                                                                                           ACCEPTED
                                                                                       03-13-00494-CR
                                                                                               7558353
                                                                            THIRD COURT OF APPEALS
                                                                                       AUSTIN, TEXAS
                           Kristen Jernigan                                      10/27/2015 1:21:36 PM
                                                                                     JEFFREY D. KYLE
                         Attorney at Law                                                        CLERK

           207 S. Austin Ave., Georgetown, Texas 78626
           (512) 904-0123 (OFFICE) (512) 931-3650 (FAX) FILED IN
                     Kristen@txcrimapp.com       3rd COURT OF APPEALS
                                                      AUSTIN, TEXAS
                                                            10/27/2015 1:21:36 PM
                                  B BCERTIFIED*
                                      OARD                     JEFFREY D. KYLE
                                                    CRIMINAL APPELLATE        LAW
                                                                     Clerk




October 27, 2015

VIA CERTIFIED MAIL

Eugene Kelly Wolfenberger
TDCJ No. 01871101
Powledge Unit
1400 FM 3452
Palestine, Texas 75803

      Re: Eugene Kelly Wolfenberger v. The State of Texas,
           No. 03-13-00494-CR

Dear Eugene:

      I have enclosed a copy of the Court of Appeals' opinion in your case.
Unfortunately, your conviction and sentence were affirmed by the Court. The
Court's opinion was issued on October 23, 2015. I have filed a Motion for
Rehearing and a Motion for Reconsideration En Banc so that the entire Court can
review the opinion issued in your case because I believe it was incorrectly
analyzed. I have enclosed copies of those motions as well.

      Ordinarily, you would now be in a position to file a pro se Petition for
Discretionary Review. However, the filing of the Motion for Rehearing and the
Motion for Rehearing En Banc will postpone the deadline for doing so. Should
the Court of Appeals deny the Motion for Rehearing and the Motion for
Reconsideration En Banc, your pro se Petition for Discretionary Review will be
due within thirty days of the date of the Court's opinion. I have enclosed a copy of
the relevant Rules of Appellate Procedure concerning Petitions for Discretionary
Review so that you can review them for preparing a Petition for Discretionary
Review, should the Court deny our pending motions. I will let you know as soon
as the Court makes a decision on the motions and will send additional instructions
at that time. Take care.


                                            Sincerely,
                                            /s/ Kristen Jernigan

                                            Kristen Jernigan
      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-13-0494-CR



                             Eugene Kelly Wolfenberger, Appellant

                                                 v.

                                  The State of Texas, Appellee


              FROM THE 264TH DISTRICT COURT OF BELL COUNTY, TEXAS
              NO. 68431, HONORABLE MARTHA J. TRUDO, JUDGE PRESIDING



                             MEMORANDUM OPINION


               A jury found appellant, Eugene Kelly Wolfenberger, guilty of intoxication

manslaughter and assessed a punishment of twenty years' confinement in the Texas Department of

Criminal Justice and a fine of $ 10,000. Appellant timely appealed, asking this Court to reverse his

judgment and sentence because: (1) he received ineffective assistance of counsel; (2) the trial court

erroneously admitted privileged statements into evidence; and (3) there was insufficient evidence

to support his conviction. For the following reasons, we will affirm.


                                         BACKGROUND

               Appellant is a military veteran who struggles with alcoholism and has been diagnosed

with severe post traumatic stress disorder (PTSD). On August 22,2010, he struck and fatally injured

a motorcyclist while driving his wife's Toyota Camry home from a bar and then fled the scene of the

accident. He was later tried and convicted of intoxication manslaughter.
                At appellant's trial, the State offered the testimony of Officer Garland Potvin, an

expert witness certified in accident reconstruction who concluded that appellant struck the

motorcyclist from behind while driving at least fifty-four miles per hour in a thirty-miles-per-hour

zone. Brian Haygood, appellant's expert witness who is a forensic mechanical engineer, testified

that appellant was driving near the speed limit and that Potvin's conclusions are unreliable because

he used an inappropriate formula and performed tests with a Chevrolet Impala rather than a

Toyota Camry.

                The collision occurred at approximately 9:30 p.m. It was dark, and the motorcyclist

was allegedly wearing dark clothing. Appellant admits to hitting and killing the motorcyclist, but

maintains that he was not intoxicated at that time. He claims that the accident triggered his PTSD,

causing him to panic and flee to his home two blocks away where he proceeded to drink heavily to

avoid facing the situation.

                At trial, appellant's wife testified that she arrived at their home sometime between

9:30 p.m. and 10:30 p.m. to find appellant naked, disoriented, and surrounded by numerous empty

beer cans. She also testified that she did not see him consume any alcohol after finding him. After

discovering the damage to her Camry, appellant's wife called 911 at 10:25 p.m. to report what she

then believed to be an incident of drunk driving.

                Officer William Pereyra was dispatched to appellant's home. At trial, he testified that

he arrived at approximately 10:51 p.m., that appellant displayed signs of intoxication, and that

appellant said "I'm the one you're looking for. I did the bad deed," and "I hit him." Pereyra arrested

appellant and transported him to a hospital. Appellant did not consent to a blood draw, so Pereyra
obtained one despite appellant's refusal pursuant to the Texas Transportation Code1 at approximately

11:30 p.m. A forensic scientist determined that appellant's blood-alcohol concentration was

0.3 when it was drawn, more than three times higher than the concentration at which a person is

deemed to be intoxicated under Texas law. See Tex. Penal Code § 49.01(2) ("'Intoxicated' means

... having an alcohol concentration of 0.08 or more.").

               Appellant asserts that he consumed a total of three alcoholic drinks prior to the

accident—one beer at home in the afternoon, a second beer at a bar where he met his son that

evening, and a third beer at another bar they visited later that evening. At trial, appellant produced

bills for $5.75 from the first bar and $20.00 from the second bar, which includes a $7.00 tip. He

claims that he made no additional drink purchases that evening, that he paid for his son's drinks as

well as his own, and that the second bill includes approximately $5.00 for use of a pool table.

Appellant's son testified that he showed no signs of intoxication while they were together.

               Appellant's wife took him to the VA emergency room two days after the accident,

where they met with social worker, Debra Housewright. Housewright testified that appellant "said

he was intoxicated and he hit them and he panicked and fled the scene." Housewright also noted that

they discussed his drinking and that she "did an alcohol assessment on him." Appellant's wife

testified that neither of them told Housewright that he was intoxicated at the time of the accident,




        1 See Tex. Transp. Code § 724.012(b) (officer shall require involuntary taking of breath or
blood specimen when arresting person for offense under Chapter 49 of Texas Penal Code if officer
suspects someone has suffered serious bodily injury, died, or will die as result of accident and person
arrested was operating vehicle involved in accident).
but that she told Housewright "he had been drinking that night." She also testified that appellant told

her he could not remember the accident and that he could not believe that he had killed someone.

                After their meeting with Housewright, appellant and his wife met with staff

psychiatrist, Dr. Girija Chintapalli. His notes indicate that appellant said he was intoxicated at the

time of the accident, but Chintapalli could not remember their conversation well enough to rule out

the possibility that he read this in Housewright's notes rather than hearing it directly from appellant.

               Chintapalli testified that drinking and avoidance are common coping mechanisms of

those suffering from PTSD. He also confirmed that some people experience memory loss after

episodes of PTSD and try to fill in the blanks and parrot what they hear from others about events

they cannot remember.

               Appellant's trial counsel argued that appellant was sober at the time of the accident,

then fled to his home and drank numerous beers to cope with the stress. Trial counsel contended that

appellant's PTSD caused him to block these traumatic events out of his memory and that he was

merely repeating what others had said when he told Housewright and Chintapalli that he was

intoxicated at the time of the accident. He made no objection to Housewright's testimony and,

although he made several unsuccessful objections to Chintapalli's testimony, he did not claim

privilege. Nor did he move to suppress the evidence of appellant's blood-alcohol concentration.

Trial counsel moved for a directed verdict, arguing that the State failed to prove that appellant was

intoxicated when he struck the motorcyclist as required for a conviction of intoxication

manslaughter. See Tex. Penal Code § 49.08. The trial court denied that motion, and the jury

convicted appellant of intoxication manslaughter. This appeal followed.
                                          DISCUSSION

               Appellant argues that: (1) he received ineffective assistance of counsel because his
trial attorney did not move to suppress illegally obtained evidence of his blood-alcohol

concentration; (2) the trial court erred in admitting statements he made to Housewright and

Chintapalli while seeking treatment for alcohol abuse because they were privileged under Texas Rule

of Evidence 509(b); and (3) there was insufficient evidence to convict him because nothing shows

that he was intoxicated at the time of the accident. The State counters that: (1) appellant has not

shown ineffective assistance of counsel because the evidence of his blood-alcohol concentration

supported the defensive theory that appellant binge drank after the accident; (2) appellant failed to

preserve the issue of privilege for review, and the statements to Housewright and Chintapalli were

not privileged because appellant was not seeking treatment for alcohol abuse; and (3) there was

sufficient evidence to support the conviction. Based on the record before us, we will affirm.


Ineffective Assistance

               To establish ineffective assistance of counsel, an appellant must demonstrate by a

preponderance of the evidence (1) deficient performance by counsel and (2) prejudice. Strickland

v. Washington, 466 U.S. 668, 687 (1984); Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex. Crim.

App. 1986) (adopting Strickland test). Appellate courts must look to "the totality of the

representation and the particular circumstances of each case in evaluating the effectiveness of

counsel." Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). To satisfy the first part

of the Strickland test, the appellant must demonstrate that counsel's performance fell below an

objective standard of reasonableness under the prevailing professional norms. Strickland, 466 U.S.
at 687-88. There is a strong presumption that counsel's performance was not deficient. Id. at 689.

If, as in this case, trial counsel has not had the chance to explain his conduct, "then the appellate

court should not find deficient performance unless the challenged conduct was 'so outrageous that

no competent attorney would have engaged in it.'" Menefield v. State, 363 S.W.3d 591, 593 (Tex.

Crim. App. 2012) (citations omitted). To satisfy the second part of the Strickland test, the appellant

must show that there is a reasonable probability that the result of the trial would have been different

if counsel's performance was not deficient. Strickland, at 694. The probability must be strong

enough to undermine confidence in the outcome of the trial. Id. "Failure to make the required

showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim."

Id. at 700.

               Appellant contends that his trial counsel could and should have moved to suppress

the evidence of his blood-alcohol concentration because it was obtained illegally from an

unconstitutional, warrantless search. He argues that the United States Supreme Court invalidated

Texas's implied-consent statute in Missouri v. McNeely, 133 S. Ct. 1552, 1561 (2013) ("In 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."). According to appellant, there was no possible strategic

reason for failing to move to suppress this evidence and harm is apparent because appellant's

blood-alcohol concentration was central to the State's case.
               However, appellant has not shown deficient performance. The law on mandatory

blood draws and implied consent was not settled when trial counsel presented appellant's case,2 and

the Texas Court of Criminal Appeals has "repeatedly declined to find counsel ineffective for failing

to take a specific action on an unsettled issue." State v. Bennett, 415 S.WJd 867, 869 (Tex. Crim.

App. 2013). Bernal v. State, No. 02-13-00381-CR, 2014 WL 5089182, at *5 (Tex. App.—Fort

Worth Oct. 9,2014, no pet.) (mem. op.) (counsel was not ineffective for failing to suppress results

of warrantless, nonconsensual blood draw under McNeely because "McNeely did not address directly

the effect of mandatory-blood-draw or implied-consent statues on the warrant requirement," and "the

import of McNeely on Texas's mandatory-blood-draw and implied-consent statutes was unsettled

at the time of [appellant's] trial and remains unsettled today."). Trial counsel argued that appellant

was sober when he hit the motorcyclist, then rushed home and drank heavily. Appellant's high

blood-alcohol concentration when his blood was drawn approximately one hour after he claims to

have had a binge drinking session is completely consistent with this theory of the case. Appellant

has, therefore, not "overcome the presumption that the challenged action," i.e., trial counsel's

inaction in allowing the State to present corroborative evidence, '"might be considered sound trial

strategy.'" Strickland, 466 U.S. at 689 (quotingMichel v. Lousiana, 350 U.S. 91,101 (1955)). We


       2 Trial commenced on July 8,2013, more than two months after the Supreme Court held that
 blood-alcohol dissipation is not a per se exigency justifying warrantless, nonconsensual blood draws
in. Missouri v. McNeely, 133 S. Ct. 1552 (2013). However, the Texas Court of Criminal Appeals did
not address whether nonconsensual blood draws taken pursuant to Texas Transportation Code
 § 724.012 require a warrant until after appellant's trial concluded, and the court has since decided
to reconsider that ruling on rehearing. State v. Villarreal, S.W.3d , No. PD-0306-14,
2014 WL 6734178, at *8-9, 11 (Tex. Crim. App. Nov. 26, 2014) (reh'g granted). The law
 surrounding Texas's implied-consent and mandatory-blood-draw statutes has been unsettled since
before appellant's trial.
cannot find trial counsel deficient for failing to rely on unsettled law to suppress evidence that

supported the defensive theory offered at trial.

               Further, appellant has not shown that trial counsel's allegedly deficient performance

prejudiced him. Even if trial counsel had successfully moved to suppress evidence of appellant's

blood-alcohol concentration, other evidence of intoxication would have remained, including Officer

Pereyra's testimony that he observed signs of intoxication in appellant and the testimony of

Housewright and Chintapalli that appellant told them that he was intoxicated during the accident.

There is not a reasonable probability that the result of the trial would have been different if trial

counsel had moved to suppress.

               In that the record does not support a finding of deficient performance or prejudice

under the Strickland standard, we overrule appellant's first point of error.


Statements to Housewright and Chintapalli

               Appellant contends that we should reverse his conviction because his statements to

Housewright and Chintapalli were privileged under Texas Rule of Evidence 509(b) and should,

therefore, have been excluded. We disagree. Appellant made no objection to Housewright's

testimony, and none of his objections to Chintapalli's testimony concerned privilege. He has,

therefore, failed to preserve this issue for appeal. See Tex. R. Evid. 33.1 (to preserve issue for

appellate review, party must make timely objection and obtain ruling or refusal to rule from trial

court); Dixon v. State, 2 S.W.3d 263, 269-70 (Tex. Crim. App. 1998) ("To preserve error for

appellate review, the complaining party must make a timely, specific objection and obtain a ruling
on the objection," and "the compliant on appeal must comport with the objection at trial.") (citations

omitted). Consequently, we overrule this point of error.


Sufficiency of the Evidence

               When reviewing the legal sufficiency of the evidence, we must view the evidence in

the light most favorable to the verdict and determine whether any rational trier of fact could have

found each essential element of the offense beyond a reasonable doubt based on the evidence before

it and reasonable inferences therefrom. Jackson v. Virginia, 443 U.S. 307, 320 (1979); Brooks

v. State, 323 S.W.3d 893, 896 (Tex. Crim. App. 2010). "A reviewing court is required to defer to

a jury's credibility and weight determinations." Brooks, 323 S.W.3d at 894. "[T]he jury is entitled

to judge the credibility of the witnesses and can believe all, some, or none of the testimony presented

by the parties," Chambers v. State, 805 S.W.2d 459,461 (Tex. Crim. App. 1991), and may "draw

reasonable inferences from the basic facts to ultimate facts," Jackson, 443 U.S. at 319. The

"reviewing court must consider all evidence which the jury was permitted, whether rightly or

wrongly, to consider." Thomas v. State, 753 S.W.2d 688, 695 (Tex. Crim. App. 1988) (en banc).

               Appellant argues that there was insufficient evidence to support his conviction

because the State failed to prove the intoxication element of intoxication manslaughter. See Tex.

Penal Code §§ 49.08 (person commits intoxication manslaughter if he operates a motor vehicle in

public place, is intoxicated, and causes death of another by accident or mistake by reason of

intoxication), 49.01(2) ("'Intoxicated' means: (A) not having the normal use of mental or physical

faculties by reason of the introduction of alcohol . . . into the body; or (B) having an alcohol

concentration of 0.08 or more."). Appellant acknowledges that there is evidence that he became
                                  No. 03-13-00494-CR

                                  In the
                           COURT OF APPEALS
                                 For the
                    THIRD SUPREME JUDICIAL DISTRICT
                                at Austin


                 On Appeal from the 264th Judicial District Court of
                               Bell County, Texas
                              Cause Number 68431


                EUGENE KELLY WOLFENBERGER, Appellant
                                 v.
                     THE STATE OF TEXAS, Appellee


                 APPELLANT'S MOTION FOR REHEARING1


                                       Background

       On July 12, 2013, a jury found Appellant guilty of the offense of

intoxication manslaughter and assessed Appellant's punishment at twenty years in

prison and a $10,000.00 fine. Appellant timely filed Notice of Appeal and on

October 23, 2015, this Court affirmed Appellant's conviction in a memorandum

opinion. Wolfenberger v. State, No. 03-13-00494-CR (Tex. App.—Austin,

delivered October 23, 2015).
1 Simultaneous with this filing, Appellant has also filed a Motion for Reconsideration En Banc
in light of Texas Rule of Appellate Procedure 49.1 and Franks v. State, 97 S.W.3d 584, 584
(Tex. Crim. App. 2003).
                              Grounds for Rehearing

      On appeal, Appellant argued that Appellant received ineffective assistance

of counsel when trial counsel failed to move to suppress the results of a blood draw

taken pursuant to Texas's now invalidated implied consent mandatory blood draw

statute. Specifically, Appellant's blood was taken without a warrant in violation of

Missouri v. McNeely, 133 S.Ct. 1522 (2013), and his attorneys failed to object on

that basis. Despite the fact that the McNeely case, which held that Texas's implied

consent statute did not provide an exception to the Supreme Court's long-held

requirement that a warrant be obtained to draw a suspect's blood, was released
more than two months prior to trial, and was binding Supreme Court's precedent,

trial counsel made no effort to suppress the results of the blood draw.

      Rehearing should be granted because this Court absolved trial counsel's
deficient performance by failing to recognize the authority of the United States

Supreme Court in analyzing its own precedent and instead, ruled that the Texas

Court of Criminal Appeals decisions analyzing United States Supreme Court

precedent should control.
       Ineffective Assistance of Counsel

       As discussed above, on Appeal, Appellant argued that he received

ineffective assistance of counsel when trial counsel failed to move to suppress the

results of the mandatory blood draw in this case pursuant to the United States

Supreme Court's holding in Missouri v. McNeely, 133 S.Ct. 1522 (2013).

       On April 17, 2013, the United States Supreme Court issued an opinion in

Missouri v. McNeely, 133 S.Ct. 1522 (2013), holding that "In 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. In so holding, the Court

rejected a per se rule that the dissipation of alcohol in the blood stream creates an

exigency which absolves the State of the duty to obtain a warrant before taking a

suspect's blood. Id. In fact, the Court recognized its long-standing directive that

exigency be determined on the totality of the circumstances and cited its opinion in

Schmerber v. California, 384 U.S. 757 (1966). Despite the fact that Appellant's

trial occurred more than two months after the McNeely decision, trial counsel made


2 As this Court is aware, to prevail on a claim of ineffective assistance of counsel, Appellant
  must show that (1) trial counsel's representation was deficient in that it fell below an objective
  standard of reasonableness; and (2) counsel's deficient performance prejudiced Appellant so
  that there is a reasonable probability that the result of the proceeding would have been
  different but for the deficient performance. Strickland v. Washington, 466 U.S. 668 (1984);
  Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).
                                               3
no attempt to move to suppress evidence of Appellant's blood alcohol content of

.30 and trial counsel made no objection to that evidence.

      This Court absolved trial counsel of any duty to file a motion to suppress or

object to evidence of Appellant's blood alcohol content because "The law on

mandatory blood draws and implied consent was not settled when trial counsel

presented appellant's case" and stated further in a foot note that:

      Trial commenced on July 8, 2013, more than two months after the
      Supreme Court held that blood-alcohol dissipation is not a per se
      exigency justifying warrantless, nonconsensual blood draws in
      Missouri v. McNeely, 133 S. Ct. 1552 (2013). However, the Texas
      Court of Criminal Appeals did not address whether nonconsensual
      blood draws taken pursuant to Texas Transportation Code § 724.012
      require a warrant until after appellant's trial concluded, and the court
      has since decided to reconsider that ruling on rehearing. State v.
      Villarreal, _ S.W.3d _, No. PD-0306-14, 2014 WL 6734178, at *8-
      9, 11 (Tex. Crim. App. Nov. 26, 2014) (reh'g granted). The law
      surrounding Texas's implied-consent and mandatory-blood-draw
      statutes has been unsettled since before appellant's trial.


Wolfenberger v. State, No. 03-13-00494-CR (Tex. App.—Austin, delivered

October 23,2015), at 7.

      Interestingly, this Court acknowledges the Supreme Court's clear holding

"that blood-alcohol dissipation is not a per se exigency justifying warrantless,

nonconsensual blood draws" in Missouri v. McNeely, 133 S. Ct. 1552 (2013),

which would have triggered counsel's duty to object or move to suppress the
evidence on that basis. The Court then essentially states that it is up to the Court of

Criminal Appeals to interpret the Supreme Court's holdings and until the Court of

Criminal Appeals does so, the Supreme Court's holdings are not binding on

counsel.

        In its opinion, this Court cites two cases for the proposition that counsel's

performance cannot be held to be deficient where an area of law is unsettled. See

State v. Bennett, 415 S.W.3d 867 (Tex. Crim. App. 2013) and Bernal v. State, No.

02-13-00381-CR, 2014 WL 5089182 (Tex. App.—Fort Worth Oct. 9, 2014, no

pet).

        In the first of those cases, the area of unsettled law was that of a State statute

and its meaning as interpreted by several conflicting opinions by the Court of

Criminal Appeals. See State v. Bennett, 415 S.W.3d at 868-869. The Bennett

opinion in no way contemplated United States Supreme Court precedent. See Id.

        In the second, unpublished case with no precedential value, the Fort Worth

Court of Appeals held that counsel was not ineffective for failing to suppress

results of a warrantless, nonconsensual blood draw under McNeely because

"McNeely did not address directly the effect of mandatory-blood-draw or implied-

consent statues on the warrant requirement," and "the import of McNeely on

Texas's mandatory-blood-draw and implied-consent statutes was unsettled at the
time of [appellant's] trial..." See Bernal, No. 02-13-00381-CR, slip. op. at 10-12.

       However, those statements are incorrect. In fact, in its opinion in the

McNeely case, the United States Supreme Court directly addressed the various

implied consent laws adopted by the fifty states and noted that a driver who has

impliedly consented to blood alcohol testing as a condition of operating a motor

vehicle on public roads can withdraw that consent if asked to give a blood or

breath sample. Missouri v. McNeely, 133 S.Ct. 1522 (2013). The Court stressed

that "wide-spread state restrictions on nonconsensual blood testing provide further

support for our recognition that compelled blood draws implicate a significant

privacy interest." Id.

      It is well-settled that United States Supreme Court precedent controls and

when the United States Supreme Court requires a warrant in a blood draw case,

counsel should have a duty to object to blood evidence obtained without a warrant.

To fail to do so is deficient performance, especially in a case where the evidence

indicates Appellant was almost four times the legal level for intoxication and there

is a dispute as to whether he was intoxicated at the time the alleged offense was

committed. Because this Court held to the contrary, and for the foregoing reasons

rehearing should be granted.
                                      PRAYER

      WHEREFORE, PREMISES CONSIDERED, Appellant respectfully

requests that this Court grant rehearing in this case.

                                               Respectfully submitted,

                                                         /s/ Kristen Jernigan


                                               KRISTEN JERNIGAN
                                               State Bar Number 90001898
                                               207 S. Austin Ave.
                                               Georgetown, Texas
                                               (512)904-0123
                                               (512) 931-3650 (fax)
                                               Kristen@txcrimapp.com


                          CERTIFICATE OF SERVICE

      This is to certify that a true and correct copy of the foregoing Appellant's

Motion for Rehearing was mailed to Bob Odom at the Bell County District

Attorney's Office, 1200 Huey Road, Belton, Texas 76513, on October 27, 2015.


                                               /s/ Kristen Jernigan

                                             Kristen Jernigan
                                    No. 03-13-00494-CR

                                   In the
                            COURT OF APPEALS
                                  For the
                     THIRD SUPREME JUDICIAL DISTRICT
                                 at Austin


                  On Appeal from the 264th Judicial District Court of
                                Bell County, Texas
                               Cause Number 68431


                 EUGENE KELLY WOLFENBERGER, Appellant
                                  v.
                      THE STATE OF TEXAS, Appellee


      APPELLANT'S MOTION FOR RECONSIDERATION EN BANC1


                                         Background

       On July 12, 2013, a jury found Appellant guilty of the offense of

intoxication manslaughter and assessed Appellant's punishment at twenty years in

prison and a $10,000.00 fine. Appellant timely filed Notice of Appeal and on

October 23, 2015, this Court affirmed Appellant's conviction in a memorandum

opinion. Wolfenberger v. State, No. 03-13-00494-CR (Tex. App.—Austin,

delivered October 23, 2015).
1 Simultaneous with this filing, Appellant has also filed a Motion for Rehearing in light of Texas
Rule of Appellate Procedure 49.1 and Franks v. State, 97 S.W.3d 584, 584 (Tex. Crim. App.
2003).
                            Grounds for Reconsideration

      On appeal, Appellant argued that Appellant received ineffective assistance

of counsel when trial counsel failed to move to suppress the results of a blood draw

taken pursuant to Texas's now invalidated implied consent mandatory blood draw

statute. Specifically, Appellant's blood was taken without a warrant in violation of

Missouri v. McNeely, 133 S.Ct. 1522 (2013), and his attorneys failed to object on

that basis. Despite the fact that the McNeely case, which held that Texas's implied

consent statute did not provide an exception to the Supreme Court's long-held

requirement that a warrant be obtained to draw a suspect's blood, was released
more than two months prior to trial, and was binding Supreme Court's precedent,

trial counsel made no effort to suppress the results of the blood draw.

      Reconsideration should be granted because this Court absolved trial

counsel's deficient performance by failing to recognize the authority of the United

States Supreme Court in analyzing its own precedent and instead, ruled that the

Texas Court of Criminal Appeals decisions analyzing United States Supreme Court

precedent should control.
       Ineffective Assistance of Counsel

       As discussed above, on Appeal, Appellant argued that he received

ineffective assistance of counsel when trial counsel failed to move to suppress the

results of the mandatory blood draw in this case pursuant to the United States

Supreme Court's holding in Missouri v. McNeely, 133 S.Ct. 1522 (2013).

       On April 17, 2013, the United States Supreme Court issued an opinion in

Missouri v. McNeely, 133 S.Ct. 1522 (2013), holding that "In 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. In so holding, the Court

rejected a per se rule that the dissipation of alcohol in the blood stream creates an

exigency which absolves the State of the duty to obtain a warrant before taking a

suspect's blood. Id In fact, the Court recognized its long-standing directive that

exigency be determined on the totality of the circumstances and cited its opinion in

Schmerber v. California, 384 U.S. 757 (1966). Despite the fact that Appellant's

trial occurred more than two months after the McNeely decision, trial counsel made


2 As this Court is aware, to prevail on a claim of ineffective assistance of counsel, Appellant
  must show that (1) trial counsel's representation was deficient in that it fell below an objective
  standard of reasonableness; and (2) counsel's deficient performance prejudiced Appellant so
  that there is a reasonable probability that the result of the proceeding would have been
  different but for the deficient performance. Strickland v. Washington, 466 U.S. 668 (1984);
  Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).
                                               3
no attempt to move to suppress evidence of Appellant's blood alcohol content of

.30 and trial counsel made no objection to that evidence.

      This Court absolved trial counsel of any duty to file a motion to suppress or

object to evidence of Appellant's blood alcohol content because "The law on

mandatory blood draws and implied consent was not settled when trial counsel

presented appellant's case" and stated further in a foot note that:

      Trial commenced on July 8, 2013, more than two months after the
      Supreme Court held that blood-alcohol dissipation is not a per se
      exigency justifying warrantless, nonconsensual blood draws in
      Missouri v. McNeely, 133 S. Ct. 1552 (2013). However, the Texas
      Court of Criminal Appeals did not address whether nonconsensual
      blood draws taken pursuant to Texas Transportation Code § 724.012
      require a warrant until after appellant's trial concluded, and the court
      has since decided to reconsider that ruling on rehearing. State v.
      Villarreal, _ S.W.3d _, No. PD-0306-14, 2014 WL 6734178, at *8-
      9, 11 (Tex. Crim. App. Nov. 26, 2014) (reh'g granted). The law
      surrounding Texas's implied-consent and mandatory-blood-draw
      statutes has been unsettled since before appellant's trial.


Wolfenberger v. State, No. 03-13-00494-CR (Tex. App.—Austin, delivered

October 23, 2015), at 7.

      Interestingly, this Court acknowledges the Supreme Court's clear holding

"that blood-alcohol dissipation is not a per se exigency justifying warrantless,

nonconsensual blood draws" in Missouri v. McNeely, 133 S. Ct. 1552 (2013),

which would have triggered counsel's duty to object or move to suppress the
evidence on that basis. The Court then essentially states that it is up to the Court of

Criminal Appeals to interpret the Supreme Court's holdings and until the Court of

Criminal Appeals does so, the Supreme Court's holdings are not binding on

counsel.

         In its opinion, this Court cites two cases for the proposition that counsel's

performance cannot be held to be deficient where an area of law is unsettled. See

State v. Bennett, 415 S.W.3d 867 (Tex. Crim. App. 2013) and Bernal v. State, No.

02-13-00381-CR, 2014 WL 5089182 (Tex. App.—Fort Worth Oct. 9, 2014, no

pet.).

         In the first of those cases, the area of unsettled law was that of a State statute

and its meaning as interpreted by several conflicting opinions by the Court of

Criminal Appeals. See State v. Bennett, 415 S.W.3d at 868-869. The Bennett

opinion in no way contemplated United States Supreme Court precedent. See Id.

         In the second, unpublished case with no precedential value, the Fort Worth

Court of Appeals held that counsel was not ineffective for failing to suppress

results of a warrantless, nonconsensual blood draw under McNeely because

"McNeely did not address directly the effect of mandatory-blood-draw or implied-

consent statues on the warrant requirement," and "the import of McNeely on

Texas's mandatory-blood-draw and implied-consent statutes was unsettled at the
time of [appellant's] trial..." See Bernal, No. 02-13-00381-CR, slip. op. at 10-12.

       However, those statements are incorrect. In fact, in its opinion in the

McNeely case, the United States Supreme Court directly addressed the various

implied consent laws adopted by the fifty states and noted that a driver who has

impliedly consented to blood alcohol testing as a condition of operating a motor

vehicle on public roads can withdraw that consent if asked to give a blood or

breath sample. Missouri v. McNeely, 133 S.Ct. 1522 (2013). The Court stressed

that "wide-spread state restrictions on nonconsensual blood testing provide further

support for our recognition that compelled blood draws implicate a significant

privacy interest." Id.

      It is well-settled that United States Supreme Court precedent controls and

when the United States Supreme Court requires a warrant in a blood draw case,

counsel should have a duty to object to blood evidence obtained without a warrant.

To fail to do so is deficient performance, especially in a case where the evidence

indicates Appellant was almost four times the legal level for intoxication and there

is a dispute as to whether he was intoxicated at the time the alleged offense was

committed. Because this Court held to the contrary, and for the foregoing reasons

reconsideration should be granted.
                                      PRAYER

        WHEREFORE, PREMISES CONSIDERED, Appellant respectfully

requests that this Court grant reconsideration in this case.

                                               Respectfully submitted,

                                                     /s/ Kristen Jernigan


                                               KRISTEN JERNIGAN
                                               State Bar Number 90001898
                                               207 S. Austin Ave.
                                               Georgetown, Texas
                                               (512)904-0123
                                               (512) 931-3650 (fax)
                                               Kristen@txcr i mapp. com


                          CERTIFICATE OF SERVICE

        This is to certify that a true and correct copy of the foregoing Appellant's

Motion for Reconsideration En Banc was mailed to Bob Odom at the Bell County

District Attorney's Office, 1200 Huey Road, Belton, Texas 76513, on October 27,

2015.


                                               /s/ Kristen Jernigan

                                             Kristen Jernigan
                    CERTIFICATE OF WORD COUNT

     The undersigned hereby certifies that the foregoing document consists of

1,327 words in compliance with Texas Rule of Appellate Procedure 9.4.



                                            /s/ Kristen Jernigan
                                    Kristen Jernigan
