                                                                                                             PD-1362-15
                                                                                           COURT OF CRIMINAL APPEALS
                                                                                                            AUSTIN, TEXAS
                                                                                           Transmitted 6/13/2016 8:26:41 AM
                                                                                             Accepted 6/13/2016 8:30:32 AM
Keri L. Miller                                                                                               ABEL ACOSTA
First Assistant County Attorney                  PAUL S. WATKINS                                                     CLERK
Eric L. Weborg Jr.                                  Gonzales County Attorney
Assistant County Attorney                             415 St. Louis Street
John Brumme                                        Gonzales, Texas 78629-4029
Investigator
                                               Phone (830) 672-6527 : Fax (830) 672-5868
Misty Miller
                                                Email: countyattorney@co.gonzales.tx.us
Victim/Witness Coordinator



                                                         June 13, 2016
          Mr. Abel Acosta
          Clerk, Court of Criminal Appeals
          Supreme Court Building
                                                                                           June 13, 2016
          201 West 14th Street, Room 106
          Austin, Texas 78701

                     Re:          The State of Texas v. Jose Ruiz
                                  PD-1362-15
                                  COA Cause No. 13-13-00507-CR
                                  Trial Court Case No. 34-13-B
                                  Set for submission on Oral Argument June 15, 2016
                                  Additional Citations

          Dear Mr. Acosta,

                     Prior to oral argument the State submits the following additional citations for

          the Court’s consideration in this cause:

          Issue One:

                     Breithaupt v. Abraham, 352 U.S. 432 (1957)(holding “the driver here was

          unconscious when the blood was taken, but the absence of conscious consent,

          without more, does not necessarily render the taking a violation of a constitutional

          right.” Reasoning in footnote number 2: “it might be a fair assumption that a

          driver on the highways, in obedience to a policy of the State, would consent to
have a blood test made as part of a sensible and civilized system protecting himself

as well as other citizens… from the hazards of the road due to drunken driving”).

      People v. Arredondo, No. S233582, 2016 Cal. LEXIS 3778 (Cal. June 8,

2016)(granting review on People v. Arredondo, 245 Cal. App. 4th 186 (Cal. Ct.

App. 2016), reviewing (along with other issues), whether law enforcement violated

the Fourth Amendment by taking a warrantless sample from a defendant while he

was unconscious or was the search and seizure valid because defendant was

“deemed to have given his consent” under California’s implied consent law).

      People v. Ascencio, No. D066806, 2015 Cal. App. Unpub LEXIS 6270 (Cal.

Ct. App. August 31, 2015, no pet.)(not designated for publication)(the California

Rules of Appellate Procedure prohibit courts and parties from citing or relying on

opinions not certified for publication or ordered published, however, this case from

the Fourth Appellate District of California holds that because the defendant did not

withdraw his statutory implied consent at the scene and subsequently, due to his

unresponsiveness, was incapable of withdrawing his consent, his blood was drawn

pursuant to his consent. This holding is in direct conflict with the Sixth Appellate

District California Appellate Court in People v. Arredondo, 245 Cal. App. 4th 186

(Cal. Ct. App. 2016, rev. granted)).

      Martini v. Commonwealth, No. 0392-15-4, 2016 Va. App. LEXIS 67 (Va.

Ct. App. March 8, 2016, no pet.)(not designated for publication)(holding that a
defendant who drives their vehicle on a highway in Virginia has given their

consent to a blood draw, and a driver’s incoherence or unconsciousness does not

constitute a refusal, because consent is continuing. (citing Goodman v.

Commonwealth, 37 Va. App. 374, 383 (Va. 2002))).

      Texas Transportation Code § 724.061 (a person’s refusal of a request by an

officer to submit to the taking of a specimen of breath or blood, whether the refusal

was express or the result of an intentional failure to give a specimen, may be

introduced into evidence at the person’s trial).

      Hardie v. State, 807 S.W.2d 319 (Tex. Crim. App. 1991)(holding that

“evidence of an accused invoking his or her right to counsel may indeed be

construed adversely to a defendant and may improperly be considered as inference

of guilt.” “Such an adverse use of evidence that a defendant invoked a right or

privilege which has been granted him, is constitutionally impermissible”).

      Powell v. State, 660 S.W.2d 842 (Tex. App.—El Paso 1983, no pet.)(holding

that it was error to admit evidence that defendant would not voluntarily permit the

officers to inspect a package containing narcotics. “The invocation of

constitutional rights such as assistance of counsel, silence, or freedom from

unreasonable searches may not be relied upon as evidence of guilt. To permit the

use of such evidence for purposes of incrimination would erode the protections

guaranteed by both state and federal constitutions”).
      Winn v. State, 871 S.W.2d 756 (Tex. App. Corpus Christi 1993, no

pet.)(finding that defendant’s trial counsel was ineffective for failing to object to

the officer’s testimony that defendant refused to consent to a search of his

residence because the use of such evidence would erode the protections guaranteed

by the federal and state constitutions to be free of unreasonable searches and

seizures).

      Reeves v. State, 969 S.W.2d 471 (Tex. App.—Waco 1998, pet.

ref’d)(allowing evidence of the defendant’s refusal to consent to a warrantless

search of his home was error because it would impose a penalty for exercising a

constitutional right).

Issue Two:

      Cole v. State, No. PD-0077-15, 2016 Tex. Crim. App. LEXIS 84 (Tex.

Crim. App. May 25, 2016) (in addition to the natural dissipation of alcohol,

circumstances relevant to an exigency analysis include: (1) the procedures in place

for obtaining a warrant; (2) the availability of a magistrate judge; and (3) the

practical problems of obtaining a warrant within a timeframe that still preserves the

opportunity to obtain reliable evidence).

      Weems v. State, No. PD-0635-14, 2016 Tex. Crim. App. LEXIS 85 (Tex.

Crim. App. May 25, 2016) (in addition to the natural dissipation of alcohol,

circumstances relevant to an exigency analysis include: (1) the procedures in place
for obtaining a warrant; (2) the availability of a magistrate judge; and (3) the

practical problems of obtaining a warrant within a timeframe that still preserves the

opportunity to obtain reliable evidence).

      The State requests that the foregoing authorities be brought to the attention

of the Court. Thank you for your immediate assistance with this matter.

                                       Respectfully submitted,



                                       /s/ Keri L. Miller______________
                                       Keri L. Miller
                                       First Assistant County Attorney
                                       Gonzales County, Texas
                                       kmiller@co.gonzales.tx.us
                                       State Bar No. 24051960

      CC: Mark Symms
             Attorney for Appellant
