                                                                               PD-0712-15
                                                              COURT OF CRIMINAL APPEALS
                                                                              AUSTIN, TEXAS
                                                              Transmitted 7/8/2015 1:19:53 PM
                                                                Accepted 7/9/2015 4:28:04 PM
                                                                               ABEL ACOSTA
                                                                                       CLERK
                               NO. PD-0712-15


               IN THE COURT OF CRIMINAL APPEALS

                                 OF TEXAS

                   DYLAN JEZREEL GARCIA, Appellant

                                    VS.

                       THE STATE OF TEXAS, Appellee



                On Petition for Discretionary Review from
                       The Fourteenth Court of Appeals
                       in No. 14-14-00387-CR Affirming
                   The 300th Criminal District Court of
               Brazoria County, Texas, Cause No. 68303,
           Honorable K. Randall Hufstetler, Judge Presiding



     APPELLANT'S PETITION FOR DISCRETIONARY REVIEW


                                          Crespin Michael Linton
                                          440 Louisiana, Suite 900
        July 9, 2015                      Houston, Texas 77002
                                          Texas Bar No. 12392850
                                          (713) 236-1319
                                          (713) 236-1242 (FAX)
                                          crespin@hal-pc.org
                                          Counsel for Appellant
Oral Argument Waived
                               INDEX
                                               PAGE

Index                                               2

Names of All Parties                                3

List of Authorities                                 4

Statement Regarding Oral Argument                   5

Statement of the Case                               5

Procedural History                                  5

GROUND FOR REVIEW                                   6

        THE COURT OF APPEALS ERRED IN DETERMINING
        THAT EXIGENT CIRCUMSTANCES JUSTIFIED THE
        WARRANTLESS SEIZURE OF APPELLANT’S BLOOD

Reason for Review                                   6

Statement of Facts                                  7

Arguments and Authorities                           8

Prayer for Relief                                   12

Certificate of Compliance                           12

Certificate of Service                              12

Appendix A                                          13
    Opinion, Garcia v. State


                                    2
                           NAMES OF ALL PARTIES


Pursuant to Tex. R. App. P. 38.1(a), the following are interested parties:

Presiding Judge:                    K. Randall Hufstetler Brown
                                    300th Criminal District Court
                                    111 E. Locust, 4th Floor
                                    Angleton, Texas 77515

Appellant:                          Mr. Dylan Jezreel Garcia
                                    Texas Department of Criminal Justice
                                    TDCJID# 01926397
                                    Hamilton Unit
                                    200 Lee Morrison Lane
                                    Bryan, Texas 77807

Attorneys for State:                Mr. Trey Picard
                                    Brazoria County District Attorney's
                                    Office
                                    111 E. Locust, 4th Floor
                                    Angleton, Texas 77515

Attorneys for Appellant:            Mr. Scott M. Brown (trial)
                                    121 E. Myrtle
                                    Angleton, Texas 77515

                                    Mr. Crespin Michael Linton (appeal)
                                    440 Louisiana Street, Suite 900
                                    Houston, Texas 77002




                                      3
                        LIST OF AUTHORITIES

CASES                                                   PAGE


Douds v. State, 434 S.W.3d 842……………………….……                     10
(Tex. App. - Houston [14th Dist.] 2014, pet. granted)



McGee v. State, 105 S.W.3d 609…………………………                       9
(Tex. Crim. App. 2003)



Shepherd v. State, 273 S.W.3d 681……………………………                   9
(Tex. Crim. App. 2008)



State v. Mosely, 348 S.W.3d 435……………………………                     10
(Tex. App. - Austin 2011, pet. ref’d)



Wiede v. State, 214 S.W.3d 17……………………………………                    9
(Tex. Crim. App. 2007)



RULES

TEX. R. App. Proc., Rule
38.1(a)…………………………………….…………………………….                             3




                                 4
               STATEMENT REGARDING ORAL ARGUMENT

   Pursuant to Rule 39.1, Appellant waives the right to oral argument.




                        STATEMENT OF THE CASE

   The Appellant was charged with Intoxication Manslaughter and Felony

Driving While Intoxicated. After a jury trial, the jury found Appellant guilty of

both charges. The jury sentenced him to a term of 12 years in prison for

Intoxication Manslaughter and 10 years in prison for Felony Driving While

Intoxicated.




                          PROCEDURAL HISTORY

   All points of error were affirmed by the Fourteenth Court of Appeals on

May 12, 2015, in a published opinion. No motion for rehearing was filed.




                                        5
                    GROUND FOR REVIEW



GROUND FOR REVIEW

    THE COURT OF APPEALS ERRED IN DETERMINING THAT
    EXIGENT CIRCUMSTANCES JUSTIFIED THE
    WARRANTLESS SEIZURE OF APPELLANT’S BLOOD.


REASON FOR REVIEW

    THE COURT OF APPEALS HAS DEPARTED SO FAR FROM
    THE ACCEPTED AND USUAL COURSE OF JUDICIAL
    PROCEEDINGS OR SO FAR SANCTIONED SUCH A
    DEPARTURE BY A LOWER COURT, AS TO CALL FOR AN
    EXERCISE OF THE COURT OF CRIMINAL APPEAL’S
    POWER OF SUPERVISION.




                            6
                          STATEMENT OF FACTS



      At about 10:20 p.m. on June 3, 2012, Appellant was involved in a one
car accident on County Road 690 in Brazoria County, Texas, in which the
passenger was killed. Trooper David Wyman arrived at the scene at about
11:00 p.m. and smelled alcohol on Appellant’s breath inside an ambulance
in which Appellant was located. Appellant was then taken to a local hospital.
Wyman did not arrive at the hospital until Midnight because he had to monitor
the accident scene until another officer arrived.      At 1:15 a.m., Wyman
ordered a mandatory blood draw after he concluded that Appellant was
intoxicated and after Appellant refused to consent to provide a specimen of
his blood.
      In a pretrial hearing, the trial denied Appellant’s motion to suppress the
results of the blood draw obtained without a warrant. The trial court found
that exigent circumstances justified that warrantless seizure of Appellant’s
blood. The jury found Appellant guilty of Intoxication Manslaughter and
Felony DWI and sentenced him to prison terms of 12 years and 10 years
respectively.




                                       7
              ARGUMENTS AND AUTHORITIES



GROUND FOR REVIEW ONE

    THE COURT OF APPEALS ERRED IN DETERMINING THAT
    EXIGENT CIRCUMSTANCES JUSTIFIED THE
    WARRANTLESS SEIZURE OF APPELLANT’S BLOOD.

REASON FOR REVIEW

    THE COURT OF APPEALS HAS SO FAR DEPARTED FROM
    THE ACCEPTED AND USUAL COURSE OF JUDICIAL
    PROCEEDINGS OR SO FAR SANCTIONED SUCH A
    DEPARTURE BY A LOWER COURT, AS TO CALL FOR AN
    EXERCISE OF THE COURT OF CRIMINAL APPEAL’S
    POWER OF SUPERVISION.




                           8
                                 DISCUSSION


      The Court of Appeals incorrectly held that the totality of the

circumstances supported the trial court’s decision that found that exigent

circumstances existed that made obtaining a warrant impractical.

      At a suppression hearing, the trial court is the sole and exclusive trier

of fact and judge of credibility of the witnesses, as well as the weight to be

give their testimony. Weide v. State, 214 S.W.3d 17 (Tex. Crim. App. 2007)

In reviewing a trial court’s ruling on a motion to suppress, the appellate court

gives almost total deference to a trial court’s determination of historical facts,

and review de novo the trial court’s application of law of search and seizure.

Shepherd v. State, 273 S.W.3d 681 (Tex. Crim. App. 2008

      The exceptions to the rule that a search must rest upon a search

warrant include: 1) voluntary consent to search, 2) search under exigent

circumstances, and 3) search incident to arrest, and the State bears the

burden to prove that a warrantless search falls within one of these

exceptions. McGee v. State, 105 S.W.3d 609, 615 (Tex. Crim. App. 2003)

A warrantless seizure of a blood sample can be constitutionally permissible

if the State proves that the police had probable cause to arrest a suspect,

                                        9
exigent circumstances existed, and a reasonable method of extraction is

available. State v. Mosely, 348 S.W.3d 435, 440 (Tex. App. – Austin 2011,

pet. ref’d) Only the exigent circumstances exception applies in this case

because Appellant did not consent to the taking of his blood and the taking

of blood was not a proper search incident to arrest. “To ensure that the

exigencies of the situation make dispensing with the constitutional

requirements of a warrant imperative, courts must focus on whether the State

showed that police could not reasonably obtain a warrant, not on whether it

showed how severe the accident was. Douds v. State, 434 S.W.3d 842, 854

(Tex. App. – Houston [14th Dist.] 2014, pet. granted).



      While Appellant acknowledges that 3 hours passed from the time of

the accident until Trooper Wyman ordered the mandatory blood draw,

Appellant contends that the appellate court refused to acknowledge the fact

that Trooper Wyman never even attempted to obtain a warrant. Trooper

Wyman supported his decision for a warrantless blood draw by testifying it

would have taken too much time for him to type up the warrant and find a

local judge in the middle of the night to sign the warrant for a blood draw.

By relying upon Trooper Wyman’s testimony to uphold the trial court’s
                                      10
decision, the appellate court supported Trooper Wyman’s decision to not

even try to obtain a warrant because the process was too hard. Because

Wyman had already smelled alcohol on Appellant’s breath at the accident

scene, Wyman could have called his office to begin the process of locating

a judge and preparing a warrant, but Wyman decided against the additional

work and just relied on the mandatory blood draw statute. Wyman’s refusal

to do the extra work necessary to obtain warrant does not amount to

exigent circumstances. Therefore, the Court of Appeals erred in

determining that exigent circumstances existed to justify the warrantless

seizure of Appellant’s blood.




                                     11
                       PRAYER FOR RELIEF

       For the reasons stated, Appellant Garcia prays the Court to grant his
Petition For Discretionary Review, and after considering the grounds for
review, reverse the judgment of the court of appeals and grant the relief
requested.
                                         Respectfully submitted,
                                         _/s/ Crespin Michael Linton_
                                         Crespin Michael Linton
                                         440 Louisiana, Suite 900
                                         Houston, Texas 77002
                                         Texas Bar No. 12392850
                                         (713) 236-1319
                                         (713) 236-1242 (Fax)

                     CERTIFICATE OF COMPLIANCE

I hereby certify that Appellant’s Brief, as calculated under Texas Appellate
Rule of Appellate Procedure 9.4, contains 1,466 words as determined by
the Word program used to prepare this document.

                                          _/s/ Crespin Michael Linton
                                          Crespin Michael Linton

                       CERTIFICATE OF SERVICE

I do hereby certify that on this the 8th day of July 2015, a true and correct
copy of the foregoing Appellant’s Brief was served by E-service in
compliance with Local Rule 4 of the Court of Appeals or was served in
compliance with Article 9.5 of the Rules of Appellate Procedure delivered to
the Assistant District Attorney of Harris County, Texas, 111 E. Locust
Street, 4th Floor Angleton, Texas 77515 at davidb@brazoria-county.com
and the State Prosecuting Attorney, P.O. Box 12405 Austin, Texas 78711
at information@spa.texas.gov.

                                   __/s/_Crespin Michael Linton__
                                         Crespin Michael Linton
                                     12
           APPENDIX A



  Opinion In the Court of Appeals

For The Fourteenth District of Texas



       No. 14-14-00387-CR



       Dylan Jezreel Garcia,
                          Appellant
                v.

          State of Texas,
                      Appellee




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