof of a ‘now or
never’ level of urgency?”          See Court of Criminal Appeals’ Issues Page at
http://www.txcourts.gov/media/914405/issues04292015.pdf. The Court is also reviewing other
McNeely issues involving car crashes in the cases of Douds v. State, No. PD-0857-14, and
Weems v. State, No. PD-0635-14.



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place, he would have compromised “the efficacy of the search,” i.e., the probative

value of the blood. McNeely, 133 S. Ct. at 1561. Accordingly, Peeler’s actions

were consistent with McNeely and Schmerber.

      Of course, this Court could second guess Peeler and conclude that he should

have applied for a warrant based on his initial observations at the scene—

specifically, the odor on Appellant’s breath, the clues observed during the HGN

test, and the fact that Appellant lost control of his motorcycle.           However, a

magistrate need not ever issue a warrant.          He may issue a warrant if he is

convinced that the officer has probable cause. See TEX. CODE CRIM. PROC. art.

18.02. And a magistrate would be acting well within the law to decline to issue the

warrant if the officer had not first requested a voluntary breath specimen or

obtained a refusal. This Court should not fault Peeler for first attempting to obtain

Appellant’s consent or refusal because a refusal to voluntarily submit a blood or

breath specimen has probative value in a DWI investigation. McNeely, 133 S. Ct.

at 1564 (plurality op.); Sharpe, 470 U.S. at 686–87.            By the time Appellant

refused, too much time had already passed and Peeler was reasonable to proceed

without a warrant.


Conclusion
      This Court’s exigency analysis turns on Officer’s Peeler’s subjective intent

and ignores the objective facts and whether, based on those facts, obtaining a


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search warrant would have significantly undermined the “efficacy of the search.”

McNeely, 133 S. Ct. at 1561. Regardless of whether the mandatory blood draw

provision of the Transportation Code is by itself is a reasonable alternative to a

search warrant (a question still pending), Officer Peeler’s conduct was reasonable

in light of general Fourth Amendment principles and precedent from both the

Supreme Court and the Court of Criminal Appeals. See Schmerber, 384 U.S. at

766–71; Aliff, 627 S.W.2d at 168–70.


                                       PRAYER

      WHEREFORE, PREMISES CONSIDERED, Appellee State prays this

reconsider its judgment and opinion of April 8, 2015, and issue a new judgment

and opinion affirming the trial court’s judgment of conviction and sentence.

                                            Respectfully submitted,

                                            NICHOLAS “NICO” LAHOOD
                                            Criminal District Attorney
                                            Bexar County, Texas

                                                        /s/ Nathan E. Morey
                                            NATHAN E. MOREY
                                            Assistant Criminal District Attorney
                                            State Bar No. 24074756
                                            101 West Nueva, Suite 370
                                            San Antonio, Texas 78205
                                            Voice: (210) 335-2414
                                            Fax: (210) 335-2436
                                            Email: nathan.morey@bexar.org
                                            Attorneys for Appellant State of Texas


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           HUFF v. STATE, No. 04-13-00891-CR – State’s Motion for Rehearing



                            CERTIFICATE OF SERVICE

      I, Nathan E. Morey, hereby certify that, pursuant to Texas Rule of Appellate

Procedure 9.5(b), a true and correct copy of the above and foregoing brief was

emailed to Dayna Jones on Thursday, May 7, 2015.

                         CERTIFICATE OF COMPLIANCE

      I, Nathan E. Morey, certify that, pursuant to Texas Rules of Appellate

Procedure 9.4(i)(2)(B) and 9.4(i)(3), the above and foregoing Motion for

Rehearing contains 2,324 words according to the “word count” feature of

Microsoft Office.

                                                       /s/ Nathan E. Morey
                                           NATHAN E. MOREY
                                           Assistant Criminal District Attorney
                                           State Bar No. 24074756
                                           101 West Nueva, Suite 370
                                           San Antonio, Texas 78205
                                           Voice: (210) 335-2414
                                           Fax: (210) 335-2436
                                           Email: nathan.morey@bexar.org
                                           Attorney for Appellant State
cc: DAYNA L. JONES
    Attorney at Law
    State Bar No. 24049450
    206 East Locust Street
    San Antonio, Texas 78212
    Voice: (210) 255-8525
    Fax: (210) 249-0116
    Email: daynaj33@gmail.com
    Attorney for Appellant




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