                                                                                                ACCEPTED
                                                                                           01-15-00310-CR
                                                                                 FIRST COURT OF APPEALS
                                                                                         HOUSTON, TEXAS
                                     01-15-00310-CR                                    4/6/2015 5:05:18 PM
                                                                                      CHRISTOPHER PRINE
                                                                                                    CLERK

                       IDENTITY OF PARTIES AND COUNSEL

Pursuant to TEX.R.APP.P. 52.3(a), the Relator presents the following list of all parties
                                                                        FILED IN
and the names and addresses of counsel:                          1st COURT OF APPEALS
                                                                      HOUSTON, TEXAS
   1. Relator (Defendant in Underlying Action)                    4/6/2015 5:05:18 PM
                                                                  CHRISTOPHER A. PRINE
      Miguel Angel Yepez                                                  Clerk


             Represented by:

             Paul B. Kennedy, Attorney at Law, 1415 North Loop West, Suite 102,
             Houston, Texas 77008

   2. Respondent/Trial Court Judge

      The Honorable Ruben Guerrero, 174th Judicial District Court, Harris County
      Criminal Justice Center, 1201 Franklin, Houston, Texas 77002

   3. Real Parties in Interest

      Plaintiff in Underlying Action:

      State of Texas

             Represented by:

             Devon Anderson, Harris County District Attorney, 1201 Franklin, 6 th Floor,
             Houston, Texas 77002

      Defendant in Underlying Action:

      Miguel Angel Yepez

             Represented by:

             Paul B. Kennedy, Attorney at Law, 1415 North Loop West, Suite 102,
             Houston, Texas 77008




                                           1
                                         TABLE OF CONTENTS

                                                                                                               Page

IDENTITY OF PARTIES AND COUNSEL ............................................................ 1

TABLE OF CONTENTS ....................................................................................... 2

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

STATEMENT OF THE CASE ............................................................................... 6

STATEMENT OF JURISDICTION ........................................................................ 6

ISSUES PRESENTED FOR RELIEF ................................................................... 6

STATEMENT OF FACTS ..................................................................................... 7

              1. Procedural History........................................................................... 7

              2. Order for AIDS Testing .................................................................... 8

              3. TEX.CODE CRIM.PROC. ART. 21.31 ................................................... 9

ARGUMENTS AND AUTHORITIES ..................................................................... 9

               I. STANDARD OF REVIEW ............................................................... 9

              II. THE ACT SOUGHT TO BE COMPELLED IS PURELY
                  MINISTERIAL................................................................................ 10

             III. RELATOR HAS NO OTHER ADEQUATE REMEDY AT LAW ...... 11

             IV. RELATOR HAS A CLEAR AND INDISPUTABLE RIGHT TO
                 RELIEF… ...................................................................................... 11

                           A. The statute compelling Relator to submit to an AIDS test
                              violated Relator’s rights under the 1st, 4th, 5th and 14th
                              Amendments to the United States Constitution ............... 12

                           B. The statute compelling Relator to submit to an AIDS test
                              violated Relator’s rights under Art. 1, Sec. 9 of the Texas
                              Constitution ...................................................................... 14

PRAYER ............................................................................................................. 15


                                                     2
SIGNATURE....................................................................................................... 15

VERIFICATION .................................................................................................. 16

APPENDIX ONE: Information filed December 30, 2013 .........................................

APPENDIX TWO: Indictment filed May 16, 2014 ...................................................

APPENDIX THREE: Order for AIDS Testing signed March 5, 2015.......................




                                                   3
                                                INDEX OF AUTHORITIES

                                                                                                                      Page

                                                 FEDERAL CASES

Cooper v. California,
     386 U.S. 58, 62 (1967) ....................................................................................... 14

Katz v. U.S.,
       389 U.S. 347, 359 (1967) ................................................................................... 13

Roe v. Wage,
      410 US 113, 152 (1973) ..................................................................................... 13


                                                   STATE CASES

Heitman v. State,
      815 S.W. 2d 681, 682 (Tex.Crim.App. 1991) ...................................................... 14

Neveu v.Culver,
     105 S.W. 3d 641, 642 (Tex.Crime.App. 2003) ...................................................... 9

State ex rel. Hill v. Fifth Court of Appeals,
       34 S.W. 3d 924, 927 (Tex.Crim.App. 2001) .......................................................... 9

                       FEDERAL CONSTITUTIONS, STATUTES AND CODE

U.S. CONSTITUTION, First Amendment ........................................................................... 11

U.S. CONSTITUTION, Fourth Amendment ........................................................................ 11

U.S. CONSTITUTION, Fifth Amendment ........................................................................... 11

U.S. CONSTITUTION, Sixth Amendment .......................................................................... 11

U.S. CONSTITUTION, Fourteenth Amendment ................................................................. 11


                         STATE CONSTITUTIONS, STATUTES AND CODE

TEX. CONST. ART. 1, § 9 .................................................................................................... 7

TEX.CODE CRIM.PRO. ART. 21.31...................................................................................... 6

TEX.CODE CRIM. PRO. ART. 44,02 ..................................................................................... 6
                                                              4
TEX.GOV’T.CODE §22.221 ................................................................................................ 6

TEX.PEN.CODE § 21.11(a) ............................................................................................. 10

TEX.PEN.CODE § 22.011 ................................................................................................ 10

TEX.PEN.CODE § 22.021 ................................................................................................ 10




                                                           5
                               STATEMENT OF THE CASE

       This mandamus action arises from a case in which Relator, Miguel Angel Yepez,

was accused, and later indicted, for the offense of indecency with a child. Following the

indictment, the Assistant District Attorney handling the case presented the court with an

order requiring Defendant to undergo an AIDS test. The Respondent, the Honorable

Ruben Guerrero, 174th Judicial District Court, Harris County, Texas, signed an order

that deviated from the provisions of Article 21.31 of the Texas Code of Criminal

Procedure without holding a hearing to determine whether the test was justified in the

instant case or whether the order was legal.

       Relator seeks relief from the trial court’s signing of the order.

       It is Relator’s contention that the statute in question is unconstitutionally broad

and, that both as written and as applied, Art. 21.31 violates both his general right to

privacy and his right to be free from unreasonable search and seizure. It is also

Relator’s contention that the order itself was unlawful and illegal as it failed to track the

language of the statute in question.

                            STATEMENT OF JURISDICTION

       This Court has jurisdiction to grant Relator’s Petition for Writ of Mandamus

pursuant to Texas Government Code §22.221. Relator does not have an adequate

remedy at law because he has no right to an interlocutory appeal. TEX.CODE CRIM.PRO.

ART. 44.02.

                           ISSUES PRESENTED FOR RELIEF

       Is a trial court entitled to order a Defendant indicted for indecency with a child to

undergo an AIDS test, pursuant to Article 21.31 of the Texas Code of Criminal

Procedure, without conducting a hearing to determine whether such a test is warranted?

                                              6
       Is it a violation of a Defendant’s First, Fourth, Fifth and Fourteenth Amendment s

rights for a trial court to order a Defendant indicted for indecency with a child to undergo

an AIDS test, pursuant to Article 21.31 of the Texas Code of Criminal Procedure,

without a finding of probable cause that the alleged conduct was capable of transmitting

the AIDS virus?

       Is it a violation of a Defendant’s rights under Article 1, Section 9 of the Texas

Constitution to protection from unreasonable search and seizure for a trial court to order

a Defendant indicted for indecency with a child to undergo an AIDS test, pursuant to

Article 21.31 of the Texas Code of Criminal Procedure, without a finding of probable

cause that alleged conduct was capable of transmitting the AIDS virus?

       Is the order in question an unlawful or illegal order because it fails to track the

language of Article 21.31 of the Texas Code of Criminal Procedure?

                                STATEMENT OF FACTS

                                   1. Procedural History

       On December 30, 2013, Relator, Miguel Angel Yepez, was charged by

information with the offense of indecency with a child (see Appendix One). The

information alleged that Relator unlawfully engaged in sexual contact with the

complaining witness by touching the complaining witness’ genitals. Attached to the

information was an Affidavit of Probable Cause that stated the alleged contact was over

the clothing of the complaining witness.

       On May 16, 2014, Relator was indicted by a Harris County Grand Jury for the

offense of indecency with a child (See Appendix Two). The indictment alleged that




                                             7
Relator unlawfully engaged in sexual contact with the complaining witness by touching

the complaining witness’ genitals.

      On March 5, 2015, the Harris County Assistant District Attorney handling the

case presented the trial court with an order for AIDS testing that was drafted by the

District Attorney’s Office. Upon presentment of the proposed order, without the benefit

of a hearing on the record, Respondent, the Honorable Ruben Guerrero, granted the

proposed order (See Appendix Three).

      Relator then filed this Petition for Writ of Mandamus.

                                2. Order for AIDS Testing

      The order signed by the trial court states that the court found, on its own motion,

that the best interests of both justice and the Relator would be served by forcing Relator

to undergo an unnecessary medical procedure.

      Relator was denied a hearing on the matter to determine whether the testing

permitted under TEX.CODE CRIM.PROC. ART. 21.31 was appropriate in a matter in which

there were no allegations that any contact took place between Relator and the

complaining witness by which the AIDS virus, or any other sexually transmitted disease,

could be transferred. Relator was denied a hearing on the matter to determine whether

the proposed order, drafted by the attorney for the state, was even legal.

      To date there has been no probable cause finding by the trial court that any

contact capable of transmitting the AIDS virus, or any other sexually transmitted

disease, ever occurred in the instant case.




                                              8
                                3. TEX.CODE CRIM.PROC. ART. 21.31

       Article 21.31 of the Texas Code of Criminal Procedure states that a person

indicted for the offense of indecency with a child “shall, at the direction of the court on

the court’s own motion,…undergo a standard diagnostic test approved by the United

States Food and Drug Administration for human immunodeficiency virus and other

sexually transmitted diseases.”

       Article 21.31 contains neither a provision for a hearing to determine whether

granting the requested test is appropriate given the facts of a particular case or for a

defendant’s right to appeal such an order.

       Article 21.31 also specifies that the order must be derived from the trial court’s

own motion – not a proposed order drafted and filed by the attorney for the State.

                                ARGUMENTS AND AUTHORITIES

       I.      STANDARD OF REVIEW

       Mandamus is appropriate if the relator can demonstrate that (1) the act sought to

be compelled is purely ministerial, and (2) he has no other adequate legal remedy.

Neveu v. Culver, 105 SW3d 641,642 (Tex.Crim.App. 2003).

       An act is considered ministerial if it does not involve the exercise of discretion.

State ex rel. Hill v. Fifth Court of Appeals, 34 SW3d 924,927 (Tex.Crime.App. 2001). In

Hill, the Court held that the consideration of “a motion properly filed and before the court

is ministerial.” Hill at 927.

       The granting of a writ of mandamus is appropriate if the relator can

demonstration that (1) he has not other adequate legal remedy, and (2) he has a clear

and indisputable right to the relief sought. Id.



                                              9
       In the instant case, Respondent’s consideration of the state’s motion for AIDS

testing was purely ministerial, Relator has a clear right to the relief sought based upon

the motion and evidence before the trial court and Relator has no right to appeal the trial

court’s ruling as ti was neither evidentiary nor procedural in nature.

       II.    THE ACT SOUGHT TO BE COMPELLED IS PURELY MINISTERIAL

       On March 5, 2015, the attorney for the state presented an order, prepared by the

Harris County District Attorney’s Office, for AIDS testing to Respondent. Without a

hearing on the merits of the state’s request, Respondent signed the order compelling

Relator to undergo an AIDS test on or before April 9, 2015.

       The proposed order was presented to Respondent under the guise of Article

21.31 of the Texas Code of Criminal Procedure.

       The purpose of TEX.CODE CRIM.PROC. ART. 21.31 is to determine whether the

alleged victims of a sexual offense under Articles 21.11(a), 22.021 or 22.011 of the

Texas Penal Code may have been exposed to the AIDS virus, or another sexually

transmitted disease. The article in question was enacted in response to trial courts’

orders compelling defendants to submit to AIDS testing being overturned by the Courts

of Appeal for various deficiencies in the orders.

       In the instant case there is no allegation that any contact occurred between

Relator and the complaining witness that could have exposed the complaining witness

to the AIDS virus, or any other sexually transmitted disease. As Respondent made his

decision without the benefit of an evidentiary hearing, the only evidence before the court

is the Affidavit of Probable Cause attached to the original information. The

aforementioned Affidavit of Probable Cause states that Relator allegedly touched the



                                             10
complaining witness’ genitals over her clothing. There were no allegations in the

Affidavit of Probable Cause that Relator either penetrated the genitals of the

complaining witness or made any other skin-to-skin contact.

       Despite his knowledge of the allegations, and his admission that any alleged

contact was over the clothing of the complaining witness, the Assistant District Attorney

presented a proposed order to the trial court asking the trial court to compel Relator to

submit to a medical procedure to determine if he carried either the AIDS virus or any

other sexually transmitted disease.

       Art. 21.31 does not contain any provision requiring a hearing to determine if the

requested testing is appropriate in any given case. The issuance of such an order is,

therefore ministerial, as it does not allow for discretion on the part of the court.

       The absence of such a hearing in the instant case violated Relator’s Sixth

Amendment right to confront the witnesses and evidence against him as well as

Relator’s right to privacy under the First, Fourth, Fifth and Fourteenth Amendments to

the United States Constitution. The failure of the statute to provide for such a hearing

violated Relator’s rights under Art. 1, Sec. 9 of the Texas Constitution as well.

               III.     RELATOR HAS NO OTHER ADEQUATE REMEDY AT LAW

       As the order signed by Respondent is not an appealable order, Relator has no

right to interlocutory appeal and, therefore, no adequate remedy at law.

         IV.          RELATOR HAS A CLEAR AND INDISPUTABLE RIGHT TO RELIEF

       Relator was indicted for the offense of indecency with a child. Included in the

definition of sexual contact is “any touching by a person, including touching through




                                              11
clothing…of any part of the genitals of a child…” Tex.Pen.Code § 21.11(c)(1) (emphasis

added).

       In its call for AIDS testing, Art. 21.31 does not distinguish between skin-to-skin

contact and contact through the clothing. As the affidavit of probable cause attached to

the indictment in the instant case states that the alleged contact was through the

clothing of the complaining witness, the requirement that all persons indicted under the

prescribed sections of the Texas Penal Code is overbroad and subjects some of those

accused to invasions of their privacy and to unreasonable search and seizure.

       Relator has a well-established right to privacy in his body under the First Fourth,

Fifth and Fourteenth Amendments to the United States Constitution and under Art. 1,

Sec. 9 of the Texas Constitution. Absent a showing that the state has a compelling

interest in violating Relator’s right to privacy, the provisions Art. 21.31 represent an

unreasonable and unconstitutional intrusion into Relator’s body.

       Additionally, Art. 21.31 states that the standard diagnostic test be approved by

the United States Food and Drug Administration. The order, as drafted and submitted

by the attorney for the state, contains no such provision regarding the type of test or

what agency is to have approved said test. Therefore the order signed by Respondent

fails to track the language of the statute in question and is, itself, illegal and unlawful.

              A. The statute compelling Relator to submit to an AIDS test violated
                 Relator’s rights under the First, Fourth, Fifth and Fourteenth
                 Amendments to the United States Constitution

       The Fourth Amendment of the United States Constitution protects the people

from unreasonable search and seizure. The United States Supreme Court has held that




                                              12
a warrantless search is unreasonable unless it falls into one of several exceptions that

the Court has carved out over time. Katz v. U.S., 389 U.S. 347, 359 (1967).

      A general right to privacy is to be inferred from the First, Fourth, Fifth and

Fourteenth Amendments as well as “prenumbras of the Bill of Rights.” Roe v. Wade,

410 US 113, 152 (1973).

      In order to intrude upon a person’s protection against unreasonable search and

seizure, the party seeking the warrant must show the magistrate that there is probable

cause to believe that a crime occurred and that the item or items they seek are

evidence of the alleged crime. Id. at 357.

      In the instant case the order compelling Relator to undergo an AIDS test is

tantamount to a search warrant. Therefore, the order must be supported by a finding of

probable cause that a crime occurred that could lead to the complaining witness’

exposure to the AIDS virus or any other sexually transmitted disease.

      As the trial court was not required by statute to conduct a hearing to determine

whether the necessary quantum of evidence existed, Relator’s right to privacy and, in

particular, his right to be free of unreasonable search and seizure, was violated without

cause. As no hearing was conducted that would require the state to produce any

evidence that the alleged contact could have exposed the complaining witness to the

AIDS virus, or any other sexually transmitted disease, we must rely on the Affidavit of

Probable Cause attached to the information filed on December 30, 2013 that makes no

such allegation.




                                             13
         Absent such evidence, the order compelling Relator to submit to an AIDS test

violated Relator’s privacy rights under the First, Fourth, Fifth and Fourteenth

Amendments to the United States Constitution.

                B. The statute compelling Relator to submit to an AIDS test violated
                   Relator’s rights under Art. 1, § 9 of the Texas Constitution

         Article 1, § 9 of the Texas Constitution outlines the protections that the people in

the State of Texas have against unreasonable search and seizure at the hands of the

State.

         The Fourth Amendment to the United States Constitution lays out the minimum

protections afforded to the people against unreasonable search and seizure. The states

are free to guarantee the people greater protection than that under the Bill of Rights in

their own constitutions and statutes. Cooper v. California, 386 U.S. 58, 62 (1967).

         Article 1, § 9 provides the people the same protection as does the Fourth

Amendment. Heitman v. State, 815 S.W.2d 681, 682 (Tex.Crim.App. 1991). Therefore,

the people in Texas are protected against warrantless searches by the State.

Furthermore, a search warrant in Texas may only be issued upon a showing of probable

cause supported by an oath or affirmation from the party seeking the warrant.

         If we analogize the order compelling Relator to submit to a medical procedure to

a search warrant, the order may only be granted upon a showing of probable cause

supported by oath or affirmation.

         The only statement supported by oath or affirmation is the Affidavit of Probable

Cause attached to the information filed on December 30, 2013 in the instant case. That

affidavit alleges the contact between Relator and the complaining witness was over the




                                              14
clothing of the complaining witness. There are no sworn allegations that there was any

skin-to-skin contact between Relator and the complaining witness’ genitals.

       As such, there has been no evidence presented to the trial court to indicate that

the complaining witness in the instant case could have been exposed to the AIDS virus

or any other sexually transmitted disease. Absent such evidence, the signing of the

order in question, pursuant to Art. 21.31, by Respondent violated Relator’s protections

under Article 1, Section 9 of the Texas Constitution.

                                         PRAYER

       Relator, Miguel Angel Yepez, prays that this Court issue temporary relief by

staying the trial court’s order compelling Relator to submit to an AIDS test. Relator

further prays that this Court grant the petition for mandamus and direct the Honorable

Ruben Guerrero to withdraw the order in question. Finally, Relator prays that the Court

grant such other and further relief to which he may be justly entitled.



Dated: April 6, 2015                          Respectfully submitted,

                                              Paul B. Kennedy
                                              Paul B. Kennedy
                                              Attorney at Law
                                              SBOT: 24050866
                                              1415 North Loop West, Suite 102
                                              Houston, Texas 77008
                                              Tel: (713) 864-9727
                                              Fax (866) 587-2584
                                              E-mail: pkennedy@kennedy-law.biz

                                              ATTORNEY FOR RELATOR,
                                              MIGUEL ANGEL YEPEZ




                                             15
