                                                                                       ACCEPTED
                                                                 04-13-00338-CR & 04-13-00339-CR
                                                                     FOURTH COURT OF APPEALS
                                                                           SAN ANTONIO, TEXAS
                                                                              1/9/2015 5:55:09 PM
                                                                                    KEITH HOTTLE
                                                                                           CLERK

                    CAUSE NOS. 04-13-00339-CR

          IN THE FOURTH COURT OF APPEALS OF TEXAS
                                                FILED IN
                                                   4th COURT OF APPEALS
                                                    SAN ANTONIO, TEXAS
__________________________________________________________________
                                                   1/9/2015 5:55:09 PM
                                                     KEITH E. HOTTLE
    APPEAL OF A JUDGMENT IN TRIAL CAUSE NOS. 11-CRS-272    Clerk


  FROM THE 229TH DISTRICT COURT OF STARR COUNTY, TEXAS
            PRESIDING JUDGE HON. ANA LISA GARZA
__________________________________________________________________

               ELIAS ESEQUIEL VASQUEZ, Appellant

                                 VS.

                  THE STATE OF TEXAS, Appellee

__________________________________________________________________

             APPELLANT’S MOTION FOR REHEARING

_________________________________________________________________

                                       Respectfully submitted,

                                       Victoria Guerra
                                       320 w. Pecan Blvd.
                                       McAllen, Texas 78501
                                       (956) 618-2609
                                       (956) 618-2553 (fax)
                                       State Bar Number: 08578900
                                       Appellant’s Attorney
MAY IT PLEASE THE COURT:

      COMES NOW Elias Esequiel Vasquez, appellant in the above cause, and

files this motion for rehearing and would show this Court the following:

      There exists a fundamental error in this Court’s opinion that skews this

Court’s analysis and result. Specifically, this Court’s opinion was based not on the

purported lack of standing of Mr. Vasquez to complain of a violation of his

expectation of privacy when the police stole, in violation of the Fourth Amendment

to the United States Constitution, the EDR from the GMC Canyon which Mr.

Vasquez was driving.

      Utilizing McDuff v. State, 939 S.W.2d 607, 616 (Tex. Crim. App. 1997), this

Court held that Mr. Vasquez voluntarily discarded, left behind, or otherwise

relinquished his interest in property so that he could no longer retain a reasonable

expectation of privacy with regard to it at the time of the search. No evidence

exists to support this theory that appeared for the first time in the State’s brief and

was not raised at the trial court by the State.

      Abandonment of property occurs only “if the defendant intended to abandon

the property and his decision to abandon it was not due to police misconduct.”

McDuff, 939 S.W.2d at 616.

      In Miller v. State, 335 S.W.3d 847 (Tex. App.—Austin 2011, no pet.) the

court drew a distinction between voluntary and involuntary abandonment. In that


                                            2
case, the defendant, a police officer accidentally left a personal thumb drive which

contained child pornography and police activity reports in a patrol-room computer.

The court noted in footnote 4 that abandonment of property occurs only if the

defendant intended to abandon the property and his decision to abandon it was not

due to police misconduct (citing McDuff, 939 S.W.2d at 616) and it was

undisputed that the defendant’s abandonment of his thumb drive was unintentional.

See Miller, 335 S.W.3d at 858.

      In Matthews v. State, 431 S.W.3d 596 (Tex. Crim. App. 2014), the Court of

Criminal Appeals held that the defendant had abandoned the borrowed vehicle

when he took off running after the police conducted a stop.

      Even the United States Supreme Court has addressed the abandonment issue.

In Abel v. United States, 362 U.S. 217 (U.S. 1960), the defendant who was illegally

present in the United States, and who was under suspicion of espionage by the FBI,

was arrested in a hotel room. During the search of the hotel room, a forged birth

certificate was found in the trash can of the hotel room. The Court held that it was

lawful to seize items thrown away in the wastepaper basket where the defendant

had abandoned the articles contained in the basket by throwing them away.

      None of those situations exist here which establish intentional abandonment

of the vehicle. Mr. Vasquez was lying on the ground at the time of the collision.

14R31, 78. Mr. Vasquez was nonresponsive at the collision scene. 14R32, 78.


                                         3
District Attorney investigator Trinidad Lopez called for medical assistance.

14R31.

      Meanwhile, the State maintained control over the vehicle. On or about

January 3, 2012, a subpoena was issued to obtain the EDR from Rey’s Auto Parts.

CR291; 10R13–14.       Although investigator Homer Flores initially obtained the

EDR from the wrong vehcile pursuant to a grand jury subpoena, he later obtained

the correct EDR without a warrant. 10R14. No evidence exists that Mr. Vasquez

intentionally abandoned said vehicle. Even if he wanted to obtain return of the

vehicle, he could not have because it was still in the State’s custody, as the State

needed it to obtain evidence as on January 3, 2012 and thereafter. Id.

      It should also be strongly noted that the abandonment issue was not raised in

the trial court and Mr. Vasquez nor the trial court had no opportunity to address

said abandonment issue at said time.

      As such, no evidence exists that Mr. Vasquez intentionally abandoned the

vehicle at issue.

      WHEREFORE, Mr. Vasquez prays that this Court grant Mr. Vasquez’s

motion for rehearing; set aside it’s prior judgment or opinion, set aside the

judgment of the trial court, remand this case to the district court for further

proceedings, and grant such other relief to which Mr. Vasquez is justly entitled.




                                         4
                                      Respectfully submitted,

                                      Law Office of Victoria Guerra
                                      320 W. Pecan Blvd.
                                      McAllen, Texas 78501
                                      (956) 618-2609
                                      (956) 618-2553 (facsimile)

                                By:   /s/ Victoria Guerra
                                      Victoria Guerra
                                      State Bar Number: 0857900
                                      Appellate Attorney for Appellant

                         CERTIFICATE OF SERVICE

       On this 9th day January, 2015, the undersigned delivered a copy of the

foregoing Appellant’s brief to Appellee’s Counsel jaolson_ccda@yahoo.com or his

facsimile: 210-858-6780.

                                      /s/ Victoria Guerra
                                      Victoria Guerra, Attorney for Appellant



                    CERTIFICATION OF COMPLIANCE

       In compliance with TRAP 9.4(i)(3), the undersigned certifies that the

number of words in this brief, excluding those matters listed in Rule 9.4(i) (l), is

699.


                                      /s/ Victoria Guerra
                                      Victoria Guerra




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