                                                                                                         ACCEPTED
                                                                                                     03-13-00494-CR
                                                                                                             7674999
                                                                                          THIRD COURT OF APPEALS
                                                                                                     AUSTIN, TEXAS
                                                                                               11/4/2015 10:23:49 AM
                                                                                                   JEFFREY D. KYLE
                                                                                                              CLERK
                                    No. 03-13-00494-CR

                                      In the                    FILED IN
                                                         3rd COURT OF APPEALS
                              COURT OF APPEALS                AUSTIN, TEXAS
                                     For the             11/4/2015 10:23:49 AM
                     THIRD SUPREME JUDICIAL DISTRICT JEFFREY D. KYLE
                                    at Austin                     Clerk
                     ______________________________________

                  On Appeal from the 264th Judicial District Court of
                                Bell County, Texas
                               Cause Number 68431
                   ______________________________________

                 EUGENE KELLY WOLFENBERGER, Appellant
                                    v.
                      THE STATE OF TEXAS, Appellee
                     _______________________________

      APPELLANT’S MOTION FOR RECONSIDERATION EN BANC1
               __________________________________

                                         Background

       On July 12, 2013, a jury found Appellant guilty of the offense of

intoxication manslaughter and assessed Appellant’s punishment at twenty years in

prison and a $10,000.00 fine. Appellant timely filed Notice of Appeal and on

October 23, 2015, this Court affirmed Appellant’s conviction in a memorandum

opinion.     Wolfenberger v. State, No. 03-13-00494-CR (Tex. App.—Austin,

delivered October 23, 2015).
1
  Simultaneous with this filing, Appellant has also filed a Motion for Rehearing in light of Texas
Rule of Appellate Procedure 49.1 and Franks v. State, 97 S.W.3d 584, 584 (Tex. Crim. App.
2003).

                                                1
                            Grounds for Reconsideration

      On appeal, Appellant argued that Appellant received ineffective assistance

of counsel when trial counsel failed to move to suppress the results of a blood draw

taken pursuant to Texas’s now invalidated implied consent mandatory blood draw

statute. Specifically, Appellant’s blood was taken without a warrant in violation of

Missouri v. McNeely, 133 S.Ct. 1522 (2013), and his attorneys failed to object on

that basis. Despite the fact that the McNeely case, which held that Texas’s implied

consent statute did not provide an exception to the Supreme Court’s long-held

requirement that a warrant be obtained to draw a suspect’s blood, was released

more than two months prior to trial, and was binding Supreme Court’s precedent,

trial counsel made no effort to suppress the results of the blood draw.

      Reconsideration should be granted because this Court absolved trial

counsel’s deficient performance by failing to recognize the authority of the United

States Supreme Court in analyzing its own precedent and instead, ruled that the

Texas Court of Criminal Appeals decisions analyzing United States Supreme Court

precedent should control.




                                          2
        Ineffective Assistance of Counsel

        As discussed above, on Appeal, Appellant argued that he received

ineffective assistance of counsel2 when trial counsel failed to move to suppress the

results of the mandatory blood draw in this case pursuant to the United States

Supreme Court’s holding in Missouri v. McNeely, 133 S.Ct. 1522 (2013).

        On April 17, 2013, the United States Supreme Court issued an opinion in

Missouri v. McNeely, 133 S.Ct. 1522 (2013), holding that “In those drunk-driving

investigations where police officers can reasonably obtain a warrant before a blood

sample can be drawn without significantly undermining the efficacy of the search,

the Fourth Amendment mandates that they do so.” Id. In so holding, the Court

rejected a per se rule that the dissipation of alcohol in the blood stream creates an

exigency which absolves the State of the duty to obtain a warrant before taking a

suspect’s blood. Id. In fact, the Court recognized its long-standing directive that

exigency be determined on the totality of the circumstances and cited its opinion in

Schmerber v. California, 384 U.S. 757 (1966). Despite the fact that Appellant’s

trial occurred more than two months after the McNeely decision, trial counsel made


2
     As this Court is aware, to prevail on a claim of ineffective assistance of counsel, Appellant
    must show that (1) trial counsel’s representation was deficient in that it fell below an objective
    standard of reasonableness; and (2) counsel’s deficient performance prejudiced Appellant so
    that there is a reasonable probability that the result of the proceeding would have been
    different but for the deficient performance. Strickland v. Washington, 466 U.S. 668 (1984);
    Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).
                                                  3
no attempt to move to suppress evidence of Appellant’s blood alcohol content of

.30 and trial counsel made no objection to that evidence.

      This Court absolved trial counsel of any duty to file a motion to suppress or

object to evidence of Appellant’s blood alcohol content because “The law on

mandatory blood draws and implied consent was not settled when trial counsel

presented appellant’s case” and stated further in a foot note that:

      Trial commenced on July 8, 2013, more than two months after the
      Supreme Court held that blood-alcohol dissipation is not a per se
      exigency justifying warrantless, nonconsensual blood draws in
      Missouri v. McNeely, 133 S. Ct. 1552 (2013). However, the Texas
      Court of Criminal Appeals did not address whether nonconsensual
      blood draws taken pursuant to Texas Transportation Code § 724.012
      require a warrant until after appellant’s trial concluded, and the court
      has since decided to reconsider that ruling on rehearing. State v.
      Villarreal, __ S.W.3d __, No. PD-0306-14, 2014 WL 6734178, at *8-
      9, 11 (Tex. Crim. App. Nov. 26, 2014) (reh’g granted). The law
      surrounding Texas’s implied-consent and mandatory-blood-draw
      statutes has been unsettled since before appellant’s trial.


Wolfenberger v. State, No. 03-13-00494-CR (Tex. App.—Austin, delivered

October 23, 2015), at 7.

      Interestingly, this Court acknowledges the Supreme Court’s clear holding

“that blood-alcohol dissipation is not a per se exigency justifying warrantless,

nonconsensual blood draws” in Missouri v. McNeely, 133 S. Ct. 1552 (2013),

which would have triggered counsel’s duty to object or move to suppress the


                                          4
evidence on that basis. The Court then essentially states that it is up to the Court of

Criminal Appeals to interpret the Supreme Court’s holdings and until the Court of

Criminal Appeals does so, the Supreme Court’s holdings are not binding on

counsel.

         In its opinion, this Court cites two cases for the proposition that counsel’s

performance cannot be held to be deficient where an area of law is unsettled. See

State v. Bennett, 415 S.W.3d 867 (Tex. Crim. App. 2013) and Bernal v. State, No.

02-13-00381-CR, 2014 WL 5089182 (Tex. App.—Fort Worth Oct. 9, 2014, no

pet.).

         In the first of those cases, the area of unsettled law was that of a State statute

and its meaning as interpreted by several conflicting opinions by the Court of

Criminal Appeals. See State v. Bennett, 415 S.W.3d at 868-869. The Bennett

opinion in no way contemplated United States Supreme Court precedent. See Id.

         In the second, unpublished case with no precedential value, the Fort Worth

Court of Appeals held that counsel was not ineffective for failing to suppress

results of a warrantless, nonconsensual blood draw under McNeely because

“McNeely did not address directly the effect of mandatory-blood-draw or implied-

consent statues on the warrant requirement,” and “the import of McNeely on

Texas’s mandatory-blood-draw and implied-consent statutes was unsettled at the

                                              5
time of [appellant’s] trial . . .” See Bernal, No. 02-13-00381-CR, slip. op. at 10-12.

       However, those statements are incorrect.       In fact, in its opinion in the

McNeely case, the United States Supreme Court directly addressed the various

implied consent laws adopted by the fifty states and noted that a driver who has

impliedly consented to blood alcohol testing as a condition of operating a motor

vehicle on public roads can withdraw that consent if asked to give a blood or

breath sample. Missouri v. McNeely, 133 S.Ct. 1522 (2013). The Court stressed

that “wide-spread state restrictions on nonconsensual blood testing provide further

support for our recognition that compelled blood draws implicate a significant

privacy interest.” Id.

      It is well-settled that United States Supreme Court precedent controls and

when the United States Supreme Court requires a warrant in a blood draw case,

counsel should have a duty to object to blood evidence obtained without a warrant.

To fail to do so is deficient performance, especially in a case where the evidence

indicates Appellant was almost four times the legal level for intoxication and there

is a dispute as to whether he was intoxicated at the time the alleged offense was

committed. Because this Court held to the contrary, and for the foregoing reasons

reconsideration should be granted.




                                          6
                                      PRAYER

        WHEREFORE, PREMISES CONSIDERED, Appellant respectfully

requests that this Court grant reconsideration in this case.

                                                Respectfully submitted,

                                                      /s/ Kristen Jernigan


                                                KRISTEN JERNIGAN
                                                State Bar Number 90001898
                                                207 S. Austin Ave.
                                                Georgetown, Texas
                                                (512) 904-0123
                                                (512) 931-3650 (fax)
                                                Kristen@txcrimapp.com


                          CERTIFICATE OF SERVICE

        This is to certify that a true and correct copy of the foregoing Appellant’s

Motion for Reconsideration En Banc was mailed to Bob Odom at the Bell County

District Attorney’s Office, 1200 Huey Road, Belton, Texas 76513, on October 27,

2015.


                                                /s/ Kristen Jernigan

                                               Kristen Jernigan




                                           7
                    CERTIFICATE OF WORD COUNT

      The undersigned hereby certifies that the foregoing document consists of

1,433 words in compliance with Texas Rule of Appellate Procedure 9.4.



                                    ______/s/ Kristen Jernigan______________
                                    Kristen Jernigan




                    CERTIFICATE OF WORD COUNT

      The undersigned hereby certifies that the foregoing document consists of

1,327 words in compliance with Texas Rule of Appellate Procedure 9.4.



                                    ______/s/ Kristen Jernigan______________
                                    Kristen Jernigan




                                       8
