                                                                         ACCEPTED
                                                                     13-14-00524-CR
                                                     THIRTEENTH COURT OF APPEALS
                                                            CORPUS CHRISTI, TEXAS
                                                                7/31/2015 5:35:18 PM
                                                              CECILE FOY GSANGER
                                                                              CLERK


             No. 13-14-524-CR

       IN THE COURT OF APPEALS RECEIVED IN
                              13th COURT OF APPEALS
 FOR THE THIRTEENTH DISTRICT OF TEXAS
                           CORPUS  CHRISTI/EDINBURG, TEXAS
           AT CORPUS CHRISTI   7/31/2015 5:35:18 PM
                                        CECILE FOY GSANGER
                                              Clerk

     KATHARINA CASTELLANOS,
          APPELLANT,                                     FILED
                                               IN THE 13TH COURT OF APPEALS

                     v.                          CORPUS CHRISTI - EDINBURG


                                                       073115
        THE STATE OF TEXAS,                    CECILE FOY GSANGER, CLERK
             APPELLEE.                         BY CCoronado




ON APPEAL FROM COUNTY COURT AT LAW # 1
        NUECES COUNTY, TEXAS

        BRIEF FOR THE STATE


                Douglas K. Norman
                State Bar No. 15078900
                Assistant District Attorney
                105th Judicial District of Texas
                901 Leopard, Room 206
                Corpus Christi, Texas 78401
                (361) 888-0410
                (361) 888-0399 (fax)
                douglas.norman@co.nueces.tx.us

                Attorney for Appellee


    ORAL ARGUMENT IS REQUESTED
                                      TABLE OF CONTENTS

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

STATEMENT OF FACTS ..............................................................................1

         I. The Charges. .....................................................................................1
         II. Motion to Suppress.........................................................................1
         III. Trial on Guilt-Innocence. .............................................................3
         IV. Punishment and Sentencing. ........................................................6
         V. Motion for New Trial. ....................................................................6

SUMMARY OF THE ARGUMENT ..............................................................7

ARGUMENT ...................................................................................................8

Reply Point No. 1
(Responsive to Appellant’s First and Second Issues on Appeal)
Castellanos failed to show that the trial court abused its discretion in
denying her motion to suppress, or in allowing evidence of the blood test
in spite of her claim that the conditions of the blood draw were not
sanitary............................................................................................................8

         I. Waiver. ..............................................................................................8
         II. Standard of Review. .................................................................... 10
         III. Consent as an Exception to Statute. ......................................... 11
         IV. Burden to Prove Statutory Compliance................................... 12
         V. Sanitary Environment. ................................................................ 13

Reply Point No. 2
(Responsive to Appellant’s Third Issue on Appeal)
Castellanos failed to show that her trial attorney rendered ineffective
assistance of counsel by neglecting to preserve her objection to the blood
draw. ............................................................................................................. 15
Reply Point No. 3
(Responsive to Appellant’s Fourth Issue on Appeal)
The trial court did not err in punishing Castellanos for a Class A
Misdemeanor without a jury finding that her blood alcohol level
exceeded 0.15. .............................................................................................. 17

         I. Element or Punishment Enhancement? ..................................... 17
         II. Other Considerations. ................................................................. 20
         III. Constitutional Requirements. ................................................... 22

PRAYER ....................................................................................................... 23

RULE 9.4 (i) CERTIFICATION .................................................................. 24

CERTIFICATE OF SERVICE ..................................................................... 24




                                                       ii
                                    INDEX OF AUTHORITIES

                                                       Cases

Amador v. State, 275 S.W.3d 872 (Tex. Crim. App. 2009). .................. 10, 13

Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000). ................. 22

Beeman v. State, 86 S.W.3d 613 (Tex. Crim. App. 2002). .......................... 12

Bennett v. State, 723 S.W.2d 359 (Tex. App.-Fort Worth 1987, no pet.). ... 11

Ex parte Boyd, 58 S.W.3d 134 (Tex. Crim. App. 2001). ............................. 22

Brooks v. State, 957 S.W.2d 30 (Tex. Crim. App. 1997). ............................ 18

Calton v. State, 176 S.W.3d 231 (Tex. Crim. App. 2005). .......................... 18

Galitz v. State, 617 S.W.2d 949 (Tex.Crim.App.1981)...................................8

Gutierrez v. State, 221 SW3d 680 (Tex. Crim. App. 2007). ........................ 11

Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997). .......................... 10

Jackson v. State, 973 S.W.2d 954 (Tex. Crim. App. 1998). ........................ 15

State v. Johnston, 336 S.W.3d 649 (Tex. Crim. App. 2011). ....................... 14

Kimmelman v. Morrison, 477 U.S. 365, 106 S. Ct. 2574 (1986). .......... 15, 16

King v. State, 05-10-00610-CR, 2012 WL 414801 (Tex. App.—Dallas Feb.
10, 2012, pet. ref'd) (not designated for publication). .................................. 11

Long v. State, 800 S.W.2d 545 (Tex. Crim. App. 1990). ................................9

Moreno v. State, 124 S.W.3d 339 (Tex. App.—Corpus Christi 2003, no
pet.). ............................................................................................................ 8, 9

Morrison v. State, 71 S.W.3d 821(Tex. App.-Corpus Christi 2002,
no pet.). ....................................................................................................... 8, 9

                                                          iii
Navarro v. State, --- S.W.3d ---, No. 14-13-00706-CR, 2015 WL 4103565
(Tex. App.—Houston [14th Dist.] July 7, 2015, no. pet. h.) (not yet
published). ............................................................................................... 18, 19

State v. Neesley, 239 S.W.3d 780 (Tex. Crim. App. 2007). ......................... 12

Pham v. State, 175 S.W.3d 767 (Tex. Crim. App. 2005). ............................ 13

Premo v. Moore, 562 U.S. 115, 131 S. Ct. 733 (2011). ............................... 16

Ramos v. State, 245 SW3d 410 (Tex. Crim. App. 2008). ........................... 10

Roberson v. State, 852 S.W.2d 508 (Tex. Crim. App. 1993). ...................... 15

State v. Robinson, 334 S.W.3d 776 (Tex. Crim. App. 2011). ............... 11 - 13

Schmerber v. California, 384 U.S. 757 (1966). ............................................ 14

Sisk v. State, 131 S.W.3d 492 (Tex. Crim. App. 2004). ............................... 22

Stairhime v. State, --- S.W.3d ---, PD-1071-14, 2015 WL 3988925 (Tex.
Crim. App. July 1, 2015) (not yet published). .......................................... 9, 10

Subrias v. State, 278 S.W.3d 406 (Tex. App.-San Antonio 2008,
pet. ref'd). ...................................................................................................... 11

Thomas v. State, 408 S.W.3d 877 (Tex. Crim. App. 2013). ......................... 10

Ex parte White, 400 S.W.3d 92 (Tex. Crim. App. 2013). ............................ 22

Yazdchi v. State, 428 S.W.3d 831 (Tex. Crim. App. 2014). ......................... 20

                                             Statutes & Rules
Tex. Penal Code § 1.07. ................................................................................ 17

Tex. Penal Code § 19.02. .............................................................................. 21

Tex. Penal Code § 20.04. .............................................................................. 22
                                                         iv
Tex. Penal Code § 49.01. .............................................................................. 19

Tex. Penal Code § 49.04. .............................................................................. 17

Tex. Penal Code §49.045. ............................................................................. 21

Tex. Penal Code § 49.07. .............................................................................. 21

Tex. Penal Code § 49.08. .............................................................................. 21

Tex. Code Crim. Proc. art. 37.07. ................................................................. 23

Tex. Transp. Code Ann. § 724.012. .............................................................. 11

Tex. Transp. Code Ann. § 724.017. .............................................................. 14

Tex. R. App. P. 33.1. .......................................................................................8

http://www.merriam-webster.com/dictionary/sanitary . ............................... 14




                                                      v
                             NO. 13-14-524-CR

KATHARINA CASTELLANOS,                 §    COURT OF APPEALS
        Appellant,                     §
                                       §
V.                                     §    FOR THE THIRTEENTH
                                       §
THE STATE OF TEXAS,                    §
         Appellee.                     §    DISTRICT OF TEXAS

                        BRIEF FOR THE STATE

TO THE HONORABLE COURT OF APPEALS:

                        STATEMENT OF FACTS

                              I. The Charges.

      Katharina Castellanos was charged by information with Driving

While Intoxicated, and with the additional allegation that “at the time of

performing an analysis of a specimen of the defendant’s BLOOD, the

analysis showed an alcohol concentration level of 0.15 or more.” (CR p. 6)

                          II. Motion to Suppress.

      In her Motion to Suppress, Castellanos complained that she was

“illegally detained,” that a subsequent field sobriety test was not properly

conducted, that her blood was drawn without her consent, that the initial stop

and detention was illegal, and that the blood test, among other things, was “a

direct result of the violations of Defendant’s rights under the Fourth

Amendment to the Constitution of the United States and the Statutes and
Constitution of the State of Texas,” yet she said nothing about any error in

the procedure by which her blood was drawn. (CR p. 26)

      At the beginning of the hearing on the motion to suppress, Castellanos

represented to the trial court that the only issues she was raising were

propriety of the stop, the validity of her consent, and whether the standard

field sobriety tests were done properly. (RR vol. 2, p. 5)

      Officer Allan Miller testified for the State that Castellanos voluntarily

offered or consented to give a blood sample. (RR vol. 2, pp. 20, 21) On

cross-examination, Officer Miller testified that Castellanos’ blood was

drawn in a big chair, in a hallway at the hospital, where blood was routinely

drawn, but that he did not know whether it was routinely sterilized. (RR vol.

2, pp. 51-52)      On re-direct, Officer Miller testified that he had never

observed anything unsanitary in the hallway where the blood was drawn.

(RR vol. 2, p. 59) On re-cross, Officer Miller testified that he saw patients

passing through the hall in question and it was possible that there were sick

people there. (RR vol. 2, p. 60)

      Officer Ronald Rayos testified for the State that the hallway in

question is a sanitary place, based on his experience in taking people there

for blood draws for some seven years. (RR vol. 2, p. 64)            On cross-

examination, Officer Rayos explained that the blood draw was not done in a


                                       2
waiting area, but in a secured area behind the entry way, that it was in effect

a separate room with only the blood draw participants present, and that this

was not a place where people were just walking by. (RR vol. 2, pp. 68-70)

      Katharine Castellanos testified for the defense that, in her opinion,

the area in which her blood was drawn was not maintained in a sanitary

condition. (RR vol. 2, p. 90)

      After both the State and defense rested at the suppression hearing, the

trial court indicated that it did not need argument, but made no ruling and

merely asked for the defense attorney’s e-mail before ending the

proceedings. (RR vol. 2, pp. 102-03)

      An initialed docket sheet entry immediately below a notation

concerning the pre-trial hearing indicates that the motion to suppress was

denied. (CR p. 89)

                       III. Trial on Guilt-Innocence.

      At trial, the trial court instructed the prosecutor not to read the

enhancement portion of the information, which she did not, reading only that

portion charging Castellanos with a DWI. (RR vol. 3, p. 66-67)

      Officer Allan Miller testified for the State that Castellanos signed a

consent to draw her blood. (RR vol. 3, pp. 88-89) Officer Miller testified

that he saw a phlebotomist draw Castellanos’ blood and that it appeared to


                                       3
be a clean environment, and that he used a swab to clean the area where the

blood was drawn. (RR vol. 3, p. 90) On cross-examination, Officer Miller

confirmed that Castellanos consented to giving blood (RR vol. 3, p. 125),

that he took Castellanos to a secure area for the blood draw where he did not

believe that regular patients were allowed without escort (RR vol. 3, pp.

128-29), and that he took Castellanos to a blood draw chair in the hallway

where people were going back and forth. (RR vol. 3, pp. 129-30) Officer

Miller admitted that he did not observe anyone clean the chair in which

Castellanos’ blood was drawn, nor did he know how long it had been since

another patient had been in that chair (RR vol. 3, pp. 135-36), and that he

could not testify to the sanitary conditions of the hospital. (RR vol. 3, pp.

136-37) On redirect, Officer Miller testified that, to his knowledge, the

conditions in the hospital were not unsanitary. (RR vol. 3, pp. 137, 139)

      When DPS Forensic Scientist Emily Bonvino testified for the State

concerning her testing of the blood evidence and the State offered the blood

kit into evidence, Castellanos objected only to the chain of custody. (RR

vol. 3, p. 195) When the State then offered Bonvino’s report into evidence,

which contained the critical test result placing Castellanos at an alcohol

concentration of 0.198, her attorney announced, “We have no objection at

this time.” (RR vol. 3, p. 199; SX # 5)


                                      4
      After the State rested its case, Castellanos objected that it was error

not to read the enhancement to the jury and that this resulted in reducing the

present case to a Class B Misdemeanor rather than the enhanced Class A

Misdemeanor. (RR vol. 4, pp. 54-56) However, without making a specific

ruling on the objection, the trial court asked the defense to proceed, and it

did by calling Castellanos to testify. (RR vol. 4, p. 56)

      Katharina Castellanos testified that the chair was dirty (RR vol. 4, p.

76), that it had a sticky residue on it, and that there were patients and

families walking through the hall where her blood was drawn. (RR vol. 4,

pp. 78-79)

      The charge of the court at guilt-innocence defined the methods of

committing DWI, but said nothing about the enhancement for a blood

analysis showing an alcohol concentration of 0.15.          The charge also

instructed the jury in Paragraph 4 concerning the statutory requirement that

the specimen be taken in a sanitary place, and in Paragraph 6 to disregard the

blood evidence if the sample was not taken in a sanitary place. (CR p. 65)

      Castellanos’ attorney announced that he had no objections to the jury

charge. (RR vol. 4, p. 113)




                                       5
                       IV. Punishment and Sentencing.

         At the punishment phase of trial, Castellanos attorney again argued

that her conviction was for a Class B Misdemeanor because the

enhancement had not been submitted to the jury at guilt-innocence. (RR vol.

5, p. 12) However, the trial court found that Castellanos had been convicted

of a Class A Misdemeanor, without further objection from the defense. (RR

vol. 5, p. 16) Accordingly, Castellanos having elected to have punishment

assessed by the court, the trial judge assessed punishment at a 365-day jail

term and a $1,000 fine, probating the jail sentence for twelve months. (CR

p. 71)

                           V. Motion for New Trial.

         Castellanos filed a motion for new trial complaining that the trial

court erred in failing to read the enhancement allegation to the jury prior to

her plea, and that the charge did not require the jury to find her guilty of that

enhancement, such that the trial court erred in finding her guilty of the

enhanced Class A Misdemeanor DWI and punishing her at a higher level

than was allowed for a Class B. (CR p. 76)

         The trial court denied the motion for new trial by written order. (CR

p. 80)




                                        6
                   SUMMARY OF THE ARGUMENT

      First and Second Issues – Castellanos waived error by failing to

challenge the conditions of the blood draw in her motion to suppress and by

announcing that she had “no objection” to the blood evidence at trial.

Alternatively, the trial court acted within its discretion in finding that

Castellanos failed to prove that the blood was not drawn in a sanitary place.

      Third Issue – Because Castellanos failed to prove the merits of her

motion to suppress, she failed to prove that her trial attorney was ineffective

for neglecting to preserve this complaint for appeal.

      Fourth Issue – The statutory provision for enhancement of a DWI

based on a 0.15 alcohol concentration should be interpreted to be a

punishment enhancement rather than an element of a separate DWI offense.




                                       7
                                ARGUMENT

                              Reply Point No. 1
      (Responsive to Appellant’s First and Second Issues on Appeal)
       Castellanos failed to show that the trial court abused its discretion
in denying her motion to suppress, or in allowing evidence of the blood
test in spite of her claim that the conditions of the blood draw were not
sanitary.

      Castellanos complains by these issues that the State failed to prove

that her blood was drawn under sanitary conditions, in conformity with the

Implied Consent / Mandatory Draw Statute.

                                  I. Waiver.

      A motion to suppress is a specialized objection to the admissibility of

evidence, such that it must meet the requirements of an objection. Moreno

v. State, 124 S.W.3d 339, 343 (Tex. App.—Corpus Christi 2003, no pet.);

Morrison v. State, 71 S.W.3d 821, 826 (Tex. App.-Corpus Christi 2002, no

pet.) (citing Galitz v. State, 617 S.W.2d 949, 952 n. 10 (Tex.Crim.App.1981)

(op. on reh'g)). Those requirements for a complaint to be presented on

appeal include a timely request, objection, or motion made to the trial court,

stating the grounds “with sufficient specificity to make the trial court aware

of the complaint.” Tex. R. App. P. 33.1(a)(1)(A); Moreno, 124 S.W.3d at

343; Morrison, 71 S.W.3d at 826. The specificity requirement has a dual

objective: (1) to inform the trial court of the basis for the objection; and (2)

to provide opposing counsel the opportunity to cure the objection or supply

                                       8
other testimony. Moreno, 124 S.W.3d at 343; Morrison, 71 S.W.3d at 826

(citing Long v. State, 800 S.W.2d 545, 548 (Tex. Crim. App. 1990). In

addition, if the objection made in the trial court differs from the complaint

made on appeal, a defendant has not preserved any error for review. Morris,

89 SW3d at 150.

      In the present case, Castellanos’ motion to suppress, as well as her

representations before the trial court at the hearing on that motion, failed to

convey the present objection to the conditions of the blood draw. For this

reason alone, she waived error.

      However, she also waived error by her later announcement of “no

objection” to the test results that amounted to the key evidence she earlier

sought to exclude.

      An affirmative statement of “no objection” will operate to waive

appellate review of the denial of a motion to suppress evidence, unless the

record otherwise establishes that no waiver was either intended or

understood.   Stairhime v. State, --- S.W.3d ---, PD-1071-14, 2015 WL

3988925, at *3-4 (Tex. Crim. App. July 1, 2015) (not yet published).

Specifically, “if from the record as a whole the appellate court simply cannot

tell whether an abandonment was intended or understood, then, consistent

with prior case law, it should regard the ‘no objection’ statement to be a


                                       9
waiver of the earlier-preserved error.” Id. (quoting Thomas v. State, 408

S.W.3d 877, 885 (Tex. Crim. App. 2013)).

      In the present case, when the State sought to present the blood test

results through Bonvino’s testimony and report, the defense initially made

objection only to chain of custody, and eventually conceded that it had “no

objection” to the evidence in question, without ever raising a complaint

about the manner of the blood draw. The response of “no objection” waived

any prior complaint, especially in the face of the lack of a more definitive

objection and pre-trial ruling.

      However, even if error had been preserved, the present complaint

lacks merit.

                           II. Standard of Review.

      The trial court is the sole judge of the credibility of witnesses at a

hearing on a motion to suppress. Guzman v. State, 955 S.W.2d 85, 89 (Tex.

Crim. App. 1997). A trial court's ruling on a motion to suppress is subject to

review on appeal for abuse of discretion. Amador v. State, 275 SW3d 872,

878 (Tex. Crim. App. 2009). “[T]he trial court's ruling will be upheld if it is

reasonably supported by the record and is correct under any theory of law

applicable to the case.” Ramos v. State, 245 SW3d 410, 418 (Tex. Crim.

App. 2008).


                                      10
      In reviewing a trial court's ruling on a motion to suppress, the

evidence must be reviewed in the light most favorable to the trial court's

ruling. State v. Robinson, 334 S.W.3d 776, 778 (Tex. Crim. App. 2011);

Gutierrez v. State, 221 SW3d 680, 687 (Tex. Crim. App. 2007). When the

trial court fails to make explicit findings of fact, as in this case, the

reviewing court must imply fact findings that support the trial court's ruling

so long as the evidence supports those implied findings.      Gutierrez, 221

SW3d at 687.

                 III. Consent as an Exception to Statute.

      Chapter 724 contemplates the taking of a blood sample without

explicit consent, either through passive implied consent in which the request

for a sample is not affirmatively refused, or, in limited circumstances,

through a forced draw when the request is affirmatively refused. See Tex.

Transp. Code Ann. § 724.012 (a & b).

      Some authority suggests that the statutory requirements for a blood

draw under Chapter 724 of the Transportation Code do not apply when the

blood draw is independently authorized pursuant to the suspect’s explicit

consent. See Subrias v. State, 278 S.W.3d 406, 408 (Tex. App.-San Antonio

2008, pet. ref'd); Bennett v. State, 723 S.W.2d 359, 361 (Tex. App.-Fort

Worth 1987, no pet.); King v. State, 05-10-00610-CR, 2012 WL 414801, at


                                      11
*4 (Tex. App.—Dallas Feb. 10, 2012, pet. ref'd) (not designated for

publication); see also State v. Neesley, 239 S.W.3d 780, 786 (Tex. Crim.

App. 2007) (“No statute is needed to confer authority to obtain a specimen

of breath or blood from someone who freely and expressly consents to every

single draw”).

      The Court of Criminal Appeals has noted that “[t]he implied consent

law expands on the State's search capabilities,” and that “[i]t gives officers

an additional weapon in their investigative arsenal,” such that construing the

statute to “giv[e] DWI suspects more protection than other criminal suspects

[would be] an absurd result contrary to the statute's intent.” Beeman v. State,

86 S.W.3d 613, 616 (Tex. Crim. App. 2002).

      Accordingly, because Castellanos did explicitly consent to the blood

draw in the present case, the statutory requirements of Chapter 724 did not

apply and were not a valid ground for suppressing the results.

      However, even if the statutory requirements did apply, Castellanos

failed to prove that State did not comply with the statute in taking her blood.

                 IV. Burden to Prove Statutory Compliance.

      A defendant who alleges a violation of the Fourth Amendment has the

burden of producing evidence that rebuts the presumption of proper police

conduct.    State v. Robinson, 334 S.W.3d 776, 778-79 (Tex. Crim. App.


                                      12
2011); Amador v. State, 275 S.W.3d 872, 878 (Tex. Crim. App. 2009).

Likewise, a defendant who moves for suppression under Article 38.23 due to

the violation of a statute has the burden of producing evidence of a statutory

violation.   Robinson, 334 S.W.3d at 779; Pham v. State, 175 S.W.3d 767,

772 (Tex. Crim. App. 2005).

      Specifically, the defendant must first produce evidence to prove a

statutory violation of the requirements of Section 724.017 before the State is

ever put to its burden to prove compliance with the blood draw requirements

of the statute. See Robinson, 334 S.W.3d at 779 (where defendant failed to

produce evidence that blood was not drawn by a qualified person, State

never had the burden to prove that blood sample was drawn by a qualified

person).

      In the present case, at the hearing on motion to suppress, Castellanos

presented nothing more than her conclusory and unsubstantiated opinion that

the area in question was not maintained in a sanitary condition.    This was

arguably insufficient even to raise, much less conclusively prove, the issue

of statutory non-compliance.

                         V. Sanitary Environment.

      Although the Implied Consent / Mandatory Draw provisions of the

Transportation Code require, among other things, that “[t]he blood specimen


                                      13
must be taken in a sanitary place,” Tex. Transp. Code Ann. § 724.017 (a-1),

the Code does not define “sanitary place.”

      The Merriam-Webster Online Dictionary defines the term “sanitary”

as “of or relating to good health or protection from dirt, infection, disease,

etc,” and “free from dirt, infection, disease, etc.”    http://www.merriam-

webster.com/dictionary/sanitary (last accessed July 24, 2015).

      Similarly, for purposes of the Fourth Amendment “reasonableness”

requirement, blood draws need not even be conducted in a hospital, clinic, or

medical environment, as long as the environment was a safe place to draw

blood in the sense that it did not “invite an unjustified element of personal

risk of infection or pain.” State v. Johnston, 336 S.W.3d 649, 662-63 (Tex.

Crim. App. 2011) (quoting Schmerber v. California, 384 U.S. 757, 772

(1966)).

      In the present case, Officer Rayos in particular testified that

Castellanos’ blood was drawn in a sanitary place and a secured area, and the

trial court was well within its discretion in determining that Castellanos

failed to show that the blood was not drawn in a sanitary place.

      Castellanos’ first and second issues on appeal should be overruled.




                                      14
                             Reply Point No. 2
            (Responsive to Appellant’s Third Issue on Appeal)
       Castellanos failed to show that her trial attorney rendered
ineffective assistance of counsel by neglecting to preserve her objection
to the blood draw.

      The defendant must prove that his motion to suppress would have

been granted in order to satisfy an ineffective assistance claim based on

counsel’s failure to file or effectively pursue such a motion. Jackson v.

State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998) (citing Roberson v.

State, 852 S.W.2d 508, 510–12 (Tex. Crim. App. 1993)). Specifically, in the

context of an allegedly illegal search, the Court of Criminal Appeals requires

that Applicant do more than merely raise “questions about the validity of

the search,” but asserts that he has “the burden to develop facts and details of

the search sufficient to conclude that the search was invalid.” Jackson, 973

S.W.2d at 957.

      Likewise, the Supreme Court has set forth the Applicant’s burden as

follows:

      Where defense counsel's failure to litigate a Fourth Amendment claim
      competently is the principal allegation of ineffectiveness, the
      defendant must also prove that his Fourth Amendment claim is
      meritorious and that there is a reasonable probabilty that the verdict
      would have been different absent the excludable evidence in order to
      demonstrate actual prejudice.

Kimmelman v. Morrison, 477 U.S. 365, 375, 106 S. Ct. 2574 (1986).

Moreover, in addition to a meritorious Fourth Amendment claim, the

                                       15
Supreme Court requires more to prove an ineffective assistance claim, as

follows:

      Although a meritorious Fourth Amendment issue is necessary to the
      success of a Sixth Amendment claim like respondent's, a good Fourth
      Amendment claim alone will not earn a prisoner federal habeas relief.
      Only those habeas petitioners who can prove under Strickland that
      they have been denied a fair trial by the gross incompetence of their
      attorneys will be granted the writ and will be entitled to retrial without
      the challenged evidence.

Kimmelman, 477 U.S. at 382. A more recent Supreme Court case has

characterized this additional requirement set forth in Kimmelman as proof

that “no competent attorney would think a motion to suppress would have

failed.” Premo v. Moore, 562 U.S. 115, 124, 131 S. Ct. 733 (2011) (citing

Kimmelman, 477 U.S. at 382).

      In the present case, for the reasons explained above, Castellanos’

underlying complaint concerning the blood draw was meritless, and thus

may not serve as a valid basis for a claim of ineffective assistance of

counsel.

      Castellanos’ third issue on appeal should be overruled.




                                      16
                           Reply Point No. 3
          (Responsive to Appellant’s Fourth Issue on Appeal)
      The trial court did not err in punishing Castellanos for a Class A
Misdemeanor without a jury finding that her blood alcohol level
exceeded 0.15.

      The Texas DWI Statute provides as follows concerning the primary

offense and the various levels of punishment:

      (a) A person commits an offense if the person is intoxicated while
      operating a motor vehicle in a public place.
      (b) Except as provided by Subsections (c) and (d) and Section 49.09,
      an offense under this section is a Class B misdemeanor, with a
      minimum term of confinement of 72 hours.
      (c) If it is shown on the trial of an offense under this section that at the
      time of the offense the person operating the motor vehicle had an open
      container of alcohol in the person's immediate possession, the offense
      is a Class B misdemeanor, with a minimum term of confinement of
      six days.
      (d) If it is shown on the trial of an offense under this section that an
      analysis of a specimen of the person's blood, breath, or urine showed
      an alcohol concentration level of 0.15 or more at the time the analysis
      was performed, the offense is a Class A misdemeanor.

Tex. Penal Code § 49.04.

                I. Element or Punishment Enhancement?

      The elements of a criminal offense are defined in the Penal Code as

“the forbidden conduct, the required culpability, any required result, and the

negation of any exception to the offense.” Tex. Penal Code § 1.07(a)(22).

The Court of Criminal Appeals has referred to this definition in attempting

to discern whether any given fact constitutes an element of the offense, as

opposed to merely a punishment enhancement, and has also indicated that it

                                       17
is appropriate to look to the plain language of the statute involved. See

Calton v. State, 176 S.W.3d 231, 233 (Tex. Crim. App. 2005).

      In Calton, the Court distinguished true elements of the offense from

non-jurisdictional prior convictions alleged merely for enhancement of an

offense, which it characterized as “an historical fact to show the persistence

of the accused, and the futility of ordinary measures of punishment as related

to him.” 176 S.W.3d at 233 (quoting Brooks v. State, 957 S.W.2d 30, 32

(Tex. Crim. App. 1997)).

      Rejecting the State’s contention that the prior conviction requirement

was not an element of third-degree evading arrest merely because it did not

effect the jurisdiction of the trial court, the Court in Calton looked to the

plain language of the evading statute to conclude that a prior conviction was

in fact an element of the third-degree offense. 176 S.W.3d at 234-35.

      The Fourteenth Court of Appeals has recently concluded that the

Subsection (d) showing of a 0.15 analysis amounts to an element of a

separate enhanced DWI offense rather than merely a punishment

enhancement. Navarro v. State, --- S.W.3d ---, No. 14-13-00706-CR, 2015

WL 4103565, at *6 (Tex. App.—Houston [14th Dist.] July 7, 2015, no. pet.

h.) (not yet published). The Navarro Court relied in part on a mistaken

assumption that Subsection (d) applied “whenever a person charged with


                                      18
driving while intoxicated is shown to have ‘an alcohol concentration level of

0.15 or more,’” and that this element “represents a specific type of forbidden

conduct—operating a motor vehicle while having an especially high

concentration of alcohol in the body.” 2015 WL 4103565, at *6.

      However, a close reading of Subsection (d) reveals that it does not

require a showing that the defendant actually had a 0.15 alcohol

concentration or that he was operating a motor vehicle with that

concentration, but only that a later analysis of a specimen of his blood

showed a 0.15 concentration at the time the analysis was performed.

      This is not an element under the definition of PC 1.07(a)(22). It has

nothing to do with the defendant’s conduct at the time of the offense or the

direct results thereof. Rather, it is a background evidentiary fact having to

do with what an analysis of his blood showed. There is no requirement that

the fact finder conclude that this analysis is accurate concerning the level of

alcohol in the suspect’s blood, as the primary DWI element of .08 requires.1

Rather, it is merely a background evidentiary fact that does not have to

prove something about the defendant’s conduct to the degree that an element

would, but that, for punishment purposes, is sufficient to become a

1
  The baseline alcohol concentration element of an ordinary DWI requires
the State to prove that, while operating a motor vehicle in a public place, the
defendant “ha[s] an alcohol concentration of 0.08 or more.” See Tex. Penal
Code § 49.01(2)(B).
                                      19
punishment consideration – based, of course, on the inference that the test is

accurate.

      The legislature clearly knew how to define an element of this nature –

it did so for the .08 method of showing intoxication. Yet, in the case of the

present enhancement, it broke away from this elemental definition and

focused instead only on the fact of the blood analysis itself, and not directly

on the defendant’s conduct or condition. For this reason, the State believes

that Subsection (d) is more properly a punishment consideration, and that

Navarro was wrongly decided.

                         II. Other Considerations.

      Other considerations as well suggest that the legislature intended

Subsection (d) as a punishment enhancement rather than a separate DWI

offense.

      Statutes are not interpreted in isolation, but are examined in the

context of the entire statutory scheme. Yazdchi v. State, 428 S.W.3d 831,

841 (Tex. Crim. App. 2014).

      The Subsection (d) enhancement is found in an enumeration of

punishment subsections, each incrementally increasing the punishment level

for a DWI. Moreover, the next lower enhancement is clearly a punishment

enhancer rather than an element, as it does not raise the class of


                                      20
misdemeanor, nor the maximum punishment, but instead increases only the

minimum jail time to six days. Accordingly, the placement of Subsection

(d) in the statute is some additional indication that it was also intended as a

punishment issue.

      In addition, within the broader context of Chapter 49, Intoxication and

Alcoholic Beverage Offenses, the legislature clearly knew how to create

separate DWI-based offenses, and did so in separate sections of that chapter

for a number of other factual scenarios involving a child passenger, Tex.

Penal Code §49.045, a resulting assault, Tex. Penal Code § 49.07, and a

resulting death. Tex. Penal Code § 49.08. The fact that, instead of giving

the 0.15 enhancement its own section, the legislature chose to include it

within the general DWI statute, within a list of other punishment

enhancements, is a strong indication that the legislature intended it as a

punishment enhancement rather than an element of a separate DWI offense.

      The Legislature clearly has the power to define even a degree-

changing fact concerning the offense as a punishment issue, rather than a

guilt-stage element of that offense. Sudden passion, for instance, is defined

as a punishment issue in the context of a murder case, in spite of the fact that

it changes the degree of the offense. See Tex. Penal Code § 19.02 (d).

Likewise, the fact that the defendant released the victim in a safe place is an


                                       21
issue reserved for the punishment stage of trial, in spite of the fact that it

changes the degree of an aggravated kidnapping. See Tex. Penal Code

§20.04 (c & d).

                     III. Constitutional Requirements.

      Nor is there any constitutional obstacle to making the additional fact

of a 0.15 concentration a punishment issue.

      The State acknowledges that one extra-textual factor that courts look

to in construing an ambiguous statute is the desirability to avoid a potential

constitutional violation. Ex parte White, 400 S.W.3d 92, 94 (Tex. Crim.

App. 2013); Sisk v. State, 131 S.W.3d 492, 497 (Tex. Crim. App. 2004).

      The Supreme Court has stated as follows concerning the constitutional

requirement for a jury finding on all elements of the offense:

      Other than the fact of a prior conviction, any fact that increases the
      penalty for a crime beyond the prescribed statutory maximum must be
      submitted to a jury, and proved beyond a reasonable doubt. With that
      exception, we endorse the statement of the rule set forth in the
      concurring opinions in that case: [I]t is unconstitutional for a
      legislature to remove from the jury the assessment of facts that
      increase the prescribed range of penalties to which a criminal
      defendant is exposed. It is equally clear that such facts must be
      established by proof beyond a reasonable doubt.

Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348 (2000)

(citations omitted); see also Ex parte Boyd, 58 S.W.3d 134, 136 (Tex. Crim.

App. 2001) (quoting Apprendi).


                                      22
      However, unlike the federal scheme and those in other states under

which the trial judge alone makes the sentencing determination, the Texas

sentencing scheme allows the defendant to elect to have the jury assess

punishment, under such instructions as may be necessary. See Tex. Code

Crim. Proc. art. 37.07, §§ 2(b) & 3(b).        Accordingly, even if factual

determinations like the present one do increase the maximum punishment,

they are consistent with Apprendi as long as the defendant retains the right to

insist on a jury finding thereon beyond a reasonable doubt.

      Castellanos’ fourth issue on appeal should be overruled.

                                  PRAYER

      For the foregoing reasons, the State respectfully requests that the

judgment of the trial court be affirmed.


                                Respectfully submitted,
                                /s/Douglas K. Norman
                                ___________________
                                Douglas K. Norman
                                State Bar No. 15078900
                                Assistant District Attorney
                                105th Judicial District of Texas
                                901 Leopard, Room 206
                                Corpus Christi, Texas 78401
                                (361) 888-0410
                                (361) 888-0399 (fax)
                                douglas.norman@co.nueces.tx.us



                                      23
                      RULE 9.4 (i) CERTIFICATION

        In compliance with Texas Rule of Appellate Procedure 9.4(i)(3), I

certify that the number of words in this brief, excluding those matters listed

in Rule 9.4(i)(1), is 4,799.

                                  /s/Douglas K. Norman
                                  ___________________
                                  Douglas K. Norman



                       CERTIFICATE OF SERVICE

        This is to certify that a copy of this brief was e-mailed on July 31,

2015,     to   Appellant’s     attorney,        Mr.   Donald   B.   Edwards,   at

mxlplk@swbell.net.



                                  /s/Douglas K. Norman
                                  ___________________
                                  Douglas K. Norman




                                           24
