                                                                      PD-1423-15
                  PD-1423-15                         COURT OF CRIMINAL APPEALS
                                                                     AUSTIN, TEXAS
                                                   Transmitted 11/5/2015 11:12:53 AM
                                                      Accepted 11/5/2015 3:03:52 PM
                                                                      ABEL ACOSTA
                     NO. _____________ PD                                     CLERK

                           IN THE

                     COURT OF CRIMINAL

                          APPEALS

                       OF TEXAS
      ___________________________________________

                          EX PARTE

                 TULIO WILFREDO ESCOBAR

                          Petitioner,

_________________________________________________________

             Petition in Cause No. 1329944 from the
            ST
         351 District Court of Harris County, Texas and
                   the Court of Appeals for the
                       1ST District of Texas
_________________________________________________________

        PETITION FOR DISCRETIONARY REVIEW
_________________________________________________________

                                  TOM ABBATE
                                  440 LOUISIANA ST, STE 200
                                  HOUSTON, TX 77002
                                  T: 713.223.0404
                                  F: 800.501.3088
                                  tom@tomabbatelaw.com
                                  SBOT # 24072501

  November 5, 2015
                                  ATTORNEY FOR PETITIONER
              IDENTITIES OF PARTIES AND COUNSEL

PETITIONER:                       MR. TULIO ESCOBAR

PRESIDING JUDGE AT PLEA:          HON. SUZANNE STOVALL
                                  351ST District Court
                                  Harris County Criminal Justice Center
                                  1201 Franklin, 14th Floor
                                  Houston, Texas 77002
                                  (713) 755-5620

PROSECUTOR AT PLEA:               MR. L. BAILY
                                  Assistant District Attorney
                                  Harris Co District Attorney's Office
                                  1201 Franklin, Suite 600
                                  Houston, Texas 77002
                                  (713) 755-5800

PLEA COUNSEL:                     MR. RIGOBERTO RODRIGUEZ
                                  2120 S. Wayside
                                  Houston Texas 77023
                                  (713) 921-1144

HABEAS COUNSEL:                   MR. JUSTIN HARRIS
                                  405 Main St. Ste 450
                                  Houston, Texas 77002
                                  (713) 222-6102

                                  MR. TOM ABBATE
                                  440 Louisiana, Ste 200
                                  Houston, Texas 77002
                                  (713)-223-0404

HABEAS COUNSEL FOR STATE:         MS. LISA COLLINS
                                  Assistant District Attorney
                                  Harris Co District Attorney's Office
                                  1201 Franklin, Suite 600
                                  Houston, Texas 77002
                                  (713) 755-5800


                              2
PRESIDING JUDGE ON HABEAS:       HON. MARK KENT ELLIS
                                 351ST District Court
                                 Harris County Criminal Justice Center
                                 1201 Franklin, 14th Floor
                                 Houston, Texas 77002
                                 (713) 755-5620




                             3
                                         TABLE OF CONTENTS


IDENTITIES OF PARTIES AND COUNSEL .........................................................2
INDEX OF AUTHORITIES......................................................................................5
STATEMENT REGARDING ORAL ARGUMENT ...............................................7
STATEMENT OF THE CASE ..................................................................................7
STATEMENT OF PROCEDURAL HISTORY........................................................8
QUESTION PRESENTED FOR REVIEW ..............................................................9
REASON FOR REVIEW ..........................................................................................9
PRAYER FOR RELIEF ..........................................................................................16
CERTIFICATE OF SERVICE ................................................................................17
CERTIFICATE OF COMPLIANCE .......................................................................18
APPENDIX ..............................................................................................................18




                                                           4
                                           INDEX OF AUTHORITIES
Cases
Aliff v. State, 627 S.W.2d 166 (Tex. Crim. App. 1982) .......................................................... 10, 11
Arizona v. Gant, 556 U.S. 332 (2009) .......................................................................................... 10
Arreola v. State, 207 S.W.3d 387 (Tex. App.—Houston [1st Dist.] 2006) .................................. 14
Aviles v. State, 04-11-00877-CR (Tex. App.— San Antonio 2014) ............................................. 13
Aviles v. State, 385 S.W.3d 110 (Tex. App.— San Antonio 2012) .................................. 11, 12, 15
Aviles v. Texas, 134 S.Ct. 902 (2014) ............................................................................... 11, 12, 15
Beeman v. State 86 S.W.3d 613 (Tex. Crim. App. 2002) ............................................................. 12
Boykin v. Alabama, 395 U.S. 238 (1969) ..................................................................................... 13
Brady v. United States, 397 U.S. 742 (1970) ................................................................................ 13
Edwards v. State, 921 S.W.2d 477 (Tex. App.—Houston [1st Dist.] 1996) ................................ 14
Ex parte Escobar, 01-15-00154-CR (Tex. App. – Houston [1st Dist.] October 6, 2015) ............. 16
Ex parte Karlson, 282 S.W.3d 118 (Tex. App.—Fort Worth 2009) ............................................ 14
Ex parte Morrow, 952 S.W.2d 530 (Tex. Crim. App. 1997) .................................................. 14, 16
Kniatt v. State, 206 S.W.3d 657 (Tex. Crim. App. 2006) ............................................................. 13
Martinez v. State, 981 S.W.2d 195 (Tex. Crim. App. 1998) ........................................................ 13
Missouri v. McNeely, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013) ....................................... 10, 11, 16
Schmerber v. California, 384 U.S. 757 (1966) ....................................................................... 10, 15
State v. Laird, 38 S.W.3d 707 (Tex. App.—Austin 2000) ........................................................... 11
Walter v. State, 28 S.W.3d 538 (Tex.Crim.App. 2000) ................................................................ 10
Weems v. State, 2014 WL 2532299 .............................................................................................. 13
Wiede v. State, 214 S.W.3d 17 (Tex.Crim.App. 2007) ................................................................. 10
Statutes
Tex. Transp. Code Ann. § 724.012 ............................................................................................... 15
Rules
TEX. R. APP. P. 44.2.............................................................................................................. 10, 16
Constitutional Provisions
U.S. CONST. amend. IV .............................................................................................................. 10




                                                                   5
                       NO. _____________ PD

                               IN THE

                       COURT OF CRIMINAL

                              APPEALS

                             OF TEXAS

         ___________________________________________

                             EX PARTE

                    TULIO WILFREDO ESCOBAR

                              Petitioner,

 _________________________________________________________

             Petition in Cause No. 1329944 from the
               ST
         351 District Court of Harris County, Texas and
                   the Court of Appeals for the
                       1ST District of Texas
__________________________________________________________

        PETITION OF DISCRETIONARY REIVEW
TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL
                APPEALS OF TEXAS

  Tulio Escobar, petitions the Court to review the judgment affirming
       The denial of his Application for Writ of Habeas Corpus
  Pursuant to Article 11.072 of the Texas Code of Criminal Procedure




                                   6
               STATEMENT REGARDING ORAL ARGUMENT

      Oral argument would assist to resolve whether the evidence was legally

sufficient to support the conviction obtained against the Petitioner in this case.

                          STATEMENT OF THE CASE

      On May 2, 2012, Petitioner pleaded guilty to the third-degree felony offense

of driving while intoxicated–third offense. Pursuant to an agreed plea bargain, the

trial court assessed Petitioner’s punishment at five years’ confinement in the

Institutional Division of the Texas Department of Criminal Justice and ten days’

confinement in the Harris County jail, but suspended confinement and placed

Petitioner on community supervision for three years.

      On October 6, 2014, the State filed a motion to revoke Petitioner’s community

supervision on the grounds that Petitioner violated the terms of his supervision by:

(1) driving or operating a motor vehicle while his license was suspended and driving

or operating a motor vehicle on two separate occasions without a valid driver’s

license, as evidenced by Petitioner’s admission to a polygraph examiner; (2) driving

or operating a motor vehicle on two separate occasions without a valid driver’s

license, as evidenced by Petitioner’s admission to his community supervision

officer; and (3) failing to maintain financial responsibility.

      Petitioner filed an application for writ of habeas corpus on November 12,

2014, alleging that: (1) the motion to revoke violated his Fifth Amendment right


                                           7
against self-incrimination; (2) his guilty plea was involuntary due to a Fourth

Amendment violation; and (3) his plea counsel was ineffective because he allowed

Escobar to enter an involuntary plea.

                 STATEMENT OF PROCEDURAL HISTORY

      Based on the record and the affidavits submitted, the habeas court found that

Petitioner’s plea was voluntary and that Petitioner failed to demonstrate that his Fifth

Amendment right against self-incrimination was violated because there was no

evidence that Petitioner invoked this right.

      The court of appeals rendered its decision affirming Petitioner’s conviction

on October 6, 2015. Petitioner did not file a motion for rehearing, and the decision

of the court of appeals became its final ruling on October 21, 2015. This petition

was then filed with the clerk of the court of appeals within 30 days after such final

ruling.




                                           8
                   QUESTION PRESENTED FOR REVIEW

      Was Petitioner’s plea involuntary due to the illegality of the seizure
      in light of Missouri v. McNeely?

                             REASON FOR REVIEW

The Law Regarding the Fourth Amendment Generally

      The Fourth Amendment provides that “[t]he right of the people to be secure

in their persons, houses, papers, and effects, against unreasonable searches and

seizures, shall not be violated, and no Warrants shall issue, but upon probable cause.”

U.S. CONST. amend. IV; Wiede v. State, 214 S.W.3d 17, 24 (Tex.Crim.App. 2007).

The Supreme Court has held that a warrantless search of the person is reasonable

only if it falls within a recognized exception. See United States v. Robinson, 414

U.S. 218, 224 (1973); Arizona v. Gant, 556 U.S. 332, 338 (2009); Walter v. State,

28 S.W.3d 538, 541 (Tex.Crim.App. 2000). Exigent circumstances is one such well-

recognized exception. Missouri v. McNeely, 133 S.Ct. 1552, 1562, 185 L.Ed.2d 696

(2013). If an appellate court determines that a defendant’s Fourth Amendment rights

were violated, then it must reverse the judgment unless it determines beyond a

reasonable doubt that the error did not contribute to the conviction or punishment.

TEX. R. APP. P. 44.2(a).




                                          9
The Law Regarding Exigent Circumstances and Blood Specimens Obtained

Without a Warrant in DWI Investigations

       The taking of a blood sample is a search and seizure under both the federal

and Texas constitutions. Aliff v. State, 627 S.W.2d 166, 169 (Tex. Crim. App. 1982).

However, under certain circumstances, a blood sample taken without a warrant is

not an unreasonable search and seizure, and therefore comports with constitutional

requirements. Schmerber v. California, 384 U.S. 757, 770–71 (1966). Police officers

may constitutionally obtain a blood sample without a warrant or consent if they have

probable cause, exigent circumstances, and a reasonable method of extraction. Id.;

see Aliff, 627 S.W.2d at 169– 70). The fact that alcohol dissipates quickly in the

blood has been held to constitute exigent circumstances. Id. at 170 (holding that

taking a blood sample from a person under arrest does not violate the constitution

when officers have probable cause to arrest because alcohol dissipates from the

blood stream at a rapid rate); State v. Laird, 38 S.W.3d 707, 713 (Tex. App.—Austin

2000, pet. ref'd).

       The United States Supreme Court recently held, however, that the fact that

alcohol rapidly dissipates from the bloodstream does not create a per se exigent

circumstance. McNeely, 133 S.Ct. at 1562, 185 L.Ed.2d 696. Instead, the dissipation

of alcohol may be a factor, among others, in the exigency analysis under the larger

totality of the circumstances test. See id. Specifically, the Court held that the trial


                                          10
court should conduct a "careful case-by-case assessment of exigency and ... [that i]n

those drunk-driving investigations where police officers can reasonably obtain a

warrant before a blood sample can be drawn without significantly undermining the

efficacy of the search, the Fourth Amendment mandates that they do so." Id. at 1561.

The Law Regarding Mandatory Blood Specimens Obtained Without a Warrant

in DWI Investigations

      Further, the mandatory blood draw provision of the Transportation Code has

been previously used to justify involuntary, warrantless blood draws. See Aviles v.

State, 385 S.W.3d 110, 116 (Tex. App. — San Antonio 2012), vacated, 134 S.Ct.

902 (2014). In that case, the Court of Appeals held that a warrantless blood draw of

a DWI suspect that was conducted according to the prescriptions of the

Transportation Code did not violate the suspect's rights under the Fourth

Amendment. In so holding, it quoted Beeman v. State for the proposition that the

implied consent law allows officers to draw blood "in certain limited circumstances

even without a search warrant." 86 S.W.3d 613, 615 (Tex. Crim. App. 2002); Aviles,

385 S.W.3d at 115. The court reasoned that "[t]his situation, as outlined in section

724.012, is one of the 'circumstances' the Texas Court of Criminal Appeals has held

where blood may be drawn without a search warrant." Id. at 116 (citing Beeman, 86

S.W.3d at 616).




                                         11
      The court concluded that whether the officer could have obtained a warrant

before authorizing the blood draw was "immaterial given the mandate of section

724.012(b)(3)(B)." Id. at 116. Thus, the court held that "the warrantless seizure of

Aviles's blood was conducted according to the prescriptions of the Transportation

Code, and without violating Aviles's Fourth Amendment rights." Id. The Texas

Court of Criminal Appeals denied Aviles's petition for discretionary review.

      However, on January 13, 2014, the Supreme Court granted certiorari and

vacated the Court of Appeals’ judgment. Aviles v. Texas, 134 S.Ct. 902 (2014). It

then remanded the case "for further consideration in light of Missouri v. McNeely."

Id. On remand, the Court of Appeals held “[l]ooking at the mandatory blood draw

statute and the implied consent statute, we held in Weems these statutes clearly create

categorical or per se rules the McNeely court held were not permissible exceptions

to the Fourth Amendment's warrant requirement.” Aviles v. State, 04-11-00877-CR

(Tex. App. — San Antonio August 6, 2014) (citing Weems v. State, 2014 WL

2532299, at *8).

The Law Regarding Voluntariness of Pleas Generally

      A guilty plea constitutes a waiver of three constitutional rights: the right to a

jury trial, the right to confront one's accusers, and the right not to incriminate oneself.

Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006) (citing Boykin v.

Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274 (1969) ).


                                            12
Accordingly, due process of law requires that guilty pleas be knowingly,

intelligently, and voluntarily made. Kniatt, 206 S.W.3d at 664. To be "voluntary,"

a guilty plea must be the expression of the defendant's own free will and not obtained

by threats, misrepresentations, or improper promises. Id. (citing Brady v. United

States, 397 U.S. 742, 755, 90 S.Ct. 1463, 1472, 25 L.Ed.2d 747 (1970)). When

assessing the voluntariness of a guilty plea, courts examine the entire record and

consider all of the relevant circumstances surrounding the plea. Martinez v. State,

981 S.W.2d 195, 197 (Tex. Crim. App. 1998) (per curium).

      A record that indicates that a trial court properly admonished a defendant

presents a prima facie showing that the guilty plea was made voluntarily and

knowingly. See Id; Arreola v. State, 207 S.W.3d 387, 391 (Tex. App.—Houston

[1st Dist.] 2006, no pet.). When the record presents a prima facie showing that the

applicant entered their plea voluntarily and knowingly, the burden shifts to the

defendant to show that they entered the plea without understanding the consequences

of the plea. Edwards v. State, 921 S.W.2d 477, 479 (Tex. App.—Houston [1st Dist.]

1996, no pet.).

      The test for determining the validity of a plea is whether it represents a

voluntary and intelligent choice among alternative courses of action open to the

defendant. Ex parte Karlson, 282 S.W.3d 118, 129 (Tex. App.—Fort Worth 2009,

pet. ref’d). A guilty plea made by a defendant fully aware of the plea’s direct


                                         13
consequences must stand unless it was induced by threats, misrepresentations, or

promises that are by their nature improper. Ex parte Morrow, 952 S.W.2d 530, 534–

35 (Tex. Crim. App. 1997), cert. denied, 525 U.S. 810 (1998).

Analysis

      As stated previously, a deputy with Harris County Constable Precinct One

arrested Petitioner for Driving While Intoxicated after Petitioner was found to be

asleep while seated behind the steering wheel of his vehicle with the engine running.

Petitioner was promptly arrested without being offered the opportunity to perform

any Standardized Field Sobriety Tests. After being transported to the police station,

deputies discovered that Petitioner had been twice previously convicted of the

offense of Driving While Intoxicated. Subsequently, and pursuant to Texas

Transportation Code Section 724.012, a “mandatory” blood draw was conducted on

Applicant without his consent and without a valid search warrant. See Tex. Transp.

Code Ann. § 724.012(b)(1). Analysis of Petitioner’s blood revealed a blood alcohol

content in excess of .08g/100mL. No other evidence of Petitioner’s intoxication was

obtained.

      Although McNeely had not been decided at the time Petitioner entered his

plea, it is not new law that may or may not be retroactively applied. Rather, this

ruling is at most a clarification of existing law. Schmerber, 384 U.S. at 770–71. For

the last forty-eight years, it has been constitutionally permissible for police officers


                                          14
to obtain a blood sample without a warrant or consent if they have probable cause,

exigent circumstances, and a reasonable method of extraction. Id. However, Texas

courts have erroneously assumed that the mandatory draw provisions of the

Transportation Code comported with constitutional requirements of the Fourth

Amendment.

      Further, as the Aviles case’s procedural history demonstrates, the Supreme

Court’s ruling in McNeely applies to convictions obtained prior to its 2013 decision.

See Aviles v. State, 385 S.W.3d 110, 116 (Tex. App. — San Antonio 2012), vacated,

134 S.Ct. 902 (2014)(emph added). Therefore, because McNeely is merely a

clarification designed to correct the misconceptions of various state courts, its

holding entitles Applicant to relief in this case.

      The Court of Appeals held that Petitioner waived this issue as no motion to

suppress was ever filed. Ex parte Escobar, 01-15-00154-CR (Tex. App. – Houston

[1st Dist.] October 6, 2015). However, that holding only serves to highlight the

problem with the case at bar, namely, that Petitioner’s plea was rendered involuntary

due to the erroneous assumptions of the appellate courts of this state. If Petitioner

had filed a motion to suppress, it would have been denied as the court would have

held that the evidence was seized pursuant to an exception to the warrant

requirement. Had Petitioner proceeded to trial, been convicted, and then appealed

that denial, as the Court of Appeals argued he should have, reversal would only have


                                           15
come if the McNeely clarification had come prior to the Court of Appeals’ opinion,

or the denial of a subsequent petition for discretionary review.

      The Court of Appeals’ holding of waiver, therefore, implicitly dismisses the

violation of Petitioner’s, as well as many others’, Fourth Amendment rights as

irrelevant. This is fundamentally unfair as the defendants in these cases were not

fully aware of the direct consequences of their plea, namely, that they were giving

up valid rights to challenge evidence seized in violation of the Fourth Amendment.

Morrow, 952 S.W.2d at 534–35; McNeely, 133 S.Ct. at 1562, 185 L.Ed.2d 696.

      Finally, the threshold for harm stemming from a Fourth Amendment violation

is that reversal is required unless it is determined beyond a reasonable doubt that the

error did not contribute to the conviction or punishment. TEX. R. APP. P. 44.2(a).

Petitioner argues that rule should apply to the case at bar. Under the clarification

embraced in McNeely, Applicant’s Fourth Amendment rights were clearly violated.

Further, that violation clearly contributed to his conviction as it was the only

evidence of intoxication obtained. Moreover, had this violation not occurred, and

had Texas law not promoted an invalid exception to the warrant requirement,

Petitioner would not have entered a plea of guilty in this case.

                             PRAYER FOR RELIEF

      ACCORDINGLY, this Court should GRANT this PETITION FOR

DISCRETIONARY REVIEW and ORDER briefs on the merits to answer the


                                          16
question of whether the evidence against the Petitioner was legally sufficient to

support his conviction.

      Petitioner further prays for all relief to which he may be entitled.

                                               Respectfully submitted,


                                               ______________________________
                                               TOM ABBATE
                                               440 LOUISIANA ST, STE 200
                                               HOUSTON, TX 77002
                                               T: 713.223.0404
                                               F: 800.501.3088
                                               tom@tomabbatelaw.com
                                               SBOT # 24072501

                                               ATTORNEY FOR PETITIONER




                          CERTIFICATE OF SERVICE


      This is to certify that on the day of NOVEMBER 5, 2015 a true and correct

copy of the above and foregoing Petition for Discretionary Review was served on

the Harris County District Attorney’s Office, 1201 Franklin, Suite 600, Houston,

Texas 77002, by FAX (713.755.5809).


                                           ______________________________
                                           TOM ABBATE




                                          17
               CERTIFICATE OF COMPLIANCE

I hereby certify that there are 2919 words contained in this document.


                                   ______________________________
                                   TOM ABBATE




                                  18
APPENDIX




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