                         PD-0418-15
                                                                April 16, 2015

                                   No.
                                  In the
                       COURT OF CRIMINAL APPEALS
                                 For the
                            STATE OF TEXAS


                        THOMAS ANDREW EVANS, II
                                Appellant
                                   v
                          THE STATE OF TEXAS
                                Appellee



 On State’s Petition for Discretionary Review from the Fourteenth Court of
                  Appeals, Appeal Number 14-13-00642-CR
 On Appeal from County Court at Law Number Two of Fort Bend County,
                   Texas, Cause Number 12-CCR-159784


          STATE’S PETITION FOR DISCRETIONARY REVIEW



Counsel for Appellee              JOHN F. HEALEY
                                  DISTRICT ATTORNEY
                                  FORT BEND COUNTY, TEXAS

                                  JASON BENNYHOFF
                                  ASSISTANT DISTRICT ATTORNEY
                                  FORT BEND COUNTY, TEXAS

                                  309 South Fourth Street, 2nd floor
                                  Richmond, Texas 77469
                                  281-341-4460 (Tel.)
                                  281-238-3340 (Fax)
                                  jason.bennyhoff@fortbendcountytx.gov
                                           TABLE OF CONTENTS

SECTION                                                                                                                     PAGE

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

STATEMENT OF PROCEDURAL HISTORY. . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

GROUND FOR REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

         Did the Fourteenth Court of Appeals err in holding that there is no
         way in which the mandatory blood draw taken in this case was
         reasonable under the Fourth Amendment to the United States
         Constitution, in reliance on this Court’s opinion in State v. Villarreal?
         .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

ARGUMENT AND AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

APPENDIX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9




                                                                ii
                                       INDEX OF AUTHORITIES


CASES                                                                                                           PAGE

Beeman v. State, 86 S.W.3d 613, 616 (Tex. Crim. App. 2002).. . . . . . . . . . . . . . . 6

 Douds v. State, No. 14-12-00642-CR, 2013 WL 5629818 (Tex. App.—Houston
[14th Dist.] Oct. 15, 2013), rev’d by Douds v. State, 434 S.W.3d 842 (Tex.
App.—Houston [14th Dist.] 2014, pet. granted Sep. 17, 2014). . . . . . . . . . . . . . . . 6

Evans v. State, No. 14-13-00642, 2015 WL 545702 at *8 (Tex. App.—Houston
[14th Dist.] Feb. 10, 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Griffin v. Wisconsin, 483 U.S. 868, 873 (1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602, 620-21 (1989). . . . . . . . . . 5

State v. Villarreal, No. PD-0306-14, 2014 WL 6734178 (Tex. Crim. App. Nov. 26,
2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim




                                                            1
       STATEMENT REGARDING ORAL ARGUMENT

The State does not request oral argument.




                                  2
                                  No.
                                 In the
                      COURT OF CRIMINAL APPEALS
                                For the
                           STATE OF TEXAS


                       THOMAS ANDREW EVANS, II
                               Appellant
                                  v
                         THE STATE OF TEXAS
                               Appellee



 On State’s Petition for Discretionary Review from the Fourteenth Court of
                  Appeals, Appeal Number 14-13-00642-CR
 On Appeal from County Court at Law Number Two of Fort Bend County,
                   Texas, Cause Number 12-DCR-159784


          STATE’S PETITION FOR DISCRETIONARY REVIEW



TO THE HONORABLE COURT OF CRIMINAL APPEALS:

      Comes now the State, by and through it’s District Attorney of Fort Bend

County, and respectfully submits to the Court its petition for discretionary review

pursuant to the Texas Rules of Appellate Procedure in the above named cause.

                         STATEMENT OF THE CASE

      Thomas Andrew Evans, II, (hereinafter referred to as “Evans”) drove his


                                         3
Toyota Tundra pickup truck through an intersection and struck a Chevrolet Traverse,

causing the Traverse to flip over several times. The two occupants of the Chevrolet

Traverse were transported to the hospital for their injuries. Evans smelled of alcohol,

had red, glassy eyes, and slurred his speech when he was interviewed by the

responding DPS Trooper. Evans admitted drinking two to three beers. Evans refused

to participate in field sobriety tests and refused to give a sample of his blood. The

Trooper ultimately took a sample of Evans blood over Evans’s objection in keeping

with Texas Transportation Code section 724.012(b)(1)(C).

                 STATEMENT OF PROCEDURAL HISTORY

      Evans filed a motion to suppress in the trial court, arguing that the involuntary

blood draw violated the Fourth Amendment to the United States Constitution. The

trial court denied that motion, and Evans then entered into a plea bargain agreement

with the State, retaining his right to appeal the trial court’s ruling.

      On February 10, 2015, the Fourteenth Court of Appeals reversed the ruling of

the trial court and remanded the case to the trial court. The State filed a motion for

rehearing and a motion for en banc reconsideration on February 24, 2015. The

Fourteenth Court of Appeals denied the State’s motion for rehearing and motion for

en banc reconsideration (Boyce, J., would grant reconsideration en banc), on March

17, 2015.

                                            4
                           GROUND FOR REVIEW

      Did the Fourteenth Court of Appeals err in holding that there is no way in

which the mandatory blood draw taken in this case was reasonable under the Fourth

Amendment to the United States Constitution, in reliance on this Court’s opinion in

State v. Villarreal?

                       ARGUMENT AND AUTHORITIES

      The Fourteenth Court of Appeals, in reversing the trial court’s denial of

Evans’s motion to suppress the mandatory blood draw in this case, held that implied

consent could not justify the warrantless blood draw in this case where Evans

withdrew his consent. Evans v. State, No. 14-13-00642, 2015 WL 545702 at *8 (Tex.

App.—Houston [14th Dist.] Feb. 10, 2015). The Fourteenth Court of Appeals based

this holding on this Court’s opinion in State v. Villarreal, No. PD-0306-14, 2014 WL

6734178 (Tex. Crim. App. Nov. 26, 2014). Id.

      The State raised numerous other grounds in support of its argument that the

warrantless blood draw in this case was permissible under the Fourth Amendment,

which were not addressed in the Fourteenth Court of Appeals’ opinion, including that

the warrantless blood draw was justified under the “special needs doctrine” under

Maryland v. King, 133 S.Ct. 1958, 1980 (2013), Skinner v. Ry. Labor Executives’

Ass’n, 489 U.S. 602, 620-21 (1989), and Griffin v. Wisconsin, 483 U.S. 868, 873

                                         5
(1987). The Fourteenth Court of Appeals’ opinion, while not addressing the State’s

argument in this vein necessarily impliedly overruled that argument.

      The Fourteenth Court of Appeals also did not address the State’s argument that

Article 38.23 of the Texas Code of Criminal Procedure should not be read to require

exclusion of the blood draw evidence obtained in this case in light of the fact that the

officers were acting in reliance on the body of case law which read Chapter 724 of

the Texas Transportation Code to mandate blood draws without warrants. See, e.g.,

Beeman v. State, 86 S.W.3d 613, 616 (Tex. Crim. App. 2002); Douds v. State, No. 14-

12-00642-CR, 2013 WL 5629818 (Tex. App.—Houston [14th Dist.] Oct. 15, 2013),

rev’d by Douds v. State, 434 S.W.3d 842 (Tex. App.—Houston [14th Dist.] 2014, pet.

granted Sep. 17, 2014). The Fourteenth Court of Appeals’ opinion, while not

addressing the State’s argument in this vein necessarily impliedly overruled this

argument as well.

      This Court has since granted the State’s motion for rehearing in State v.

Villarreal. The State’s motion for rehearing raised both the issue of the continuing

nature of the defendant’s consent despite his attempt to withdraw that consent and the

applicability of the special needs doctrine. See State’s Motion for Rehearing and

Amended Motion for Rehearing in State v. Villarreal attached hereto as Exhibit B in

the attached appendix. Being that these issues are considered worthy of this Court’s

                                           6
reconsideration in Villarreal, this Court should grant the State’s petition for

discretionary review in this case to address these same issues here.

                             PRAYER FOR RELIEF

      WHEREFORE, PREMISES CONSIDERED, Appellee, the State of Texas

prays that the State’s Petition for Discretionary Review be granted, that the case be

set for submission, and that after submission, this Court reverse the decision of the

Court of Appeals.

                                              Respectfully submitted,

                                              John F. Healey, Jr.


                                              /s/ Jason Bennyhoff
                                              Jason Bennyhoff
                                              Assistant District Attorney
                                              Fort Bend County, Texas
                                              TBC# 24050277
                                              309 South Fourth Street, 2nd Floor
                                              Richmond, Texas 77469
                                              281-341-4460 (office)
                                              281-238-3340 (fax)




                                          7
                          CERTIFICATE OF SERVICE

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

Petition for Discretionary Review (and its appendix) has been served upon

Douglas Durham, counsel for Thomas Andrew Evans, II, at

durham.doug@yahoo.com by way of the Efile Texas electronic delivery system on

the date of the filing of the original of this document, and that these documents are

being served by U.S. mail on counsel for Thomas Andrew Evans, II, and upon the

State Prosecuting Attorney by U.S. mail on the date of the filing of the original in

this case.

                                              /s/ Jason Bennyhoff

                                              Jason Bennyhoff

Certificate of Compliance with Texas Rule of Appellate Procedure 9.4(i)(3)

In accordance with Texas Rule of Appellate Procedure 9.4(i)(3), I, Jason Bennyhoff,

hereby certify that the foregoing electronically created document has been reviewed

by the word count function of the creating computer program, and has been found to

be in compliance with the requisite word count requirement in that its word count in

its entirety is 1,423 words.

                                              /s/Jason Bennyhoff

                                              Jason Bennyhoff

                                          8
                                   APPENDIX

Exhibit A - Fourteenth Court of Appeals opinion in Evans v. State

Exhibit B - Order granting rehearing, State’s Motion for Rehearing and Amended

      Motion for Rehearing in State v. Villarreal




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