                                                                                PD-0838-15
                          PD-0838-15                           COURT OF CRIMINAL APPEALS
                                                                               AUSTIN, TEXAS
                                                               Transmitted 7/6/2015 4:08:04 PM
                                                                 Accepted 7/7/2015 4:13:42 PM
                                                                                ABEL ACOSTA
                                  No.                                                   CLERK
                                In the
                     COURT OF CRIMINAL APPEALS
                               For the
                          STATE OF TEXAS


                         THE STATE OF TEXAS
                               Petitioner
                                    v
                           ALLEN TERCERO
                              Respondent


On State=s Petition for Discretionary Review from the First Court of Appeals,
                       Appeal Number 01-14-00120-CR
On Appeal from the 434th District Court of Fort Bend County, Texas, Cause
                           Number 10-DCR-056111


          STATE=S PETITION FOR DISCRETIONARY REVIEW



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

                                   JASON BENNYHOFF
                                   ASSISTANT DISTRICT ATTORNEY
                                   FORT BEND COUNTY, TEXAS

                                   301 Jackson Street
                                   Richmond, Texas 77469
                                   281-341-4460 (Tel.)
                                   281-238-3340 (Fax)
      July 7, 2015                 jason.bennyhoff@fortbendcountytx.gov
                        IDENTIFICATION OF PARTIES

       Pursuant to Tex. R. App. P. 38.1, a complete list of the names of all interested
parties is provided below so the members of this Honorable Court may at once
determine whether they are disqualified to serve or should recuse themselves from
participating in the decision of the case.

Petitioner:
THE STATE OF TEXAS

Respondent:
ALLEN TERCERO

Counsel for Respondent:
LESLIE LEGRAND
(AT TRIAL AND ON APPEAL)

Address(es):
2000 Smith Street
Houston, Texas 77002

Counsel for Petitioner/State:
JOHN F. HEALEY, JR.
District Attorney of Fort Bend County, Texas
Fort Bend County District Attorney’s Office

Address(es):
301 Jackson Street, Rm 101
Richmond, Texas 77469

ABDUL FARUKHI
Assistant District Attorneys, Ft. Bend County, Tx.
(AT TRIAL)

JASON BENNYHOFF
Assistant District Attorney, Ft. Bend County, Tx.
(ON APPEAL)


                                          ii
IDENTIFICATION OF PARTIES (cont.)

JOHN J. HARRITY, III
Assistant District Attorney, Ft. Bend County, Tx.

Trial Judge:
The Hon. James Shoemake
434th District Court
Fort Bend County, Texas




                                      iii
                                         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 warrantless 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 ............................................................................................ 8

CERTIFICATE OF SERVICE .................................................................................. 9

APPENDIX .............................................................................................................. 10




                                                           iv
                                         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.CHouston
[14th Dist.] Oct. 15, 2013), rev=d by Douds v. State, 434 S.W.3d 842 (Tex.
App.CHouston [14th Dist.] 2014, pet. granted Sep. 17, 2014) ................................. 6

State v. Tercero, No. 01-14-00120-CR, 2015 WL 1544519 at *4 (Tex.
App.CHouston [1st Dist.] Apr. 2, 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

State v. Jackson, PD-0823-14, 2015 WL 4024293 at *9 (Tex. Crim. App. Jul. 1,
2015) .......................................................................................................................... 7




                                                                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


                             THE STATE OF TEXAS
                                   Petitioner
                                        v
                               ALLEN TERCERO
                                  Respondent


On State=s Petition for Discretionary Review from the First Court of Appeals,
                       Appeal Number 01-14-00120-CR
On Appeal from the 434th District Court of Fort Bend County, Texas, Cause
                           Number 10-DCR-056111


           STATE=S PETITION FOR DISCRETIONARY REVIEW

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

      Comes now the State, by and through its 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

      Allen Tercero, hereinafter referred to as “Tercero,” was seen by Sugar Land

Police officers driving a vehicle late at night with a flat tire. The officers followed

Tercero into a nearby parking lot, and upon approaching Tercero, observed him to


                                          3
smell of alcohol, have bloodshot eyes, and slow, slurred speech. Tercero refused to

perform field sobriety tests and was arrested for driving while intoxicated. The

officers learned that Tercero had two prior convictions for driving while intoxicated,

and based on this, they transported Tercero to a nearby hospital and obtained a

“mandatory” blood draw over Tercero’s objection.

      Tercero moved to suppress the blood evidence relying on the Supreme

Court’s decision in Missouri v. McNeely, which was decided after he was arrested on

this charge.   The trial court granted Tercero’s motion to suppress the blood

evidence on the grounds that the taking of Tercero’s blood without a warrant

violated the Fourth Amendment to the United States Constitution under the rationale

in McNeely.

                 STATEMENT OF PROCEDURAL HISTORY

      Tercero 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 granted that motion, and the State appealed that ruling.

      On April 2, 2015, the Fourteenth Court of Appeals affirmed the ruling of the

trial court. The State filed a motion for rehearing and a motion for en banc

reconsideration on April 14, 2015. The First Court of Appeals denied the State=s

motion for rehearing and motion for en banc reconsideration on June 30, 2015.


                                          4
                            GROUND FOR REVIEW

       Did the First Court of Appeals err in holding that there is no way in which the
warrantless 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 First Court of Appeals, in affirming the trial court’s grant of Tercero’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 Tercero withdrew his

consent. State v. Tercero, No. 01-14-00120-CR, 2015 WL 1544519 at *4 (Tex.

App.CHouston [1st Dist.] Apr. 2, 2015). The First 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 also found unconvincing by the First Court of Appeals, including that

the warrantless blood draw was justified under the Aspecial 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

(1987). The First Court of Appeals= opinion also overruled that argument, holding

that a Fourth Amendment balancing test was not to be used to uphold the officers’

                                          5
taking of Tercero’s blood. Tercero, 2015 WL 1544519 at *6.

      The First Court of Appeals also found unconvincing 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.CHouston [14th Dist.] Oct. 15,

2013), rev=d by Douds v. State, 434 S.W.3d 842 (Tex. App.CHouston [14th Dist.]

2014, pet. granted Sep. 17, 2014).

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

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




                                           6
       The concurrence in State v. Jackson, PD-0823-14, 2015 WL 4024293 at *9

(Tex. Crim. App. Jul. 1, 2015), Hervey, concurring, also addressed the application

of the exclusionary rule embodied in Texas Code of Criminal Procedure article

38.23 and discussed how the application of the exclusionary rule should not be

applied in that case because it would not serve the ends of the exclusionary rule in

that it would not have prevented police misconduct. The State would urge the

Court to adopt that stance with regard to the blood evidence in this case as the

officers were acting under a reasonable understanding that the statute in question

authorized their act and they did not intend, nor were they argued to have intended

any illegality.




                                         7
                             PRAYER FOR RELIEF

           WHEREFORE, PREMISES CONSIDERED, Petitioner, 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)




                                          8
                           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 Leslie LeGrand,

counsel for Allen Tercero, at brittanyb@texasdwilaw.com, said email address

having been verified as a correct email address for Mr. LeGrand’s legal secretary,

and that these documents are being served by U.S. mail on counsel for Allen

Tercero, 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 1,690 words.

                                            /s/Jason Bennyhoff

                                            Jason Bennyhoff




                                           9
                                   APPENDIX

Exhibit A - First Court of Appeals opinion in State v. Tercero

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

      Motion for Rehearing in State v. Villarreal




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