                                                                  PD-0235&0236
                                                   COURT OF CRIMINAL APPEALS
     PD-0235&0236-15                                                AUSTIN, TEXAS
                                                 Transmitted 2/27/2015 5:41:45 PM
                                                    Accepted 3/2/2015 11:48:22 AM
                                                                     ABEL ACOSTA
          NO. PD-___________ AND     PD-____________                         CLERK

 IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF TEXAS




             ELIAS ESEQUIEL VASQUEZ, Appellant

                             vs.

                 THE STATE OF TEXAS, Appellee




 APPELLANT VASQUEZ’S PETITION FOR DISCRETIONARY REVIEW
            OF THE JUDGMENT AND OPINION IN
       CAUSE NOS. 04-13-00338-CR AND 04-13-00339-CR



                                   Respectfully submitted by
                                   Appellant's attorney,

                                   VICTORIA GUERRA
                                   Texas Bar No. 08578900
      March 2, 2015                320 W. Pecan Blvd.
                                   McAllen, Texas 78501
                                   (956) 618-2609
                                   (956) 618-2553 Fax




ORAL ARGUMENT WAIVED
UNLESS REQUESTED BY COURT
                 IDENTITY OF PARTIES AND COUNSEL

     Elias Esequiel Vasquez (hereinafter “Appellant” or “Mr. Vasquez”)

certifies that below is a complete list of all parties to the trial court’s

judgment and their trial counsel’s names, addresses and telephone

number.

1. Mr. Vasquez, resides in the I.D.T.D.C.J., Ney Unit, 114 Private Road
4303, Hondo, TX 78861-3812. His TDCJ number is: #01855231 .

2. Mr. Vasquez’s trial attorney was Juan Eduardo Garcia, whose office
address is 102 Texas Ave.; phone number: (956) 487-3739.

Mr. Flores’ appellate counsel is the undersigned, Victoria Guerra, whose
address is 3219 N. McColl Rd., McAllen, TX 78501; phone number: (956)
618-2609; facsimile: (956) 618-2553; email: vguerralaw@gmail.com .

3. Appellee is the State of Texas.

4. Appellee is represented by the Starr County Criminal District Attorney
Omar Escobar and ADA Marty Garcia Vela. Their address is: 3rd Floor,
Suite 417, Starr County Courthouse, Rio Grande City, Texas 78582. On
appeal, Appellee is represented by John A. Olson. His contact information
is as follows: 20634 Creek River, San Antonio, TX 78259; 210-307-0336
(phone).

5. This case was heard by the Trial Court, Judge Ana Lisa Garza, and by a
panel of three judges on the Thirteenth Court of Appeals who affirmed the
judgment of the Trial Court.


                                     /s/ Victoria Guerra
                                     Victoria Guerra




                                       ii
               TABLE OF CONTENTS


TABLE OF CONTENTS………………………………………………………..iii

LIST OF AUTHORITIES……………….……………………………………...iv

STATEMENT REGARDING ORAL ARGUMENT…………….……………1

STATEMENT OF THE CASE……………………….…………………………2

STATEMENT OF PROCEDURAL HISTORY……………………………….2

GROUNDS FOR REVIEW……………………………………………………..3
ARGUMENT AND AUTHORITIES…………………………………………..4
CONCLUSION AND PRAYER..……………………………………………....7

CERTIFICATE OF SERVICE…………………………………………………8

APPENDIX……………………………………………………………………….




                      iii
                                     INDEX OF AUTHORITIES


Cases

Abel v. United States, 362 U.S. 217 (U.S. 1960) ......................................... 5

McDuff v. State, 939 S.W.2d 607 (Tex. Crim. App. 1997) ........................... 4

Miller v. State, 335 S.W.3d 847 (Tex. App.—Austin 2011, no pet.) ............. 5

Smith v. State, 286, S.W.3d 333 (Tex. Crim. App. 2009) ............................ 4

Texas Rules of Appellate Procedure

9.4(i) (l) ....................................................................................................... 9

9.4(i)(3) ....................................................................................................... 9




                                                        iv
                   NO. PD-______ AND PD-________

 IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF TEXAS




                 ELIAS ESEQUIEL VASQUEZ, Appellant

                                     vs.

                    THE STATE OF TEXAS, Appellee

   _______________________________________________________


 APPELLANT VASQUEZ’S PETITION FOR DISCRETIONARY REVIEW

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

     COMES NOW ELIAS, Appellant in the above styled cause, and

respectfully urges this Court to grant discretionary review of the above

cause.

             STATEMENT REGARDING ORAL ARGUMENT

     Appellant waives oral argument, unless this Court deems that oral

argument is necessary.




                                      1
                         STATEMENT OF THE CASE

Appellant was indicted on or about June 23, 2011 in a single count

indictment, alleging that Defendant, on or about the 27th day of March,

2011, and before the presentment of this indictment, in Starr County,

Texas, did then and there operate a motor vehicle in a public place while

intoxicated by reason of the introduction of a combination of alcohol and

marijuana into the body, and did by reason of such intoxication cause the

death of another, namely, Guillermo Olivares, III, by accident or mistake,

to-wit: by driving his motor vehicle into the motor vehicle of the said injured

party. C14.1

                 STATEMENT OF PROCEDURAL HISTORY

      On August 27, 2012, Mr. Vasquez plead guilty to the indictment.

5R20. On November 27, 2012, Mr. Vasquez sought to have his plea of

guilty set aside. 6R4; C91, 104, 112. The Trial Court granted Mr. Vasquez’s

motion to set aside his plea. 8R5, C186. Jury selection for Mr. Vasquez’s

trial began on April 29, 2013. 12R41. Mr. Vasquez plead guilty before the

jury on April 30, 2013. The sentencing trial before the jury began on May 3,


      1
        The companion case, appellate cause number 04-13-00339-CR arising from
cause number 11-CRS-272 pertains to the charge of intoxication assault. The Trial
Court consolidated these two cases. C449. Both cases arose out of the same incident
and occurrence. The records are identical for all intents and purposes. However, the
documents are in different order. Mr. Vasquez sees no reason why the two cases
cannot be handled together.
                                         2
2013. 14R18. The jury assessed a sentence of thirteen years confinement

in the Texas Department of Criminal Justice and a fine of $ 10,000.

14R394, 399; C595. Mr. Vasquez filed a motion for new trial on May 29,

2013. C598. It appears that no hearing on this motion for new trial

occurred. C10. Mr. Vasquez timely perfected his appeal. (Supplemental

Clerk’s Record).

                       GROUNDS FOR REVIEW

     ISSUE NO. 1:    WHETHER THE FOURTH COURT OF
     APPEALS ERRED IN HOLDING THAT MR. VASQUEZ HAD
     ABANDONED THE VEHICLE HE WAS DRIVING, THEREBY
     DIVESTING HIM OF FOURTH AMENDMENT PROTECTION




                                   3
                                 ARGUMENT

      ISSUE NO. 1:    WHETHER THE FOURTH COURT OF
      APPEALS ERRED IN HOLDING THAT MR. VASQUEZ HAD
      ABANDONED THE VEHICLE HE WAS DRIVING, THEREBY
      DIVESTING HIM OF FOURTH AMENDMENT PROTECTION

      Appellant seeks review of the Court of Appeals’ reliance and

interpretation of McDuff v. State, 939 S.W.2d 607, 616 (Tex. Crim. App.

1997), which is misplaced.

      There exists a fundamental error in this Court’s opinion that skews

this Court’s analysis and result. Specifically, this Court’s opinion was based

not on the purported lack of standing of Mr. Vasquez to complain of a

violation of his expectation of privacy when the police stole, in violation of

the Fourth Amendment to the United States Constitution, the EDR from the

GMC Canyon which Mr. Vasquez was driving.

      Utilizing McDuff v. State, 939 S.W.2d 607, 616 (Tex. Crim. App.

1997), this Court held that Mr. Vasquez voluntarily discarded, left behind, or

otherwise relinquished his interest in property so that he could no longer

retain a reasonable expectation of privacy with regard to it at the time of the

search. No evidence exists to support this theory that appeared for the first

time in the State’s brief and was not raised at the trial court by the State.




                                       4
        Abandonment of property occurs only “if the defendant intended to

abandon the property and his decision to abandon it was not due to police

misconduct.” McDuff, 939 S.W.2d at 616.

        In Miller v. State, 335 S.W.3d 847 (Tex. App.—Austin 2011, no pet.)

the     court   drew   a   distinction   between   voluntary   and   involuntary

abandonment. In that case, the defendant, a police officer accidentally left

a personal thumb drive which contained child pornography and police

activity reports in a patrol-room computer. The court noted in footnote 4

that abandonment of property occurs only if the defendant intended to

abandon the property and his decision to abandon it was not due to police

misconduct (citing McDuff, 939 S.W.2d at 616) and it was undisputed that

the defendant’s abandonment of his thumb drive was unintentional. See

Miller, 335 S.W.3d at 858.

        In Matthews v. State, 431 S.W.3d 596 (Tex. Crim. App. 2014), the

Court of Criminal Appeals held that the defendant had abandoned the

borrowed vehicle when he took off running after the police conducted a

stop.

        Even the United States Supreme Court has addressed the

abandonment issue. In Abel v. United States, 362 U.S. 217 (U.S. 1960),

the defendant who was illegally present in the United States, and who was

                                         5
under suspicion of espionage by the FBI, was arrested in a hotel room.

During the search of the hotel room, a forged birth certificate was found in

the trash can of the hotel room. The Court held that it was lawful to seize

items thrown away in the wastepaper basket where the defendant had

abandoned the articles contained in the basket by throwing them away.

     None of those situations exist here which establish intentional

abandonment of the vehicle. Mr. Vasquez was lying on the ground at the

time of the collision. 14R31, 78. Mr. Vasquez was nonresponsive at the

collision scene. 14R32, 78. District Attorney investigator Trinidad Lopez

called for medical assistance. 14R31.

     Meanwhile, the State maintained control over the vehicle. On or

about January 3, 2012, a subpoena was issued to obtain the EDR from

Rey’s Auto Parts. CR291; 10R13–14. Although investigator Homer Flores

initially obtained the EDR from the wrong vehcile pursuant to a grand jury

subpoena, he later obtained the correct EDR without a warrant. 10R14. No

evidence exists that Mr. Vasquez intentionally abandoned said vehicle.

Even if he wanted to obtain return of the vehicle, he could not have

because it was still in the State’s custody, as the State needed it to obtain

evidence as on January 3, 2012 and thereafter. Id.




                                      6
      It should also be strongly noted that the abandonment issue was not

raised in the trial court and Mr. Vasquez nor the trial court had no

opportunity to address said abandonment issue at said time.

      As such, no evidence exists that Mr. Vasquez intentionally

abandoned the vehicle at issue. The judgment of the trial court and opinion

of the appellate court should be vacated, reversed, and this case should be

remanded to the trial court for a new trial.

                         CONCLUSION AND PRAYER

      WHEREFORE, Mr. Vasquez prays that this Court vacate and reverse

the appellate court’s and trial court’s decisions and remand this case to the

trial court for a new trial. Mr. Vasquez also prays that this Court grant such

other relief to which he is justly entitled.


                                       Respectfully submitted,

                                       Law Office of Victoria Guerra
                                       3219 N. McColl Rd.
                                       McAllen, Texas 78501
                                       (956) 618-2609
                                       (956) 618-2553 (facsimile)


                                By:    /s/ Victoria Guerra
                                       Victoria Guerra
                                       State Bar Number: 0857900
                                       Appellate Attorney for Appellant



                                         7
                       CERTIFICATE OF SERVICE

      On this 27th day February, 2015, the undersigned delivered a copy of

the     foregoing    Appellant’s     brief    to     Appellee’s    Counsel

jaolson_ccda@yahoo.com or his facsimile: 210-858-6780 and to the State

Prosecuting Attorney at its fax: (512) 463-5724.

                                         /s/ Victoria Guerra
                                         Victoria Guerra
                                         Attorney for Appellant

                    CERTIFICATION OF COMPLIANCE

      In compliance with TRAP 9.4(i)(3), the undersigned certifies that the

number of words in this brief, excluding those matters listed in Rule 9.4(i)

(l), is 1092.

                                   /s/ Victoria Guerra
                                   Victoria Guerra




                                     8
                             Fourth Court of Appeals
                                    San Antonio, Texas
                                MEMORANDUM OPINION
                                        No. 04-13-00338-CR
                                        No. 04-13-00339-CR

                                    Elias Esequiel VASQUEZ,
                                             Appellant

                                                 v.
                                                The
                                        The STATE of Texas,
                                              Appellee

                     From the 229th Judicial District Court, Starr County, Texas
                           Trial Court Nos. 11-CRS-270 & 11-CRS-272
                            Honorable Ana Lisa Garza, Judge Presiding

Opinion by:      Sandee Bryan Marion, Justice

Sitting:         Karen Angelini, Justice
                 Sandee Bryan Marion, Justice
                 Marialyn Barnard, Justice

Delivered and Filed: December 10, 2014

AFFIRMED

           At around 11:00 p.m., on February 27, 2011, appellant was involved in an automobile

accident that resulted in the death of Guillermo Olivares III and bodily injury to Yadira Pena.

Appellant pled guilty to intoxication manslaughter in the death of Olivares and guilty to

intoxication assault for the injuries sustained by Pena. A jury assessed punishment. In both

appeals, appellant asserts the trial court erred by denying his motion to suppress. We affirm the

trial court’s judgment in both cases.
                                                                      04-13-00338-CR & 04-13-00339-CR


                                         BACKGROUND

       At the time of the accident, appellant was driving a maroon 2005 GMC Canyon owned by

his mother, who had consented to his using the vehicle. After the accident, the vehicle was towed

to a salvage yard. The complainants’ vehicle, a 2008 Silverado, also was towed to the same salvage

yard. Approximately eleven months after the accident, an investigator with the Starr County

District Attorney’s Office went to the salvage yard to obtain the electronic data recorder (“the

EDR”) from one of the vehicles. Joel Diaz, who managed the salvage yard, testified he was

approached by the investigator who gave him a grand jury subpoena duces tecum for the Silverado.

Diaz gave the investigator the EDR from the Silverado. About one week later, an investigator

from the District Attorney’s Office returned to the salvage yard, and told Diaz he had taken the

EDR from the wrong vehicle, and he needed the EDR from the GMC Canyon. Diaz said the

investigator had no paperwork with him; nevertheless, Diaz gave the investigator the EDR from

the GMC Canyon. Appellant later filed a motion to suppress the EDR on the grounds it was

illegally obtained. The trial court denied his motion, and these appeals ensued.

                                            STANDING

       In these appeals, we must decide whether appellant had standing to challenge the State’s

obtaining the EDR from the GMC Canyon. “The rights protected by the Fourth Amendment to

the U.S. Constitution and Article I, Section 9, of the Texas Constitution are personal.” Matthews

v. State, 431 S.W.3d 596, 606 (Tex. Crim. App. 2014). “As such, [a defendant] must show that

the search violated his, rather than a third party’s, legitimate expectation of privacy.” Id. (emphasis

in original). A defendant seeking to suppress evidence obtained in violation of the Fourth

Amendment must, therefore, show (1) that he exhibited an actual “subjective expectation of

privacy in the place invaded,” and (2) that “society is prepared to recognize that expectation of

privacy as objectively reasonable.” State v. Betts, 397 S.W.3d 198, 203 (Tex. Crim. App. 2013).
                                                 -2-
                                                                    04-13-00338-CR & 04-13-00339-CR


Only after a defendant has established his standing to complain may a court consider whether he

has suffered a substantive Fourth Amendment violation. Kothe v. State, 152 S.W.3d 54, 59 (Tex.

Crim. App. 2004). Standing is reviewed de novo because it is a question of law. Id. In a motion

to suppress, the movant has the burden to establish standing. State v. Klima, 934 S.W.2d 109, 110

(Tex. Crim. App. 1996).

        A person has an expectation of privacy in a vehicle that he does not own if he has gained

possession of the car from the owner with the owner’s consent or from someone authorized to give

permission to drive it. See Matthews, 431 S.W.3d at 607-08. In this case, appellant’s mother

testified she gave appellant permission to drive her GMC Canyon. Therefore, at the time of the

accident, appellant had both a subjective and reasonable expectation of privacy in his mother’s

GMC Canyon. See id. at 610.

        However, a party lacks standing to object to the reasonableness of a search of abandoned

property. McDuff v. State, 939 S.W.2d 607, 616 (Tex. Crim. App. 1997). Abandonment of

property occurs when the defendant intends to abandon the property and his decision to abandon

it is not due to police misconduct. Id. “When police take possession of abandoned property

independent of police misconduct[,] there is no seizure under the Fourth Amendment.” Id.

Abandonment is primarily a question of intent that can be inferred from the words and actions of

the parties and other circumstances surrounding the alleged abandonment. Id. The dispositive

issue is whether the defendant voluntarily discarded, left behind, or otherwise relinquished his

interest in property so that he could no longer retain a reasonable expectation of privacy with

regard to it at the time of the search. Id.

        Shortly after the accident, the GMC Canyon was towed to the salvage yard. Nothing in the

record indicates either appellant or his mother attempted to regain possession of the vehicle in the

almost eleven months following the February 27, 2011, accident. The investigator obtained the
                                                -3-
                                                                   04-13-00338-CR & 04-13-00339-CR


GMC Canyon’s EDR from Diaz on January 3, 2012. Diaz testified he has a Texas Nonrepairable

Vehicle title to the GMC Canyon, and the State introduced a document showing the current owner

of the vehicle to be State Farm County Mutual. This document also stated: “Registration invalid.

. . . Nonrepairable Vehicle Title Issued. Tx Title Surrendered on 2011/05/13. . . . Salvaged on

2012/07/18. Evidence Surrendered: Tx Nonrepair Cert of Title . . . .” On this record, we conclude

appellant abandoned any reasonable expectation of privacy in his mother’s vehicle. Therefore, he

lost standing to challenge the State’s obtaining the EDR from the vehicle.

                                         CONCLUSION

       We conclude the trial court did not err in denying appellant’s motion to suppress.

Therefore, we overrule appellant’s issue in both appeals, and affirm the trial court’s judgments.


                                                 Sandee Bryan Marion, Justice

Do not publish




                                               -4-
