                                                                                    PD-1615-14
                                                                 COURT OF CRIMINAL APPEALS
                                                                                  AUSTIN, TEXAS
                                                              Transmitted 12/29/2014 5:40:36 PM
                                                               Accepted 12/30/2014 10:55:45 AM
                                                                                   ABEL ACOSTA
                                NO. PD-1615-14                                             CLERK

                  IN THE COURT OF CRIMINAL APPEALS

STATE OF TEXAS,
             Petitioner

vs.

WILLIAM SMITH,
            Respondent

       State’s Petition for Discretionary Review from William Smith v. State, No.
13-11-00694-CR in the Thirteenth Court of Appeals, trial cause No. 11-CR-0403-
C in the 94th Judicial District Court, Nueces County, the Hon. Bobby Galvan
presiding



      REPLY TO STATE’S PETITION FOR DISCRETIONARY REVIEW



Respectfully submitted by:

Donald B. Edwards
State Bar No. 06469050
Law Office of Donald B. Edwards
P.O. Box 3302                                           December 30, 2014
Corpus Christi, TX 78463-3302
(361) 887-7007
(361) 887-7009 (fax)
                                                 Table of Contents


Index of Authorities.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

I. The State’s petition for review lacks grounds to warrant this Honorable Court’s
      attention.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

II. This Honorable Court has correctly determined the Transportation Code does
      not create an exception to the warrant requirement to permit warrantless
      blood draws.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

III. The trial court was made sufficiently aware of the complaint in a timely
      fashion for purposes of preserving error under the Rules of Appellate
      Procedure, and the issue does not otherwise merit review.. . . . . . . . . . . . . . 5

Prayer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Certificate of Compliance and Service. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9




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                                          Index of Authorities

Cases

Anderson v. State, 633 S.W.2d 851 (Tex. Crim. App. 1982). . . . . . . . . . . . . . . . . . 6

Garza v. State, 126 S.W.3d 79 (Tex. Crim. App. 2004).. . . . . . . . . . . . . . . . . . . . . 6

Missouri v. McNeely, 133 S.Ct. 1552 (2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

State v. Villarreal, PD-0306-14 (Tex. Crim. App. November 26, 2014). . . . . . . 4, 5



Court Rules

TEX. R. APP. P. 33.1(a)(1)(A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7




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I. The State’s petition for review lacks grounds to warrant this Honorable
Court’s attention.

      The State has offered only two grounds for review. The first, whether the

implied consent statute and mandatory blood draw provisions of the Transportation

Code provide an exception to the warrant requirement, has already been answered by

this Honorable Court in the negative in State v. Villarreal, PD-0306-14 (Tex. Crim.

App. November 26, 2014). While that case is still pending on rehearing, Respondent

would contend this Honorable Court correctly determined that the Transportation

Code does not create a permissible exception to the warrant requirement, as has also

been held by most of the Courts of Appeals in this State. The second ground for

review, whether the defendant failed to preserve error by objecting in a timely

fashion, does not present an issue of significance to the jurisprudence of the State that

it warrants being addressed by this Honorable Court. None of the In fact, even if the

State is correct about the error not being preserved at trial, by granting PDR on an

issue concerning the timeliness of an objection recognized by defense counsel, this

Honorable Court would do little more than require the issue concerning the

unconstitutional taking of a blood sample without warrant or consent to be re-urged

via a habeas petition, necessitating needless expense and a waste of judicial

resources.



                                           4
II. This Honorable Court has correctly determined the Transportation Code
does not create an exception to the warrant requirement to permit warrantless
blood draws.

      In State v. Villarreal, PD-0306-14, this Honorable Court held the

Transportation Code does not create an exception to the warrant requirement to

permit a warrantless taking of blood. The State has offered no argument in its

petition in this case to distinguish it from Villarreal. Respondent would contend this

Honorable Court directly decided Villarreal in light of the controlling precedent of

Missouri v. McNeely, 133 S.Ct. 1552 (2013). Respondent reserves the right to

discuss the issue of the unconstitutionality of a warrantless blood draw in the event

this Honorable Court decides to grant this petition and requests briefing on the merits.



III. The trial court was made sufficiently aware of the complaint in a timely
fashion for purposes of preserving error under the Rules of Appellate Procedure,
and the issue does not otherwise merit review.

      The State complains Respondent’s counsel did not timely object to the

admission of the blood test results and thus waived the issue on appeal. Respondent

contends the objection was sufficient and timely to prevent the trial court from

considering inadmissible evidence as the trier of fact. Furthermore, if the objection

is held to be untimely, the inevitable result will be a habeas petition urging ineffective

assistance of counsel for failing to object in a timely fashion to evidence he showed

                                            5
himself to understand was inadmissible at the time of trial, such ineffective assistance

being more than sufficient to undermine the outcome of the trial.

      The purpose of a timely objection is to give the trial judge the opportunity to

cure error. See generally Anderson v. State, 633 S.W.2d 851 (Tex. Crim. App. 1982).

This was a trial to the bench, not to a jury. Judges sitting as triers of fact may be

required to hear about the nature of seized evidence before having to rule on motions

to disregard or suppress the same, yet still be tasked to judge the case after learning

of the evidence that it has to disregard. Garza v. State, 126 S.W.3d 79, 83 (Tex.

Crim. App. 2004). The trial judge is presumed to be able to disregard on request

improperly admitted evidence, so “the time at which a motion is re-urged or a ruling

is obtained is not as crucial, because the judge, as fact-finder, is aware of the

substance of the motion regardless of when the defendant finally argues it.

Conversely, in a jury trial, the timing of an objection and ruling is much more

important because, if the objection is not made early enough and a ruling is not

obtained, the jury is able to hear evidence which it might never have

heard at all.” Id.

      In this case, it is true that the blood test results were revealed to the trial court

before Respondent leveled his many objections to the taking and testing of the

sample; however, immediately upon the proffer of that evidence, Respondent objected

                                            6
on many grounds, and the case essentially stopped for a long discussion about the

taking of the blood without a warrant and whether such taking was unconstitutional.

After a long discussion about the nature of Respondent’s objection to the evidence,

the trial court stated from the bench that it understood Respondent to be making an

objection on Fourth Amendment search and seizure grounds. RR Vol. 1, p. 84, ll. 10-

25. When the State reoffered the exhibit of the blood test results, defense counsel

reurged his objections. RR Vol. 1, p. 93, ll. 18-25. The trial court stated it would

reserve ruling on the constitutional issue. RR Vol. 1, p. 95, ll. 17-19. At the close of

evidence, defense moved for an “instructed verdict,” complaining again that the blood

was taken in violation of the Fourth Amendment. RR Vol. 2, p. 21, ll. 8-11.

      This was more than adequate to “make the trial court aware of the complaint.”

TEX. R. APP. P. 33.1(a)(1)(A). It actually made the trial court aware of the complaint

that Respondent’s blood was illegally seized without a warrant or express consent and

the test results should be held inadmissible. The trial court could have disregarded

the evidence but chose not to do so, instead relying on the test results to find

Respondent guilty. RR Vol. 2, p. 26, l. 21 through p. 27, l. 11.

      The Thirteenth Court of Appeals’ determination that the issue was preserved

was neither against the plain language of the rule, in conflict with decisions of other

courts of appeals, in conflict with rulings by this Honorable Court, or so far departed

                                           7
from the ordinary course of judicial procedure to require this Honorable Court to

address the decision of the lower court.

      Even if this Honorable Court were to hold the objection was not timely, there

can be no viable trial strategy in waiting behind the log to permit the introduction of

inculpatory evidence before objecting to the same. Trial counsel’s objections showed

he was aware of the need to make the Fourth Amendment complaint, but he might

have been tardy in doing so. Valuable judicial resources would be wasted in the

exercise of reversing the decision of the Court of Appeals and requiring Respondent

and the State (and the courts) to entertain an 11.07 petition to get to the same result

already reached by the Thirteenth Court of Appeals in this case.

                                       Prayer

      Respondent respectfully requests this Honorable Court to deny the State’s

Petition for Discretionary Review.

                                               Respectfully submitted,


                                               Donald B. Edwards
                                               Attorney for Respondent
                                               State Bar No. 06469050
                                               Law Office of Donald B. Edwards
                                               P.O. Box 3302
                                               Corpus Christi, TX 78463-3302
                                               (361) 887-7007
                                               (361) 887-7009 (fax)

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                      Certificate of Compliance and Service

       I, Donald B. Edwards, certify that I hand delivered a copy of this reply to the
Nueces County District Attorney’s Office, attention Mr. Doug Norman, and to the
Office of the State Prosecuting Attorney on December 29, 2014, via the State’s
electronic filing and service system, and that the reply contains 1129 words in those
matters not exempted by Rule 9.

                                              ________________________
                                              Donald B. Edwards




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