                                                                      ACCEPTED
                                                                 03-14-00602-CR
                                                                        4397556
                                                       THIRD COURT OF APPEALS
                                                                  AUSTIN, TEXAS
                                                            3/6/2015 11:15:53 AM
                                                                JEFFREY D. KYLE
                                                                          CLERK


          No. 03-14-00602-CR
                                                 FILED IN
                                          3rd COURT OF APPEALS
                   In the                     AUSTIN, TEXAS
              Court of Appeals            3/6/2015 11:15:53 AM
               Third District               JEFFREY D. KYLE
               Austin, Texas                      Clerk


           The State of Texas,
                Appellant

                     v.

        Anthony James Sanchez,
               Appellee

Appeal from the 167th Judicial District Court
           Travis County, Texas
    Cause Number D-1-DC-13-200502

        STATE’S REPLY BRIEF


                    Rosemary Lehmberg
                    District Attorney
                    Travis County

                    Angie Creasy
                    Assistant District Attorney
                    State Bar No. 24043613
                    P.O. Box 1748
                    Austin, Texas 78767
                    (512) 854-9400
                    Fax (512) 854-4810
                    Angie.Creasy@traviscountytx.gov
                    AppellateTCDA@traviscountytx.gov
                                     Table of Contents

Index of Authorities............................................................................. ii
Points One and Two..............................................................................1
Point Three .......................................................................................... 2
Point Four...........................................................................................10
Prayer ................................................................................................. 11
Certificate of Compliance and Service................................................12




                                                       i
                                   Index of Authorities

     Cases
Aliff v. State, 627 S.W.2d 166 (Tex. Crim. App. 1982) ........................ 3
Anderson v. State, 2010 Tex. App. LEXIS 7043 (Tex. App.–Austin
  2010, pet. ref'd) (mem. op., not designated for publication) ........... 6
Aviles v. State, 385 S.W.3d 110 (Tex. App.—San Antonio 2012, pet
  ref’d), ................................................................................................ 7
Blumenstetter v. State, 135 S.W.3d 234 (Tex. App.–Texarkana 2004,
  no pet.) ............................................................................................. 5
Burkhalter v. State, 642 S.W.2d 231, 233 (Tex. App.—Houston [14th
  Dist.] 1982, no pet.) .......................................................................... 3
Dominguez v. State, 1999 Tex. App. LEXIS 5972 (Tex. App.–Corpus
  Christi 1999, pet. ref’d)..................................................................... 4
Gattis v. State, 2004 Tex. App. LEXIS 9284 (Tex. App.–Houston [14th
  Dist.] 2004, no pet.) (not designated for publication) ..................... 5
Griffith v. Kentucky, 479 U.S. 314 (1987)............................................ 9
Hayes v. State, 634 S.W.2d 359 (Tex. App.—Amarillo 1982, no pet.) 3
Pesina v. State, 676 S.W.2d 122 (Tex. Crim. App. 1984)..................... 3
Porter v. State, 2005 Tex. App. LEXIS 10261 (Tex. App.–Fort Worth
  2005, no pet.) (mem. op., not designated for publication) .............. 6
Rubio v. State, 1999 Tex. App. LEXIS 5968 (Tex. App.–Corpus
  Christi 1999, pet. ref’d) (not designated for publication)................. 5
Skinner v. State, 2006 Tex. App. LEXIS 4448 (Tex. App.–Tyler 2006,
  pet. ref’d) (mem. op., not designated for publication) ..................... 6
State v. Laird, 38 S.W.3d 707 (Tex. App.–Austin 2000, pet. ref’d).... 5
State v. Villarreal, No. PD-0306-14, 2014 Tex. Crim. App. LEXIS
  1898 (Tex. Crim. App. Nov. 26, 2014)...............................................1
Stidman v. State, 981 S.W.2d 227 (Tex. App.–Houston [1st Dist.]
  1998, no pet.).................................................................................... 4
Stovall v. State, 440 S.W.3d 661 (Tex. App.–Austin 2011, no pet.) .... 7
United States v. Levy, 416 F.3d 1273 (11th Cir. 2005) ........................ 8
Weaver v. State, 721 S.W.2d 495 (Tex. App.—Houston [1st Dist.]
  1986, pet. ref’d)................................................................................. 4
     Statutes
Tex. Code Crim. Proc. art. 38.23 ......................................................... 9


                                                       ii
                       No. 03-14-00602-CR

                                In the
                           Court of Appeals
                            Third District
                            Austin, Texas

                        The State of Texas,
                             Appellant

                                  v.

                    Anthony James Sanchez,
                           Appellee

            Appeal from the 167th Judicial District Court
                       Travis County, Texas
                Cause Number D-1-DC-13-200502

                     STATE’S REPLY BRIEF


To the Honorable Third Court of Appeals:

   Now comes the State of Texas and files this reply brief.


                       Points One and Two

   In its original brief, the State informed this court about an adverse

opinion from the Court of Criminal Appeals, which directly

contradicts the arguments made by the State in Points One and Two.

See State v. Villarreal, No. PD-0306-14, 2014 Tex. Crim. App. LEXIS

1898 (Tex. Crim. App. Nov. 26, 2014).

                                       1
   A motion for rehearing was granted in Villarreal on February 25,

2015. See id., 2015 Tex. Crim. App. LEXIS 201. It is possible that the

court will issue a different decision upon rehearing, especially since

the court was narrowly split 5-4, and three of the judges who joined

the majority opinion have recently left the court.

   But regardless of the outcome of Villarreal, the evidence is still

admissible because the federal and Texas exclusionary rules do not

apply, as argued in State’s Points Three and Four.


                             Point Three

   In Point Three, the State argued that the Texas exclusionary rule

does not apply because the police did not obtain the evidence in

violation of the Fourth Amendment because, at the time of the blood

draw, Texas case law clearly held that alcohol dissipation alone

constituted exigent circumstances in DWI cases.

   The defendant counters that Texas precedent did not hold that

these warrantless blood draws were constitutional. He then factually

distinguishes the two cases that the State cited for this proposition

(Aliff and Laird).




                                     2
   The State cited only two cases for brevity’s sake. The State now

cites to the following list of cases to show that Texas precedent did

hold that warrantless, nonconsensual blood draws were constitutional

because alcohol dissipation alone constituted exigent circumstances:

    Aliff v. State, 627 S.W.2d 166, 170 (Tex. Crim. App. 1982) held

      that the exigency of rapidly dissipating alcohol justified a

      warrantless blood draw. Any factual distinction made by the

      defendant is irrelevant to this holding.

    Pesina v. State, 676 S.W.2d 122 (Tex. Crim. App. 1984) is an en

      banc decision that focused on probable cause and not exigent

      circumstances, but it quoted Aliff extensively, including the

      holding that the exigency of rapidly dissipating alcohol justifies

      a nonconsensual warrantless blood draw. Id. at 126. Pesina also

      quoted Hayes and Burkhalter:

    Hayes v. State, 634 S.W.2d 359, 362 (Tex. App.—Amarillo

      1982, no pet.) explained that Aliff permitted a warrantless

      search because of the exigency of rapidly dissipating alcohol.

    Burkhalter v. State, 642 S.W.2d 231, 233 (Tex. App.—Houston

      [14th Dist.] 1982, no pet.) explained that Aliff held that the



                                     3
  exigency of rapidly dissipating alcohol justified the obtaining of

  a blood sample without the donor's consent and the obtaining

  of a blood sample under those circumstances without warrant

  or consent is not violative of the state and federal constitutions.

 Weaver v. State, 721 S.W.2d 495, 497 (Tex. App.—Houston [1st

  Dist.] 1986, pet. ref’d) stated that Aliff held that a warrantless

  blood draw did not violate the Constitution due to the rapid rate

  at which alcohol diminishes in the blood.

 Stidman v. State, 981 S.W.2d 227, 229 (Tex. App.–Houston [1st

  Dist.] 1998, no pet.) stated that police may compel blood draws

  to preserve evidence of blood alcohol content.

 Dominguez v. State, 1999 Tex. App. LEXIS 5972, at *8 (Tex.

  App.–Corpus Christi 1999, pet. ref’d) (not designated for

  publication) stated that the human body's natural elimination

  of alcohol from the bloodstream creates an immediate need to

  draw a blood sample and leaves little time to secure a warrant

  from a magistrate, and it cites to Aliff and Schmerber in holding

  that there was no constitutional violation.




                                  4
 Rubio v. State, 1999 Tex. App. LEXIS 5968, at *9 (Tex. App.–

  Corpus Christi 1999, pet. ref’d) (not designated for publication)

  stated that the danger of the alcohol dissipating from

  appellant's   system    provided     the   exigent    circumstances

  necessary for the DPS to take his blood specimen without

  consent or warrant, and finding no constitutional violation.

 State v. Laird, 38 S.W.3d 707, 713 (Tex. App.–Austin 2000, pet.

  ref’d) stated that it is a well-settled fact that alcohol in the blood

  dissipates quickly constitutes exigent circumstances.

 Blumenstetter v. State, 135 S.W.3d 234, 243 (Tex. App.–

  Texarkana 2004, no pet.) stated that exigent circumstances

  exist because alcohol in blood is quickly consumed and the

  evidence may be lost forever.

 Gattis v. State, 2004 Tex. App. LEXIS 9284, at *12 (Tex. App.–

  Houston [14th Dist.] 2004, no pet.) (not designated for

  publication) stated that the fact that alcohol in the blood

  dissipates quickly constitutes exigent circumstances.

 Porter v. State, 2005 Tex. App. LEXIS 10261, at *8 (Tex. App.–

  Fort Worth 2005, no pet.) (mem. op., not designated for


                                   5
  publication) cited Aliff as holding that the taking of a blood

  sample from a person not under arrest does not violate the

  Fourth Amendment when officers have probable cause to

  arrest, exigent circumstances such as the rapid rate at which

  alcohol dissipates from the blood, and a reasonable method of

  extraction.

 Skinner v. State, 2006 Tex. App. LEXIS 4448, at *4-5 (Tex.

  App.–Tyler 2006, pet. ref’d) (mem. op., not designated for

  publication) cited Aliff for the holding that taking a blood

  sample from a person under arrest does not violate the Fourth

  Amendment when officers have probable cause to arrest

  because alcohol dissipates from the blood stream at a rapid

  rate.

 Anderson v. State, 2010 Tex. App. LEXIS 7043, at *9-10 (Tex.

  App.–Austin 2010, pet. ref'd) (mem. op., not designated for

  publication) cited Aliff as holding that, under the Texas

  Constitution, the warrantless taking of a blood sample is not an

  unreasonable search and seizure so long as probable cause to

  arrest exists, the method of extraction is reasonable, and there



                                6
      are exigent circumstances such as the consequences of a delay

      in taking the blood sample.

    Stovall v. State, 440 S.W.3d 661, 669 (Tex. App.–Austin 2011,

      no pet.) stated that the fact that alcohol dissipates quickly in the

      blood has been held to constitute exigent circumstances.

   Regardless of factual distinctions, these cases make clear that

Texas precedent held that warrantless, nonconsensual blood draws

were constitutional because alcohol dissipation alone constituted

exigent circumstances. McNeely changed the law, of course, but the

fact remains that the police did not obtain the evidence in violation of

the Fourth Amendment based on the law in effect at the time of the

blood draw.

   The defendant also argues that ruling in the State’s favor would be

contrary to obvious Supreme Court will, and he bases this assertion

on the fact that the Supreme Court remanded a Texas case, which

found these types of blood draws constitutional, for reconsideration

in light of McNeely. See Aviles v. State, 385 S.W.3d 110 (Tex. App.—

San Antonio 2012, pet ref’d), remand at 134 S. Ct. 902, 187 L.Ed.2d




                                      7
767 (2014). The defendant reads far too much into a generic remand.

As explained by the Eleventh Circuit,

        Whenever the Supreme Court decides an important
        issue of law, it routinely takes every case in which the
        court of appeals decision came out before the new
        decision was announced and in which the certiorari
        petitioner claims that new decision might apply, and
        treats all of those cases the same. The uniform
        treatment given all such cases is to vacate the court of
        appeals judgment and remand the case for further
        consideration in light of the new decision. Those
        boilerplate orders come out in bushel baskets full.
        There is no implication in the standard language of
        those orders that the court of appeals is to do anything
        except reconsider the case now that there is a new
        Supreme Court decision that may, or may not, affect
        the result. We have never felt constrained to read
        anything into such routine remands other than the
        direction that we take another look at the case because
        of the new decision.

United States v. Levy, 416 F.3d 1273, 1280 (11th Cir. 2005).

   The defendant also argues that ruling in the State’s favor would go

against the trend of appellate decisions in Texas. But these courts

have not addressed the State’s argument in Point Three, which is that

the Texas exclusionary rule does not apply because the police did not

obtain the evidence in violation of the Fourth Amendment. Some of

these courts have addressed (and rejected) arguments for a good faith

exception to the Texas exclusionary rule, but the State is not arguing


                                     8
for a good faith exception here. Rather, the State is arguing that the

exclusionary rule does not apply at all because the police did not

obtain the evidence in violation of the Fourth Amendment.

   Finally, the defendant argues that the holding in McNeely should

be applied retroactively, citing Griffith v. Kentucky, 479 U.S. 314, 328

(1987) (holding that a new rule for the conduct of criminal

prosecutions is to be applied retroactively to all pending cases).

   But the defendant acknowledges that this does not mean that the

exclusionary rule applies as well. Indeed, the Supreme Court has held

that the federal exclusionary rule often does not apply, under several

good faith exceptions.

   It is now up to Texas courts to decide whether the Texas

exclusionary rule applies when the law changes after evidence is

obtained. This will turn on how the courts interpret the language in

the Texas exclusionary rule, codified in Tex. Code Crim. Proc. art.

38.23. Again, the State’s argument is that the Texas exclusionary rule

does not apply when the law changes after evidence has been

obtained because, in such a situation, the evidence was not actually

obtained in violation of the law.



                                     9
                             Point Four

   In Point Four, the State argued that the federal exclusionary rule

does not bar admission of the evidence under a couple of good faith

exceptions. The evidence is admissible if the court finds that either

one applies.

   The defendant counters that the good faith exception for reliance

on a statute does not apply because the Transportation Code does not

require that the police draw blood without a warrant. The State

disagrees. The Transportation Code does mandate warrantless blood

draws, as argued on page 6 of the State’s original brief. The defendant

also argues that the police should have known that these warrantless

blood draws were unconstitutional. The State disagrees. The

precedent in Texas clearly approved of these warrantless,

nonconsensual blood draws, as previously argued.

   The defendant also argues that the good faith exception for

reliance on binding precedent does not apply because the State has

cited only dicta, not binding precedent. Again, the State disagrees.

The cases listed above clearly show that there was strong precedent in

Texas (before McNeely) that held that mandatory warrantless blood



                                    10
draws were constitutional because dissipation of alcohol alone was an

exigent circumstance.

   Finally, the defendant argues that there is no good faith exception

to the Texas exclusionary rule, but State’s Point Four actually

addresses the federal exclusionary rule, not the Texas rule. The State

addressed the Texas exclusionary rule in Point Three, and it did not

argue for a good faith exception to the Texas exclusionary rule.

Rather, the State argued that the Texas exclusionary rule does not

apply at all because the officer did not obtain the evidence in violation

of the Fourth Amendment at the time of the blood draw.


                                Prayer

   The State asks this Court to sustain its points of error, reverse the

trial court’s order suppressing the results of the blood analysis, and

remand this case to the trial court for further proceedings.



                              Respectfully submitted,

                                  Rosemary Lehmberg
                                  District Attorney
                                  Travis County




                                     11
                                  Angie Creasy
                                  Assistant District Attorney
                                  State Bar No. 24043613
                                  P.O. Box 1748
                                  Austin, Texas 78767
                                  (512) 854-9400
                                  Fax (512) 854-4810
                                  Angie.Creasy@traviscountytx.gov
                                  AppellateTCDA@traviscountytx.gov


             Certificate of Compliance and Service
   I hereby certify that this brief contains 1,907 words. I further

certify that, on the 6th day of March, 2015, a true and correct copy of

this brief was served, by U.S. mail, electronic mail, facsimile, or

electronically through the electronic filing manager, to the Appellee’s

attorneys, Fernando Cortes, Attorney at Law, 100 N. Santa Rosa,

#824, San Antonio, Texas 78207; and Rocio Ramirez, Attorney at

Law, 1603 Babcock Road, Suite 159, San Antonio, Texas 78229.




                                  Angie Creasy


                                     12
