          PD-1118&1119-15                                              PD-1118&1119-15
                                                            COURT OF CRIMINAL APPEALS
                                                                             AUSTIN, TEXAS
                                                            Transmitted 8/26/2015 4:35:09 PM
                                                             Accepted 8/28/2015 11:15:54 AM
                                                                              ABEL ACOSTA
                        TO THE                                                        CLERK
 TEXAS COURT OF CRIMINAL APPEALS OF THE STATE OF TEXAS
                      *    *   *

PAUL ANTHONY GARCIA,              §
    APPELLANT                     §
V.                                §   Cause Number 04-14-00389-CR
THE STATE OF TEXAS,               §   Cause Number 04-14-00390-CR
    APPELLEE                      §

                       *    *    *
           PETITION FOR DISCRETIONARY REVIEW
                   THE STATE OF TEXAS
                       *    *    *

                            Appeal from
       Decision Rendered in the 216th Judicial District Court of
                       Kendall County, Texas
               Trial Court Cause Number 5397 & 5398
         Court of Appeals Number 04-14-00389 & 390-CR

                            *     *      *

                                      E. BRUCE CURRY
                                      State Bar Card Number 05268500
                                      District Attorney
                                      By Steven A. Wadsworth
                                      State Bar Card Number 00788596
      August 28, 2015                 Assistant District Attorney
                                      200 Earl Garrett Street, Suite 202
                                      Kerrville, Texas 78028
                                      830.896.4744 (telephone)
                                      830.869.2620 (facsimile)
                                      steve216@bizstx.rr.com

              ORAL ARGUMENT NOT REQUESTED
                 IDENTITY OF JUDGE, PARTIES AND COUNSEL

C       The parties in this case are The State of Texas, who is the Appellant / Petitioner,
        and Paul Anthony Garcia is the Defendant / Appellee.

C       The trial court judge was the Honorable N. Keith Williams.

C       Counsel for the State at trial and on appeal is Steven A. Wadsworth, 200 Earl
        Garrett Street, Suite 202, Kerrville, Texas 78028.

C       Trial Counsel for Appellee was Paul J. Goeke, 115 East Travis, Suite 1145, San
        Antonio, Texas 78205.

C       Appellate Counsel for Appellee is M. Patrick Maguire, 945 Barnett Street,
        Kerrville, Texas 78028.




State’s Petition for Discretionary Review,
Paul Anthony Garcia v. State,
Cause Number 04-14-00389 and 390-CR, In the Court of Appeals
For the Fourth Supreme Judicial District of Texas                              Page Number i
                                   TABLE OF CONTENTS
                                                                                        PAGE

INDEX OF AUTHORITIES                                                                    iv

STATEMENT REGARDING ORAL ARGUMENT                                                       1

STATEMENT OF THE CASE                                                                   1-2

STATEMENT OF PROCEDURAL HISTORY                                                         3

GROUNDS FOR REVIEW:                                                     3-4
    Number One:
    Is a warrantless, but mandatory, blood-draw conducted in accordance
    with the requirements of the Texas Transportation Code
    §724.012(b)(1)(A) & ( C) reasonable under the U.S. CONST., amend.
    IV?

        Number Two:
        Did the court of appeals err in holding that Texas Transportation Code
        §724.012(b)(1)(A) & ( C) did not dispense with a warrant requirement?

        Number Three:
        Does the federal or state (Tex. Code Crim. Proc., ann. §38.23)
        exclusionary rules mandate suppression of the warrantless blood-draw
        evidence when at the time that the blood-draw occurred, it was mandated
        by the provision of Texas Transportation Code §724.012(b)(1)(A) & ( C)
        and was approved by applicable case law?

        Number Four:
        Was the warrantless blood-draw conducted in accordance with the
        requirements of the §Texas Transportation Code 724.012(b)(1)(A) & ( C)
        justified on the basis of exigency and did the lower court err in failing to
        consider exigency as a basis to uphold the trial court’s ruling?


State’s Petition for Discretionary Review,
Paul Anthony Garcia v. State,
Cause Number 04-14-00389 and 390-CR, In the Court of Appeals
For the Fourth Supreme Judicial District of Texas                      Page Number ii
ARGUMENT                                                             4-11

PRAYER                                                               12

CERTIFICATE OF SERVICE                                               12

CERTIFICATE OF WORD COUNT                                            12

APPENDIX
    1.   Opinion of Court of Appeals




State’s Petition for Discretionary Review,
Paul Anthony Garcia v. State,
Cause Number 04-14-00389 and 390-CR, In the Court of Appeals
For the Fourth Supreme Judicial District of Texas              Page Number iii
                                 INDEX OF AUTHORITIES

                                                                                PAGE
Federal Statute
U.S. Const. IV amendment                                                        3, 8

Federal Case
Illinois v. Krull, 480 U.S. 340, 107 S.Ct. 1160, 94 L.Ed.2d 364 (1987)          10
Maryland v. King, ___U.S.___, 133 S.Ct. 1958, 1969-1970,
       186 L.E.d2 1 (2013)                                                      8
Missouri v. McNeely, ––– U.S. ––––, 133 S.Ct. 1552,
       185 L.Ed.2d 696 (2013)                                                   10

State Cases
Beeman v. State, 86 S.W.3d 813 (Tex. Crim. App. 2002)                     10
Ex Parte Ruthhart, 980 S.W.2d 469 (Tex. Crim. App. 1998)                  9
Garcia v. State, 04-14-00389 & 390-C, 25 Tex. App. Lexis 7797
       (Tex. App.—San Antonio July 29, 2015, mem. op., do not publish)    2-3, 9
Hailey v. State, 87 S.W.3d 118 (Tex. Crim. App. 2002)                     10
In re Cole, PD-0077-15, 2015 Tex. Crim. App. 508
       (Tex. Crim. App. - pet. granted April 22, 2015)                    8-9
Weems v. State, 434 S.W.3d 655 (Tex. App.-San Antonio 2014, pet. granted) 8

Texas Statutes
Tex. Code Crim. Proc., ann. §38.23 (Lexis 2015)                                 3, 9
Texas Gov’t. Code §311.016 (Lexis 2015)                                         9
Texas Transportation Code §724.012 (Westlaw 2014)                        3, 7-11




State’s Petition for Discretionary Review,
Paul Anthony Garcia v. State,
Cause Number 04-14-00389 and 390-CR, In the Court of Appeals
For the Fourth Supreme Judicial District of Texas                         Page Number iv
                           TO THE
    TEXAS COURT OF CRIMINAL APPEALS OF THE STATE OF TEXAS
                         *    *   *

PAUL ANTHONY GARCIA,                               §
    APPELLANT                                      §
V.                                                 §    Cause Number 04-14-00389-CR
THE STATE OF TEXAS,                                §    Cause Number 04-14-00390-CR
    APPELLEE                                       §

                                *   *    *
                   PETITION FOR DISCRETIONARY REVIEW,
                           THE STATE OF TEXAS

TO THE HONORABLE JUDGES OF SAID COURT:

                 STATEMENT REGARDING ORAL ARGUMENT

        The State does not request oral argument.

                               STATEMENT OF THE CASE

        Appellee, Paul Anthony Garcia (hereinafter referred to as Appellee), was

indicted on or about November 5, 2012 for the offense of injury to a child, alleged to

have been committed on or about September 1, 2012 in Kendall County, Texas. CR,

V. 1, p. 6.1 Appelle was also indicted on or about November 5, 2012 for the offense


1
        As used herein, the abbreviation CR will refer to the Clerk’s Record, and the abbreviation RR
will refer to the reporter’s record. With respect to references to the reporter’s record, a volume
reference and a page reference, which will be abbreviated as a p or pp, as appropriate, will be
followed immediately by a line reference, which will be abbreviated by an l followed by the reference
                                                                                        (continued...)

State’s Petition for Discretionary Review,
Paul Anthony Garcia v. State,
Cause Number 04-14-00389 and 390-CR, In the Court of Appeals
For the Fourth Supreme Judicial District of Texas                                       Page Number 1
of intoxication manslaughter with a deadly weapon, alleged to have been committed on

or about September 1, 2012 in Kendall County, Texas. CR, V. 1, p. 6.2 The Appellee

filed a pre-trial motion to suppress with respect to the blood-draw taken by a Texas

Department of Public Safety (hereinafter referred as DPS) Trooper. CR, Vol. 1, pp.

39-42 & 61-70 & 80-83 (record in 5397) and CR, Vol. 1, pp. 36-39 & 58-67 & 80-83.

(record in 5398). Following a pretrial hearing on May 9, 2013, RR, Vol. 2, p. 2, the

court denied Appellee’s motion to suppress the blood-draw evidence. CR, Vol. 1, pp.

85-86. A jury trial was held and the Appellee was convicted of injury to a child. CR,

Vol. 1, pp. 148-155; and RR, Vol. 5, p. 59, l. 7-10 and p. 59, l. 24-25 to p. 60, l. 1-6.

        The Fourth Court of Appeals reversed the trial court’s ruling on the pre-trial

motion to suppress evidence of the blood-draw, found the admission of the blood-draw

evidence at trial was erroneous and harmful error,3 reversed the conviction and

remanded the case for a new trial. Garcia v. State, 04-14-00389 & 390-C, 25 Tex.

App. Lexis 7797 (Tex. App.—San Antonio July 29, 2015, mem. op., do not publish).


1
        (...continued)
to the particular lines by number.
2
        This citation is the to the appellate record the trial in cause 5398.
3
         The blood-draw test results were admitted with the Appellee renewing all of his previous
objections, but without the trial court actually ruling on those objections at trial. RR, Vol. 4, p. 181,
l. 4-20.

State’s Petition for Discretionary Review,
Paul Anthony Garcia v. State,
Cause Number 04-14-00389 and 390-CR, In the Court of Appeals
For the Fourth Supreme Judicial District of Texas                                         Page Number 2
                    STATEMENT OF PROCEDURAL HISTORY

        The Fourth Court of Appeals reversed the trial court’s ruling on the pre-trial

motion to suppress evidence of the blood-draw, found the admission of the blood-draw

evidence at trial was erroneous and harmful error, reversed the conviction and

remanded the case for a new trial. Garcia v. State, 04-14-00389 & 390-CR, 25 Tex.

App. Lexis 7797 (Tex. App.—San Antonio July 29, 2015, mem. op., do not publish).

A motion for rehearing was not filed.

                                  GROUNDS FOR REVIEW

Number One:
Is a warrantless, but mandatory, blood-draw conducted in accordance with the
requirements of the Texas Transportation Code §724.012(b)(1)(A) & ( C) reasonable
under the U.S. CONST., amend. IV?

Number Two:
Did the court of appeals err in holding that Texas Transportation Code
§724.012(b)(1)(A) & ( C) did not dispense with a warrant requirement?

Number Three:
Does the federal or state (Tex. Code Crim. Proc., ann. §38.23) exclusionary rules
mandate suppression of the warrantless blood-draw evidence when at the time that the
blood-draw occurred, it was mandated by the provision of Texas Transportation Code
§724.012(b)(1)(A) & ( C) and was approved by applicable case law?

Number Four:
Was the warrantless blood-draw conducted in accordance with the requirements of the
§Texas Transportation Code 724.012(b)(1)(A) & ( C) justified on the basis of exigency
and did the lower court err in failing to consider exigency as a basis to uphold the trial

State’s Petition for Discretionary Review,
Paul Anthony Garcia v. State,
Cause Number 04-14-00389 and 390-CR, In the Court of Appeals
For the Fourth Supreme Judicial District of Texas                            Page Number 3
court’s ruling?

                                  STATEMENT OF FACTS

        The State incorporates by reference all facts contained in its Statement of Facts

of the State’s Reply Brief. For purposes of this petition, the more relevant facts are that

in late evening of September 1, 2012, Ricardo Carrillo (hereinafter referred to as

Carrillo) testified that he was riding motorcycles with his friends on State Highway 46

outside of Boerne the evening of September 1, 2012 when he started to see debris in

the road and dust settling from an obvious car accident. RR, Vol. 3, p. 1-23. Carillo

stopped to help, and saw that one female, who later would be identified as Destiny Ann

Bruce (hereinafter referred to as Destiny), was still in the van in the driver’s seat and

gasping for breath. RR, Vol. 3, p. 9-22. Carrillo assisted in removing the female

passenger of the van, who would later be identified as Grace Ann Bruce (hereinafter

identified as Grace) through a window. RR, Vol. 3, p. 272, l. 3-8.

        Boerne Police Officer Lance DeLeon (hereafter referred to as Officer DeLeon)

arrived on the accident scene at 11:55 p.m. RR, Vol. 3, p. 289, l. 4-10, and p. 290, l.

20-22. At the accident, Officer DeLeon saw a brown Chevy truck in the westbound

lane of Highway 46 with a Hispanic male driver in it. RR, Vol. 3, p. 291, l. 1-4.

Officer DeLeon identified that person as the Appellee, and he was alone in the truck

State’s Petition for Discretionary Review,
Paul Anthony Garcia v. State,
Cause Number 04-14-00389 and 390-CR, In the Court of Appeals
For the Fourth Supreme Judicial District of Texas                             Page Number 4
and behind the driver’s wheel in the driver’s seat. RR, Vol. 3, p. 293, l. 1-7. The

Appellee was pinned in the truck and had to be extracted by emergency personnel from

the truck. RR, Vol. 3, p. 297, l. 1-5 & 12-15; and RR, Vol. 4, p. 93, l. 1-19. Officer

DeLeon also saw a white 4-door car a little further away and on its side. RR, Vol. 3,

p. 292, l. 11-15. When Officer DeLeon looked into the car, he saw Destiny still

strapped into the driver’s seat and deceased. RR, Vol. 3, p. 294, l. 9 to p. 295, l. 1.

Other emergency personnel arrived at the accident within a few minutes of Officer

DeLeon, and Grace was taken by air ambulance from the scene to the hospital. RR,

Vol. 3, p. 295, l. 12-24.

        DPS Trooper Ross Rigby (hereinafter referred to as Trooper Rigby) assisted in

the accident investigation. RR, Vol. 4, p. 96, l. 13-16. Trooper Rigby searched the

Appellee’s truck that night and located a marijuana bong and a pipe, and bottle of Jack

Daniel’s green label whiskey. RR, Vol. 4, p. 97, l. 18-21. When found in the

Appellee’s truck that evening, the bottle of whiskey, which was a one liter bottle, was

over half-empty, but unbroken or cracked, i.e. none would have leaked out in the

wreck. RR, Vol. 4, p. 39, l. 10-25; and, Exhibit 27.

        DPS Trooper Eric Kendrick (hereinafter referred to as Trooper Kendrick)

arrived at the accident just a few moments after Officer Deleon. RR, Vol. 4, p. 15, l.

State’s Petition for Discretionary Review,
Paul Anthony Garcia v. State,
Cause Number 04-14-00389 and 390-CR, In the Court of Appeals
For the Fourth Supreme Judicial District of Texas                           Page Number 5
1-18. When Trooper Kendrick arrived at the accident scene, he saw the two vehicles

involved in the crash with the white vehicle driven by Destiny on it’s side in the

northbound lane of Highway 46, and the truck driven by the Appellee just off to the

north side of the same highway. RR, Vol. 4, p. 16, l. 2-9, and p. 41, l. 24 to p. 42, l.

8. Once at the scene, Trooper Kendrick was told by Officer DeLeon that Destiny was

dead inside of her car. RR, Vol. 4, p. 42, l. 3-7. Trooper Kendrick went over to

Destiny’s vehicle to confirm her condition, and then saw Grace on the ground near the

vehicle. RR, Vol. 4, p. 43, l. 23 to p. 44, l. 2. Grace appeared to have a head injury

or something wrong with her eyes at that time and was airlifted from the accident scene

to the hospital. RR, Vol. 4, p. 45, l. 1-15.

        After checking on Grace, Trooper Kendrick went to the Appellee’s truck. RR,

Vol. 4, p. 45, l. 18-22. The Appellee was still behind the wheel of this truck when

Trooper Kendrick came to him. RR, Vol. 4, p. 45, l. 20-22. Since the doors of the

Appellee’s truck were jammed shut, Trooper Kendrick talked to the Appellee through

the passenger side window of Appellee’s truck. RR, Vol. 4, p. 46, l. 1-5, and l. 7-14.

At this time, the Appellee had no visible injuries, but he did appear to be in pain or

discomfort to Trooper Kendrick. RR, Vol. 4, p. 46, l. 5-6. Trooper Kendrick testified

both at the suppression hearing and trial that the Appellee did have a broken leg or foot,

State’s Petition for Discretionary Review,
Paul Anthony Garcia v. State,
Cause Number 04-14-00389 and 390-CR, In the Court of Appeals
For the Fourth Supreme Judicial District of Texas                             Page Number 6
and had to be cut out of his truck that evening. RR, Vol. 2, p. 14, l. 6-9; and RR, Vol.

4, p. 36, l. 22-25.

        When Trooper Kendrick talked to the Appellee that evening, the recording of

which was admitted into evidence as Exhibit 4, Trooper Kendrick thought that based

upon the answers given by the Appellee that the Appellee, “[A]ppeared disoriented,

confused, not in a normal state of mind.” RR, Vol. 4, p. 56, l. 25 to p. 47, l. 2; and, p.

85, l. 19-20. Kendrick saw that the Appellee had really red or bloodshot eyes. RR,

Vol. 4, p. 82, l. 8-14 & p. 83, l. 8-19.

        Once the Appellee arrived at the hospital that evening, DPS Trooper Rodney

Zarate (hereinafter referred to as Trooper Zarate) went to the hospital to met the

Appellee to continue the investigation. RR, Vol. 4, p. 52, l. 16-22; and, p. 127, l. 5-19.

Trooper Zarate then read the DIC-24 form to the Appellee. RR, Vol. 4, p. 131, l. 23

to p. 132, l. 7; and, Exhibit 8.4 The nurse, Amy Smith, then drew blood from the

Appellee. RR, Vol. 4, p. 135, l. 1 to p. 137, l. 22; and Exhibit 9 & 10. 5 The blood


4
        In accordance with the stipulation (RR, Vol. 4, p. 243, l. 11-19), the State is not arguing that
the Appellee consented to the blood draw. The precise stipulation is, “But just to make it clear, yes,
in both cases the State is waiving any appellate argument that there was consent to the blood draw
in both of these cases. Yes, the State is waiving. And in exchange Mr. Goeke is giving up any request
with respect to voluntariness or consent in the charge.” RR, Vol. 4, p. 243, l. 11-19.
5
        Exhibit 10 is the DPS form THP-51 used in conjunction with blood-draws pursuant to Texas
                                                                                   (continued...)

State’s Petition for Discretionary Review,
Paul Anthony Garcia v. State,
Cause Number 04-14-00389 and 390-CR, In the Court of Appeals
For the Fourth Supreme Judicial District of Texas                                         Page Number 7
sample was then tested. RR, Vol. 4, p. 181, l. 1-25, & Exhibit 11.

                                           ARGUMENT
Point of Error Number One:
Is a warrantless, but mandatory, blood-draw conducted in accordance with the
requirements of the Texas Transportation Code §724.012(b)(1)(A) & ( C) reasonable
under the U.S. CONST., amend. IV?

        The pretrial evidentiary hearing on the Appellee’s Motion to Suppress was

limited, in relevant aspect, to the constitutionality of the Texas Transportation Code

§724.012 (Westlaw 2014), RR, Vol. 2, p. 7, l. 6-17 & 24.             The accident and

subsequent blood draw at issue in this case took place on September 1-2, 2012. CR,

p. 6, and Exhibit 11. Under the circumstances, the warrantless blood-draw was

reasonable for constitutional purposes. The court should grant review because this is

the same issue pending in In re Cole, PD-0077-15, 2015 Tex. Crim. App. 508 (Tex.

Crim. App. - pet. granted April 22, 2015), and this important question of state and

federal law that should be settled by this court, and the lower court appears to

misconstrued applicable law.

        In addition, as set forth in the State’s Brief in Weems v. State, 434 S.W.3d 655

(Tex. App.-San Antonio 2014, pet. granted PD-0635-14 (Tex. Crim. App. - pet.



5
      (...continued)
Transportation Code §724.012(b)(1)(A) & ( C).

State’s Petition for Discretionary Review,
Paul Anthony Garcia v. State,
Cause Number 04-14-00389 and 390-CR, In the Court of Appeals
For the Fourth Supreme Judicial District of Texas                           Page Number 8
granted August 20, 2014)), a balancing test approach to the Fourth Amendment is

preferable in situation involving searches authorized and mandated by statute. See,

Maryland v. King, ___U.S.___, 133 S.Ct. 1958, 1969-1970 186 L.E.d2 1 (2013).

Number Two:
Did the court of appeals err in holding that Texas Transportation Code
§724.012(b)(1)(A) & ( C) did not dispense with a warrant requirement?

         The court of appeals based a great deal of its opinion on the argument that Texas

Transportation Code §724.012(b)(1)(A) & ( C) did not dispense with a warrant

requirement. Garcia v. State, 04-14-00389-CR and 390-CR, 2015Tex. App. LEXIS

7797, *6 (Tex. App.- San Antonio July 29, 2015). This position is in error.

         Since the language of the statute at issue use shall, courts have consistently held

that this language imposes a duty. Texas Gov’t. Code §311.016(2). Courts have

interpreted this language as creating a duty or a mandate. See, Ex Parte Ruthhart, 980

S.W.2d 469, 472 (Tex. Crim. App. 1998). The court should grant review because this

issue is also pending in Weems v. State, PD-0635-14 (Tex. Crim. App. - pet. granted

August 20, 2014). This important question of state law that should be settled by this

court.

Number Three:
Does the federal or state (Tex. Code Crim. Proc., ann. §38.23) exclusionary rules
mandate suppression of the warrantless blood-draw evidence when at the time that the

State’s Petition for Discretionary Review,
Paul Anthony Garcia v. State,
Cause Number 04-14-00389 and 390-CR, In the Court of Appeals
For the Fourth Supreme Judicial District of Texas                               Page Number 9
blood-draw occurred, it was mandated by the provision of Texas Transportation Code
§724.012(b)(1)(A) & ( C) and was approved by applicable case law?

        The court should grant review because this is the same issue pending in In re

Cole, PD-0077-15, 2015 Tex. Crim. App. 508 (Tex. Crim. App. - pet. granted April

22, 2015), and this important question of state and federal law that should be settled

by this court, and the lower court appears to misconstrued applicable law.

        The primary focus of the federal exclusionary rule has to deter unlawful conduct

by law enforcement. See, Illinois v. Krull, 480 U.S. 340, 347, 107 S. Ct. 1160, 94 L.

Ed. 2d 364 (1987). At the time of the blood-draw in this case, the statutory scheme had

been upheld and interpreted to dispense with a search warrant. Beeman v. State, 86

S.W.3d 813, 816 (Tex. Crim. App. 2002). Thus, neither the federal nor the state

exclusionary rule would be advanced by excluding the blood-draw evidence, and the

court should grant review to examine this important issue of state and federal law.

Number Four:
Was the warrantless blood-draw conducted in accordance with the requirements of the
§Texas Transportation Code 724.012(b)(1)(A) & ( C) justified on the basis of exigency
and did the lower court err in failing to consider exigency as a basis to uphold the trial
court’s ruling?

        Exigency was not procedurally defaulted since the State was the prevailing party.

See, Hailey v. State, 87 S.W.3d 118, 121-122 (Tex. Crim. App. 2002). Given the


State’s Petition for Discretionary Review,
Paul Anthony Garcia v. State,
Cause Number 04-14-00389 and 390-CR, In the Court of Appeals
For the Fourth Supreme Judicial District of Texas                            Page Number 10
factors of a fatal accident involving alcohol with two parties transported to the hospital

via helicopter, and the natural dissipation of alcohol, exigency was a factor or grounds

that should have been considered the court of appeals in its review of the decision of

the trial court. See generally, Missouri v. McNeely, 133 S.Ct. 1552, 185 L.Ed.2d 696

(2013). The court should grant review to consider whether to reverse the decision o

the court of appeals or to remand and require consideration of exigency.

                                              PRAYER

        WHEREFORE, PREMISES CONSIDERED, the State of Texas, respectfully

prays that the court grant review and reverse the decision of the court of appeals, or

alternatively grant review and reverse because the warrantless blood-draw was a

reasonable search, or alternatively grant review and reverse because Texas

Transportation Code §724.012(b)(1)(A) & ( C) did dispense with a warrant

requirement, or alternatively grant review and reverse because neither the federal nor

state exclusionary rules require suppression of the blood-draw evidence, or

alternatively grant review and reverse because exigent circumstances to justify the

blood-draw or remand to the court appeals to consider whether exigent circumstances

existed, and grant the State all other relief to which it may be justly entitled.




State’s Petition for Discretionary Review,
Paul Anthony Garcia v. State,
Cause Number 04-14-00389 and 390-CR, In the Court of Appeals
For the Fourth Supreme Judicial District of Texas                            Page Number 11
Respectfully submitted,
E. Bruce Curry,
District Attorney for the 216 th Judicial District
/s/ Steven A. Wadsworth
_________________________________________
By Steven A. Wadsworth
Texas State Bar Card Number 00788596
Assistant District Attorney
216th Judicial District of Texas
200 Earl Garrett Street, Suite 202
Kerrville, Texas 78028
830.896.4744 (telephone)
830.896.2620 (facsimile)
steve216@bizstx.rr.com

                            CERTIFICATE OF SERVICE
       I hereby certify that a true and correct copy of the above and foregoing document
was served on the following parties by the method stated below each on August 26,
2015:
       Honorable M. Patrick Maguire
       Via email
/s/ Steven A. Wadsworth
________________________________
Steven A. Wadsworth,
Assistant District Attorney,
Attorney for the State of Texas

                      CERTIFICATE OF WORD LENGTH
      I hereby certify that the word count of the applicable portions of this document
is show by the word processing program to be 1,991.

/s/ Steven A. Wadsworth
_____________________________________
Steven A. Wadsworth,
Assistant District Attorney

State’s Petition for Discretionary Review,
Paul Anthony Garcia v. State,
Cause Number 04-14-00389 and 390-CR, In the Court of Appeals
For the Fourth Supreme Judicial District of Texas                          Page Number 12
APPENDIX
No Shepard's Signal™
As of: August 25, 2015 5:09 PM EDT


                                                   Garcia v. State
                                 Court of Appeals of Texas, Fourth District, San Antonio
                                       July 29, 2015, Delivered; July 29, 2015, Filed
                                         Nos. 04-14-00389-CR & 04-14-00390-CR

Reporter
2015 Tex. App. LEXIS 7797

Paul Anthony GARCIA, Appellant v. The STATE of Texas, toxicologist, and the definition of "intoxicated" in the jury charge.
Appellee
                                                      Outcome
Notice: PLEASE CONSULT THE TEXAS RULES OF
APPELLATE PROCEDURE FOR CITATION OF Reversed and remanded.
UNPUBLISHED OPINIONS.
                                                                        LexisNexis® Headnotes
Prior History: [*1] From the 216th Judicial District Court, Kendall
County, Texas. Trial Court Nos. 5397 & 5398. Honorable N. Keith          Criminal Law & Procedure > ... > Driving Under the Influence > Blood
Williams, Judge Presiding.                                               Alcohol & Field Sobriety Testing > Procedures

Disposition: REVERSED AND REMANDED.                                        HN1 Tex. Transp. Code Ann. § 724.012(b)(1)(A)-(C) ( 2011)
                                                                           provides that a peace officer shall require a blood or breath
                                                                           specimen if a driver is arrested for driving while intoxicated after
Core Terms                                                                 having been involved in an accident and as a result of the
                                                                           accident, another individual has died or will die, has suffered
blood, intoxicated, alcohol concentration, warrantless,
                                                                           serious bodily injury, or has suffered bodily injury and been
suppression motion, trial court's error, bodily injury, legal limit, trial
                                                                           transported to a hospital or other medical facility for treatment.
court, alcohol, grams, beyond a reasonable doubt, blood alcohol
content, good faith, Transportation, driver, scene                           Constitutional Law > ... > Fundamental Rights > Search & Seizure >
                                                                         Warrants
Case Summary                                                             Criminal Law & Procedure > ... > Driving Under the Influence > Blood
                                                                         Alcohol & Field Sobriety Testing > General Overview
Overview
                                                                     HN2 A blood draw pursuant to Tex. Transp. Code Ann. §
HOLDINGS: [1]-Where defendant was convicted of reckless 724.012(b) is not a valid exception to the Fourth Amendment's
bodily injury to a child and intoxication manslaughter, the trial warrant requirement.
court erred by denying his motion to suppress because the
warrantless blood draw could not be justified pursuant Tex. Criminal Law & Procedure > ... > Driving Under the Influence > Blood
Transp. Code Ann. § 724.012(b) (2011); [2]-The good faith Alcohol & Field Sobriety Testing > General Overview
exception to the exclusionary rule did not apply; [3]-A police
                                                                      Constitutional Law > ... > Fundamental Rights > Search & Seizure >
officer does not act in good faith when he fails to obtain a warrant
                                                                      Exclusionary Rule
based on Tex. Transp. Code Ann. § 724.012(b), which does not
dispense with the warrant requirement; [4]-The erroneous Constitutional Law > ... > Fundamental Rights > Search & Seizure >
admission of evidence from the blood draw was not harmless Warrants
under Tex. R. App. P. 44.2(a), given the State's references to Criminal Law & Procedure > ... > Exclusionary Rule > Exceptions to
defendant's blood alcohol content, the evidence from the Exclusionary Rule > Good Faith
HN3 Although the federal exclusionary rule usually precludes the          Barnard, Justice, Patricia O. Alvarez, Justice, Jason Pulliam,
use of evidence obtained in violation of the Fourth Amendment,            Justice.
if law enforcement personnel rely in good faith on a statute
authorizing a warrantless search, and the statute in question is          Opinion by: Marialyn Barnard
later found to be unconstitutional, the evidence seized need not be
excluded. However, Tex. Transp. Code Ann. § 724.012(b) - the              Opinion
mandatory blood draw statute - does not provide for a warrantless
search. Although § 724.012(b) states an officer shall take a blood        MEMORANDUM OPINION
draw if an individual suffered serious bodily injury as a result of the
DWI, it does not mandate that he do so without a warrant.                 A jury convicted appellant Paul Anthony Garcia of reckless bodily
Accordingly, a police officer does not act in good faith when he          injury to a child and intoxication manslaughter. As to both
fails to obtain a warrant based on § 724.012(b), which does not           offenses, the jury made affirmative findings that Garcia used a
dispense with the warrant requirement.                                    deadly weapon - a vehicle. Based on the jury's
                                                                          recommendations as to punishment, the trial court imposed a
 Criminal Law & Procedure > ... > Standards of Review > Harmless &        sentence of ten years' confinement, probated, for the reckless
 Invited Error > Evidence                                                 bodily injury to a child offense, and a sentence of fifteen years'
 Criminal Law & Procedure > ... > Standards of Review > Harmless &        confinement for the intoxication manslaughter offense. On
 Invited Error > Harmless Error                                           appeal, Garcia contends the trial court erred in: (1) denying his
                                                                          motion to suppress; (2) admitting certain medical records into
 Evidence > Admissibility > Procedural Matters > Rulings on Evidence
                                                                          evidence; and (3) denying his motion for mistrial based on the
HN4 Where the trial court's error is one of constitutional                State's alleged improper jury argument. We agree [*2] the trial
magnitude, the appellate court must reverse the judgment unless           court erred in denying Garcia's motion to suppress, and we
it determines beyond a reasonable doubt the trial court's error did       reverse and remand for a new trial.
not contribute to the conviction. Tex. R. App. P. 44.2(a). The harm
analysis for erroneous admission of evidence obtained in violation        Background
of Fourth Amendment is Rule 44.2(a)'s constitutional standard.
                                                                          The record shows that a head-on collision occurred in Kendall
Thus, the appellate court must reverse a conviction unless it
                                                                          County. Shortly thereafter, Boerne police officer Lance DeLeon
concludes beyond a reasonable doubt the trial court's error did not
                                                                          arrived at the scene of the accident. Two cars were involved in
contribute to his conviction. In doing so, the appellate court
                                                                          the accident, a brown pickup truck and white four-door car.
considers: (1) the nature of the error; (2) the extent it was
                                                                          Officer DeLeon testified a Hispanic male, later identified as
emphasized by the State; (3) the probable implications of the
                                                                          Garcia, was in the driver's seat of the pickup truck. According to
error; and (4) the weight the jury likely assigned to it during
                                                                          the officer, Garcia was conscious, but confused and incoherent.
deliberations. These factors are not exclusive and other factors
                                                                          After asking a bystander to keep an eye on Garcia, Officer
may be relevant to the analysis. An analysis for whether a
                                                                          DeLeon went to check on a child, subsequently identified as G.B.,
particular constitutional error is harmless should take into account
                                                                          lying in a ditch near the white car. According to one of the first
any and every circumstance apparent in the record that logically
                                                                          bystanders on the scene, Ricardo Carrillo, he and his friends had
informs an appellate determination, whether beyond a reasonable
                                                                          removed G.B. from the vehicle. The officer then approached the
doubt that particular error did not contribute to the conviction or
                                                                          white car, which was on its side. When Officer DeLeon looked into
punishment. Tex. R. App. P. 44.2(a).
                                                                          the car, he saw the driver, D.B., strapped into the driver's seat.
                                                                          The officer testified she was deceased.
Counsel: For APPELLANT: M. Patrick Maguire, M. Patrick
Maguire, P.C., Kerrville, TX.                          Thereafter, other emergency personnel arrived at the scene,
                                                       including Texas Department of Public Safety
For APPELLEE: Steven A. Wadsworth, Assistant District
Attorney, Kerrville, TX.

Judges: Opinion by: Marialyn Barnard, Justice. Sitting: Marialyn
Trooper Eric Kendrick. G.B. was airlifted to the [*3] hospital.                decision in Missouri v. McNeely, U.S. , 133 S.Ct. 1552, 1560-
Garcia, who was pinned in his truck, was removed and also                      63, 185 L. Ed. 2d 696 (2013) in which the Court held a
airlifted to the hospital. Trooper Kendrick stated he spoke to                 categorical or per se rule permitting warrantless blood draws
Garcia before he was taken to the hospital and Garcia appeared                 violates the Fourth Amendment. The trial court denied Garcia's
disoriented, lacking "normal use of his mental faculties." Trooper             motion to suppress and the case proceeded to trial. At trial, the
Kendrick testified that initially, he did not suspect Garcia was               results of the blood draw were admitted into evidence. Garcia was
intoxicated. The trooper stated he was questioning Garcia as part              ultimately convicted and thereafter perfected this appeal.
of the "crash investigation." Trooper Kendrick testified that during
the course of the investigation, he discovered evidence that led               Analysis
him to believe Garcia was intoxicated at the time of the accident,
including: (1) 911 calls advising of a wrong way driver in the area;           As set forth above, Garcia raises several issues challenging his
(2) the open container of liquor found in Garcia's vehicle; (3) the            conviction. However, because we find Garcia's first issue - the
marijuana pipe found in Garcia's vehicle; (4) Garcia's red,                    one challenging the trial court's denial of his motion to suppress -
bloodshot eyes; (5) Garcia's apparent loss of his normal faculties;            dispositive, we need not address any of the remaining issues.
and (6) Garcia's inability to answer questions at the scene.                   Accordingly, we proceed with our analysis of Garcia's first issue.

As a result of his investigation, Trooper Kendrick, who was still at           As noted in our recent decision in Huff v. State, this court has
the scene, contacted DPS San Antonio Communications and                        analyzed McNeely on several occasions and held HN2 section
asked that a trooper be sent to the hospital to perform a                      724.012(b) is not a valid exception to the Fourth Amendment's
mandatory blood draw on Garcia pursuant to section 724.012 of                  warrant [*6] requirement. No. 04-13-00891-CV, 2015 Tex. App.
the Texas Transportation Code.1 The blood draw was taken                       LEXIS 3401, 2015 WL 1731236, at *14 (Tex. App.-San Antonio
under the supervision of Trooper [*4] Rodney P. Zarate.                        Apr. 8, 2015, pet. filed) (citing Aviles v. State, 443 S.W.3d 291,
Admittedly, neither Trooper Kendrick, Trooper Zarate, nor any                  294 (Tex. App.-San Antonio 2014, pet. filed); McNeil v. State, 443
other law enforcement officer obtained a warrant prior to                      S.W.3d 295, 300 (Tex. App.-San Antonio 2014, pet. filed); Weems
mandating the blood draw. Trooper Kendrick admitted there was                  v. State, 434 S.W.3d 655, 665 (Tex. App.-San Antonio 2014, pet.
nothing that would have prevented him from obtaining a search                  granted)). The Texas Court of Criminal Appeals rendered a similar
warrant. Rather, at the time, a warrantless blood draw was part of             decision in Villarreal v. State, No. PD-0306-14, 2014 Tex. Crim.
DPS protocol.                                                                  App. LEXIS 1898, 2014 WL 6734178, at *9-*10 (Tex. Crim. App.
                                                                               Nov. 26, 2014, reh'g granted).
The result of the blood draw showed Garcia's blood alcohol level
to be 0.187 grams per hundred milliliters of whole blood. The legal Recognizing the precedent from the Court of Criminal appeals
limit in Texas is 0.08 grams per hundred milliliters of whole blood,and this court, the State apparently concedes the warrantless
so [*5] Garcia's sample was more than twice the legal limit.        blood draw cannot be justified pursuant to the provisions of section
Garcia was ultimately arrested and charged with reckless bodily     724.012(b) of the Texas Transportation Code. We agree.
injury to a child and intoxication manslaughter.                    However, the State argues that even if the blood draw was
                                                                    impermissible under section 724.012(b), the blood evidence was
Garcia filed a pretrial motion to suppress the results of the blood properly admitted under the good faith exception to the
draw. At the suppression hearing, Garcia argued, among other exclusionary rule. We recently addressed this issue in
things, that the warrantless blood draw was improper under the
Supreme Court's recent

1
  Based on the underlying facts, it appears Trooper Kendrick was relying upon section 724.012(b)(1)(A)-(C). SeeHN1 Tex. Transp.
Code Ann. § 724.012(b)(1)(A)-(C) (West 2011). This provision provides that a peace officer shall require a blood or breath specimen
if a driver is arrested for driving while intoxicated after having been involved in an accident and as a result of the accident, another
individual has died or will die, has suffered serious bodily injury, or has suffered bodily injury and been transported to a hospital or other
medical facility for treatment. Id. It is undisputed that D.B. died as a result of the accident and G.B. suffered injury and was transported
to a hospital for treatment.
Huff, a case involving a fatality accident just as in this case, and probable implications of the error; and (4) the weight the jury likely
held the good faith exception was inapplicable. 2015 Tex. App. assigned to it during deliberations. Snowden v. State, 353 S.W.3d
LEXIS 3401, 2015 WL 1731236, at *16.                                   815, 822 (Tex. Crim. App. 2011). These factors are not exclusive
                                                                       and other factors may be relevant to the analysis. Id. "At bottom,
As we recognized in Huff, HN3 although the federal exclusionary an analysis for whether a particular constitutional error is harmless
rule usually precludes the use of evidence obtained in violation of should take into account any and every circumstance apparent in
the Fourth Amendment, "if law enforcement personnel rely in good the record that logically informs an appellate determination
faith on a statute authorizing a warrantless search, and the statute whether 'beyond a reasonable doubt [that particular error] did not
in question is later found to be unconstitutional, the evidence contribute to the conviction or punishment.'" Id.(quoting Tex. R.
seized need not be excluded." Id. (citing Illinois v. Krull, 480 U.S. App. P. 44.2(a)).
340, 347, 107 S. Ct. 1160, 94 L. Ed. 2d 364 (1987)). However, we
observed that section 724.012(b) - the mandatory blood draw In Weems v. State, we held the trial court's error in denying
statute - does not provide for a warrantless search. Id. (citing Tex. Weems's motion to suppress was harmful where the jury was
Transp. Code [*7] Ann. § 724.012(b)). "Although the statute instructed regarding the definition of intoxication, [*9] which
states an officer shall take a blood draw if an individual suffered included "having an alcohol concentration of 0.08 or more," and
serious bodily injury as a result of the DWI, it does not mandate there was testimony from a toxicologist that at the time of the
that he do so without a warrant." Id. Accordingly, in Huff, we held blood draw Weems's blood alcohol concentration was 0.18,
we could not say the police officer acted in good faith when he making it likely that his blood alcohol concentration was 0.24 at
failed to obtain a warrant based on section 724.012(b), which does the time of the accident. 434 S.W.3d at 667.
not dispense with the warrant requirement. Id.(citing Tex. Transp.
Code Ann. § 724.012(b)(1)(B); McNeil, 443 S.W.3d at 303).              Thereafter, in Huff, we also held the trial court's erroneous
                                                                       decision denying a motion to suppress was harmful where the
The same is true in this case. Trooper Kendrick admittedly relied State, during voir dire, referenced the Texas blood alcohol limit of
upon section 724.012(b)(1)(A)-(C)when he requested that another 0.08 grams per deciliter, a toxicologist testified Huff's blood
trooper mandate a blood draw from Garcia without first obtaining sample showed a blood alcohol concentration of 0.17 grams per
a warrant. Just as the officer in Huff could not in good faith rely on deciliter - more than twice the legal limit, the toxicology report was
Transportation Code when he obtained the blood draw from Huff admitted into evidence, the State referenced Huff's blood alcohol
in the absence of a warrant, Trooper Kendrick could not rely upon content during closing argument - noting it was two times the legal
it when he mandated a warrantless blood draw from Garcia. See limit, and the jury was instructed about the definition of
id. Accordingly, we hold the good faith exception is inapplicable. "intoxicated," which included "having an alcohol concentration of
                                                                       .08 or more." 2015 Tex. App. LEXIS 3401, 2015 WL 1731236, at
The State further contends that even if the trial court erred in *17-*18.
denying the motion to suppress and admitting the results of the
blood test, Garcia was not harmed. HN4 Because the trial court's Here, as in Huff, the prosecutor referenced the Texas blood
error is one of constitutional magnitude, we must reverse the alcohol limit of 0.08, stating that if a person has a blood alcohol
judgment unless we determine [*8] beyond a reasonable doubt concentration of 0.08 or more, he is intoxicated. See 2015 Tex.
the trial court's error did not contribute to the conviction. Tex. R. App. LEXIS 3401, [WL] at *17. The prosecutor also discussed
App. P. 44.2(a); see Hernandez v. State, 60 S.W.3d 106, 108 with the venire "alcohol concentration," [*10] with regard to
(Tex. Crim. App. 2001) (holding harm analysis for erroneous breath, blood, and urine. After jury selection, during his opening
admission of evidence obtained in violation of Fourth Amendment statement, the prosecutor again referenced the 0.08 limit,
is Rule 44.2(a)'s constitutional standard). Thus, we must reverse advising the jury it was one way for the State to prove
Garcia's conviction unless we conclude beyond a reasonable intoxication. The State called James Burris, a forensic
doubt the trial court's error did not contribute to his                toxicologist, as a witness. Mr. Burris described in detail the
conviction, and in doing so, we consider: (1) the nature of the procedure used for blood alcohol analysis
error; (2) the extent it was emphasized by the State; (3) the
and specifically stated the standard against which a sample is
tested is 0.08. As to Garcia, Mr. Burris testified his testing showed
Garcia's blood alcohol content was 0.187 grams per hundred
milliliters of whole blood, and therefore, Garcia's blood alcohol
content was more than twice the legal limit of 0.08 grams per
hundred milliliters of whole blood. The State also introduced, and
the trial court admitted into evidence over objection, State's Exhibit
11, a copy of Mr. Burris's report, showing the test results of
Garcia's alcohol level - 0.0187. And, just as in Huff, the prosecutor
noted Garcia's blood alcohol content during closing argument,
asking the jurors to "[k]eep in mind that the definition of
intoxication includes . . . the .08 - and you heard that [Garcia's]
blood alcohol level was .187, more than two times the legal limit."
[*11] See id. Finally, the jury was instructed as to the definition of
"intoxicated," just as they were in Huff, which included "having an
alcohol concentration of 0.08 or more." See id.

Based on our prior decisions in Weems and Huff, as well as the
State's references to Garcia's blood alcohol content, the evidence
from the toxicologist presented by the State, as well as the
definition of "intoxicated" in the charge, we cannot say beyond a
reasonable doubt that the trial court's error in denying Garcia's
motion to
suppress did not contribute to his conviction. SeeTex. R. App. P.
44.2(a); Huff, 2015 Tex. App. LEXIS 3401, 2015 WL 1731236, at
*17-*18; Weems, 434 S.W.3d at 667. We therefore sustain
Garcia's first issue and hold the trial court's error entitles Garcia to
a new trial. Based on our holding with regard to Garcia's first issue,
we need not address Garcia's remaining issues.

Conclusion

Based on the foregoing, we sustain Garcia's challenge to the trial
court's denial of his motion to suppress and hold the trial court's
ruling constitutes reversible error, entitling Garcia to a new trial.
Accordingly, because the warrantless blood draw violated Garcia's
rights under the Fourth Amendment, and we cannot say beyond
a reasonable doubt that the erroneous admission of the blood
draw results did not [*12] contribute to his conviction, we reverse
the trial court's judgment and remand this matter to the trial court
for a new trial.

Marialyn Barnard, Justice

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