                                                                       ACCEPTED
                                                                  03-14-00541-CR
                                                                         4106716
                                                        THIRD COURT OF APPEALS
                                                                   AUSTIN, TEXAS
                                                            2/11/2015 11:56:26 AM
                                                                JEFFREY D. KYLE
                                                                           CLERK
       No.   03~14-00541-CR



                                                  FILED IN
                                           3rd COURT OF APPEALS
   In the Third Court of Appeals                AUSTIN, TEXAS
           Austin, Texas                   2/11/2015 11:56:26 AM
                                               JEFFREY D. KYLE
                                                    Clerk




        ROBERT TORRES,
                        Appellant,
                   v.

        STATE OF TEXAS,
                        Appellee



On appeal from the 299th District Court,
         Travis County, Texas
  Trial Cause No. 01 DC-12-302414




    ROBERT TORRES' BRIEF




                JAMIE SPENCER
                ATTORNEY FOR ROBERTTORRES
                State Bar Number 90001952
                812 San Antonio St., Suite 403
                Austin, Texas 78701
                Telephone: (512) 472-9909
                Jamie@austindefense.com
             IDENTITY OF PARTIES AND ATTORNEYS.·

1. Appellant:

Robert Torres

2. Appellant's Trial and Appellate Attorney:

Jamie Spencer
State Bar No. 90001952
812 San Antonio Street, Suite 403
Austin, TX 78701
(512) 472-9909
(512)472-9908 (fax)

3. State's Trial and Appellate Attorney:

Ms. Amber Platt
State Bar No. 24046639
509 W. 11th Street, Ste. 1. 100
Austin, TX 78701
(512) 854-9400
(512) 854-9695 (fax)

4. State's Appellate Attorney

Ms. Lisa C. McMinn
State Bar No. 13803300
509 W. 11th Street, Ste. 1.100
Austin, TX 78701
(512) 854-9400
(512) 854-9695 (fax)




                                    1
               STATEMENT REGARDING ORAL ARGUMENT .


      This case is fully controlled by the Court of Criminal Appeals decision

in State v. Villareal, 2014 WL 6734178 (Tex. Grim. App. 2014), which had

not been decided at the time of the pretrial hearing. This case presents a

pure question of law and the Appellant asks that the case be remanded to

the 2991h District Court for reconsideration in light' of Villareal. Or in the

alternative, as there are no questions of fact, Appellant does not ask for

oral argument because the issue may be fully and fairly decided on briefs.




                                        2
                                TABLE OF CONTENTS



IDENTITY OF PARTIES AND ATTORNEYS ........................................ 1

STATEMENT REGARDING ORAL ARGUMENT .................................. 2

TABLE OF CONTENTS .................................................................. 3

INDEX OF AUTHORITIES ............................................................... 4

ISSUE PRESENTED ....................................................................... 7

STATEMENT OF THE CASE ........................................................... 5

       A. COURSE OF PROCEEDINGS AND
          DISPOSITION IN THE COURT BELOW
       B. GENERAL STATEMENT OF FACTS

SUMMARY OF ROBERT TORRES'S
ARGUMENT ..................................................................................8

ARGUMENT ................................................................................. 9

PRAYER .................................................................................... 11

CERTIFICATE OF COMPLIANCE .................................................... 12

CERTIFICATE OF SERVICE .......................................................... 12




                                              3
                             INDEX OF AUTHORITIES··

Constitutional Provisions and .Statutes:
Fourth Amendment of the US Constitution ........................................... 8

Tex. Transportation Code Ann Chapter 724 .............................. 6, 7, 8, 9

Cases
State v. Villareal, 2014 WL 6734178
      (Tex. Crim. App. 2014) .................................................... 2, 8, 10

Balentine v. State, 71 S.W.3d 763, 768
     (Tex. Crim. App. 2002) ............................................................ 9

Carmouche v. State, 10 S.W.3d 323, 327
    (Tex. Crim. App. 2000) .............................................................9

Missouri v McNeely, 133 S. Ct. 1552 (2013) ....................................... 10




                                            4
                        STATEMENT OF THE CASE



A. Course of Proceedings and Disposition in the Court Below

      Appellant was charged in a one count indictment with felony driving

while intoxicated, a third degree felony. Appellant filed a motion to

suppress. The trial court held an evidentiary hearing on the motion and

denied the motion. Appellant then entered into a negotiated plea bargain

agreement with the State and preserved his right to appeal.

B. General Statement of Facts

      This case involves a traffic stop where Appellant was arrested for

driving while intoxicated. After his arrest, he was taken to the Travis

County Jail, where an involuntary blood draw was performed. There are no

significant factual disputes in this case. After his arrest the Appellant was

read the statutory warning and asked to give a specimen of his breath or

blood, which he refused. (RR vol.4, pp. 17-18) A criminal history check

revealed that Appellant had two prior convictions for DWI. (RR vol. 4, p.

34) The arresting officer did not seek an application for a blood warrant in

this case. (RR vol. 4, p. 23) The arresting officer was very familiar with the

procedures for procuring a blood draw warrant in a DWI case. (RR vol. 4,

p. 27) The officer testified that he obtained the involuntary blood draw



                                      5
solely under the authority of the Transportation Code, Section 724; · (RR

vol. 4, pp 34-35)




                                      6
                          ISSUE PRESENTED ·

Issue One: Whether the Trial Court erred in refusing to grant the motion to

suppress and in holding that the mandatory blood draw provisions of the

Texas Transportation Code are a constitutionally valid alternative to the

warrant requirement.




                                     7
            SUMMARY OF ROBERT TORRES'S ARGUMENT

      At the time of the suppression hearing the trial court did not have the

benefit of the ruling in State v. Villareal, 2014 WL 6734178 (Tex. Grim.

App. 2014). In Villareal, the court held that the warrantless and

non consensual mandatory blood draw provisions of Texas Transportation

Code chapter 724 do not meet any exception to the Fourth Amendment's

warrant requirement. Since there was a finding of no exigent

circumstances in the instant case, and no other exceptions to the warrant

requirement would apply, the motion to suppress should have been

granted.




                                     8
                                 ARGUMENT

      A trial court's ruling on a motion to suppress is reviewed under an

abuse of discretion standard; absent an abuse of discretion, the trial court's

findings will not be disturbed. Balentine v. State, 71 S.W.3d 763, 768 (Tex.

Crim. App. 2002). Almost total deference is given to the trial court's

determination of historical facts, while a de novo review is conducted of the,

trial court's application of the law to those facts. See Carmouche v. State,

10 S.W.3d 323, 327 (Tex. Crim. App. 2000).

      The trial court ruled that there were no exigent circumstances in this

case, which might have provided an alternative basis for drawing

Appellant's blood without a warrant. (RR Vol. 3, p. 11) There is ample

evidence in the record to support the trial court's finding of no exigent

circumstances. Since the determination of "no exigent circumstances" is

based on historical facts that would be reviewed only under an abuse of

discretion standard.

      However, a de novo review should be conducted of the trial court's

application of the law regarding the mandatory blood draw provisions of

Texas Transportation Code Chapter 724 and the fact that there were no

exigent circumstances.


                                       9
      The Villareal case is directly on point (although -again- it was not

available to the trial court at the time of the ruling). Villarreal follows the

Supreme Court's ruling in Missouri v McNeely, 133 S. Ct. 1552 (2013).

The Villareal case lists in exhaustive detail all the possible state's

argument's for allowing a Chapter 724 exception to the warrant

requirement, and rejects each of them in turn:

      (1 )The blood draw was not valid under the consent exception.

      (2) It was not valid under the automobile exception.

     (3) It was not valid under a special needs exception.

     (4) It was not valid as a search incident to arrest.

     (5) It was not reasonable under a Fourth Amendment balancing test.

     Given the trial court's finding of "no exigent circumstances", the

McNeely and Villareal decisions show that suppression was correct in the

instant case. Absent exigent circumstances, and absent any other finding

which would create a valid exception to the warrant requirement, the

motion to suppress should have been granted.




                                       10
                                    PRAYER

        Robert Torres asks this Court to overturn the trial court's denial of the

Motion To Suppress as it relates to the blood draw and the results of the

blood draw, and to grant the defense Motion to Suppress as it relates to

such.



                                             Respectfully submitted,




                                               ate
                                             8     an Antonio Street, Suite 403
                                             Austin, Texas 78701
                                             Telephone: (512) 472-9909
                                             jamie@austindefense.com




                                        11
                        CERTIFICATE OF COMPLIANCE

            Relying on Microsoft Word's word-count function, I certify that

this document complies with the word-count limitations of Tex. R. App. P.

9.4. The document contains 1272 words.




                        CERTIFICATE OF SERVICE

      I certify that I sent a complete and legible copy of this Robert Torres's

Brief via U.S. postage-prepaid mail, on or before February 11, 2015 to the

following attorneys of record:


Travis County District Attorney's Office
Rosemary Lehmberg, Travis County District Attorney
Lisa McMinn, Assistant District Attorney
509 W. 11th Street, Ste. 1.100
Austin, TX 78701




                                      12
