                                                                       ACCEPTED
                                                                   03-14-00651-CR
                                                                           5498231
                                                        THIRD COURT OF APPEALS
                                                                   AUSTIN, TEXAS
                                                               6/1/2015 4:36:26 PM
                                                                 JEFFREY D. KYLE
                                                                            CLERK
         No~   .03-14-00651-CR ..

                                                   FILED IN
                                            3rd COURT OF APPEALS
                                                AUSTIN, TEXAS
    In the Third Court of Appeals
                                            6/1/2015 4:36:26 PM
            Austin, Texas                     JEFFREY D. KYLE
                                                    Clerk




         STATE OF TEXAS,
                         Appellant,
                    v.

    GERARDO JERRY AYALA,
                         Appellee



 On appeal from the 167th District Court,
          Travis County, Texas
   Trial Cause No. D1 DC-13-200850




GERARDO JERRY AYALA'S BRIEF



                  JAMIE SPENCER
                 ATTORNEY FOR GERARDO JERRY AYALA
                 State Bar Number 90001952
                 812 San Antonio St., Suite 403
                 Austin, Texas 78701
                 Telephone: (512) 472-9909
                 Jamie@austindefense.com

ORAL ARGUMENT IS REQUESTED
               IDENTITY OF PARTIES AND ATTORNEYS

1. Appellee:

Gerardo Jerry Ayala

2. Appellee's Trial Attorney:

Christina Tagle
State Bar No. 24056132
812 San Antonio Street, Suite 100
Austin, TX 78701
(512) 270-3314

3. Appellee's Appellate Attorney:

Jamie Spencer
State Bar No. 90001952
812 San Antonio Street, Suite 403
Austin, TX 78701
(512) 472-9909
(51.2) 472-9908 (fax)

4. State's Trial Attorney:

Ms. Aurora Perez
State Bar No. 24053706
509 W. 11th Street, Ste. 1.100
Austin, TX 78701
(512) 854-9195
(512) 854-9695 (fax)

5. State's Appellate Attorney:

Ms. Angie Creasy
State Bar No. 24043613
509 W. 11th Street, Ste. 1.1 00
Austin, TX 78701
(512) 854-9400
(512) 854-9695 (fax)


                                    1
--~----------.--                                     -~-·--------




             STATEMENT REGARDING ORAL ARGUMENT ...


       Oral Argument is Requested




                                    2
                                TABLE OF CONTENTS



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

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

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

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

SUMMARY OF GERARDO JERRY AYALA'S
ARGUMENT ..................................................................................6

ARGUMENT ................................................................................. ?

PRAY.ER .................................................................................... 15

CERTIFICATE OF COMPLIANCE .................................................... 16

CERTIFICATE OF SERVICE .......................................................... 16




                                              3
                                 INDEX OF AUTHORITIES

   Constitutional Provisions and Statutes:
   Fourth Amendment of the US Constitution ...................................... 9, 12

   Tex. Transportation Code Ann Chapter 724 .............................. 6, 7, 12

   Tex. Code Grim. Proc. Art. 38.23 ................................................ 9, 10

···Cases
   State v. Villarreal, 2014 WL 6734178
         (Tex. Grim. App. 2014) ........................................... 6, 7, 8, 11, 13

   Balentine v. State, 71 S.W.3d 763, 768
        (Tex. Grim. App. 2002) ............................................................ 7

   Carmouche v. State, 10 S.W.3d 323, 327
       (Tex. Grim. App . .2000) ............................................................. 7

   Missouri v McNeely, 133 S. Ct. 1552 (2013) .............................. 8, 11, 13

   United States v. Robinson, 414 U.S. 218,224 (1973) ..................... 11, 13

   State v. Johnson, 871 S.W.2d. 744 (Tex. Grim. App. 1994) ............ .... : .. .9

   Wehrenberg v. State, 416 S.W.3d 458 ...................................................... 10




                                                 4
                                 No. 03-14-00651-CR



                        In the Third Court of Appeals
                                Austin, Texas




                             STATE OF TEXAS,
                                            Appellant,
                                       v.
                         GERARDO JERRY AYALA,
                                            Appellee



                     On appeal from the 16ih District Court,
                              Travis County, Texas
                       Trial Cause No. 01 DC-13-200850




                    GERARDO JERRY AYALA'S BRIEF




To the Honorable Third Court of Appeals:

     Now comes Gerardo Jerry Ayala, Appellee, and files this brief in

response to that of appellant.




                                       5
        SUMMARY OF GERARDO JERRY AYALA's ARGUMENT



Point One: The State argues that the evidence is admissible because the

blood draw was mandated by Tex. Transp. Code Section 724.011(b), and

that the statute is constitutionally reasonable under the Fourth Amendment.

However, the State also concedes Appellee's major response which is that

the Texas Court of Criminal Appeals recently held that a warrantless blood

draw, even when conducted pursuant to the so called mandatory blood

draw statute violates the Fourth Amendment because it did not fall under

any recognized exception to the warrant requirement. State v. Villarreal,

No. PD-0306-14, .2014 Tex. Grim. App. Lexis 1898 (Tex. Grim. App., Nov.

26, 2014).



Point Two: The State also concedes that Villarreal controls as recent

precedent on their second point, which is similar to and related to point

number one, and Appellee agrees.



Point Three: Appellee argues that because the blood draw itself was

unconstitutional, that the Texas exclusionary rule does apply, and that the

evidence should have been excluded.


                                      6
Point Four: Appellee argues that the federal exclusionary rule does require

exclusion of the evidence in this case because the facts do not give rise to

the Federal good faith exception.



                                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).

      While the State concedes that Villarreal controls regarding their

Points One and Two, the State also makes arguments to preserve error, so

Appellee will briefly respond on those points.

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

case, which· might have provided an alternative basis for drawing

Appellee's blood without a warrant. There is ample evidence in the record

to support the trial court's finding of no exigent circumstances. Since the


                                      7
determination of "no exigent circumstances" is based on historical facts that

determination would be reviewed only under an abuse of discretion

standard.

      However, a de novo review would 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.

      The Villareal case is directly on point. Villarreal follows the Supreme

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

case lists in exhaustive detail all the possible state's arguments 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 Villarreal decisions show that suppression was correct in the

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


                                       8
which would create a valid exception to the warrant requirement, the-

motion to suppress should have been granted.



      In Point Three, the State claims that their "argument may appear·to

be a backdoor good faith argument" but that they are "not arguing for a

good faith exception to article 38.23". In fact, that is exactly what the

State's Point Number Three does indeed argue.

      Neither of the cases cited by the State in Point Three are applicable

in the Appellee's case. First the State cites State v. Johnson, 871 S.W.2d.

744 (Tex. Crim. App. 1994) for the proposition that there is no exclusion

when there is attenuation of taint. But that very same case says "the

attenuation doctrine is not an exception to Art. 38.23, but rather is a method

of determining whether evidence was 'obtained' in violation of the law, with

'obtained' being included in the plain language of the statute." State v.

Johnson, 871 S.W.2d. 744, 751 (Tex. Crim. App. 1994).

      So, instead of the State's interpretation that the evidence in the

instant case "was not actually 'obtained' in violation of the law," in fact the

case cited merely seeks to clarify how we know whether or not evidence

was obtained in the first place. It is quite specifically stated to not be an

exception to Article 38.23.


                                        9




                                                            .   ···---~-----··----~-~~
      Attenuation of taint is perhaps best analogized to a proximate cause

analysis. There was no finding by the trial court in the instant case about

attenuation of taint in this case, nor would such a finding be justified by the

evidence at pretrial. The evidence suppressed came solely from the

unlawful, non-consensual, warrantless blood draw and from no other

source. The blood draw was the only reason the suppressed evidence

exists. In other words, the blood draw was the sole cause of the

suppressed blood test results. And therefore attenuation of taint is logically

inapplicable.

      Nor does the State's citation of Wehrenberg v. State, 416 S.W.3d

458, help their cause either. The rule that there is no exclusion when there

is an independent source is also wholly inapplicable to the Appellee's case.

Again, this is not an exception to Article 38.23 but more importantly, what

independent source is the State suggesting the suppressed evidence came

from? Solely from the warrantless blood draw is the only legitimate answer

in this case.

      Therefore the State's Point number three is in fact a back door good

faith argument- which does not apply to the Texas exclusionary rule.




                                      10
      The State's final point raised is that the Federal exclusionary rule

does not bar admission of the evidence either- but, in fact, it does exactly

that. The State conflates what is meant by a change in the law, and how

that applies to the good faith rule with every single appellate decision that

ever decides any new issue- however slight that issue might be.

      The law that the police in this case were required to follow was that

they either needed a warrant, or an exception to the warrant requirement to

draw blood. It has long been established that a blood draw is indeed a

search, so, to perform a search, one oftwo things is required: a warrant, or

an exception. A warrantless search of a person is reasonable only if it falls

within a recognized exception. See eg., United States v. Robinson, 414

U.S. 218, 224 (1973).

     The fact that an officer mistakenly believes an exception exists when

it does not is not what is meant by good faith reliance. Neither the McNeely

nor Villarreal decisions in any way changed the basic rule about searches:

either a warrant or an exception to the warrant requirement is necessary or

else a search is unconstitutional. To decide otherwise would eviscerate all

rules based on what a well meaning officer's state of mind was at the time

he was conducting a search. In other words, what is meant by human




                                      11
good faith is different than what is meant by the legal concept of good faith

reliance.

      The constitutionality of Section 724.011 (b) had not yet been decided

at the time of Appellee's arrest. How could it be the case that an officer

was relying in good faith on an undecided issue? If a police department or

law enforcement agency chooses to set rules in place based on legal

concepts that have not fully been litigated they cannot cry out for a good

faith exception before those concepts or issues have been decided by the

ultimate authority on the law: the appellate court system.

      The only well settled legal issue in this case that they could

reasonably rely on is the long settled issue that ( 1) blood draws are

searches and (2) searches require (a) warrants or (b) recognized

exceptions to the warrant requirement. That rule has not changed.

      Legislatures cannot simply craft exceptions to the Fourth

Amendment. A police officer's knowing that a statute such as 724.011 (b)

exists and knowing that it has been upheld by the ultimate authority on the

subject are two different things.

      Again, the rule is: A warrantless search of a person is reasonable

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

Robinson, 414 U.S. 218, 224 (1973). This case is a prime example of an


                                      12
instance where there was not a recognized exception; appellee's emphasis

here is on recognized. The Supreme Court first spoke on this issue in

McNeely; if McNeely had found an exception, that exception would then be

recognized- but only after McNeely had been decided. (And, of course,

we now know that DWI does not provide a per se exigent circumstances

exception in every case.)

      Essentially the State is asking this Court to allow the policeman to

become the decider of whether or not 724.011 (b) fits the definition of

exigent circumstances. The courtrooms where McNeely and Villarreal

were argued were the proper forum where those issues were decided. So

it was a purely legal question that was not fully decided at the time of the

search of Appellee.· Good faith reliance would not apply in that sort of

situation.

      Therefore, since the Federal good faith rule does not apply, the

Federal exclusionary rule also bars admission of the evidence in this case

as well.




                                      13
                                  PRAYER

      Gerardo Ayala respectfully asks this Court to affirm the trial court's

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

results of the blood draw.



                                           Respectfully submitted,




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




                                      14
                                                                 -~-------··-·----·------···




                        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 2115 words.




                        CERTIFICATE OF SERVICE

      I certify that I sent a complete and legible copy of this Gerardo Jerry

Ayala's Brief via U.S. postage-prepaid mail, on or before June 1, 2015 to

the following attorneys of record:


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




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