NO. PD-___________ AND PD-____________

IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF TEXAS 

ELIAS ESEQUIEL VASQUEZ, Appellant 

vs. 

THE STATE OF TEXAS, Appellee 

APPELLANT VASQUEZ’S PETITION FOR DISCRETIONARY REVIEW 

OF THE JUDGMENT AND OPINION IN 

CAUSE NOS. 04-13-00338-CR AND 04-13-00339-CR

Respectfully submitted by 

Appellant's attorney, 

VICTORIA GUERRA 

Texas Bar No. 08578900 

320 W. Pecan Blvd. 

McAllen, Texas 78501 

(956) 618-2609

(956) 618-2553 Fax 

ORAL ARGUMENT WAIVED 

UNLESS REQUESTED BY COURT 

PD-0235&0236

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 2/27/2015 5:41:45 PM

Accepted 3/2/2015 11:48:22 AM

ABEL ACOSTA

CLERK
ii

IDENTITY OF PARTIES AND COUNSEL 

Elias Esequiel Vasquez (hereinafter “Appellant” or “Mr. Vasquez”) 

certifies that below is a complete list of all parties to the trial court’s 

judgment and their trial counsel’s names, addresses and telephone 

number. 

1. Mr. Vasquez, resides in the I.D.T.D.C.J., Ney Unit, 114 Private Road 

4303, Hondo, TX 78861-3812. His TDCJ number is: #01855231 . 

2. Mr. Vasquez’s trial attorney was Juan Eduardo Garcia, whose office 

address is 102 Texas Ave.; phone number: (956) 487-3739. 

Mr. Flores’ appellate counsel is the undersigned, Victoria Guerra, whose 

address is 3219 N. McColl Rd., McAllen, TX 78501; phone number: (956) 

618-2609; facsimile: (956) 618-2553; email: vguerralaw@gmail.com . 

3. Appellee is the State of Texas. 

4. Appellee is represented by the Starr County Criminal District Attorney 

Omar Escobar and ADA Marty Garcia Vela. Their address is: 3rd Floor, 

Suite 417, Starr County Courthouse, Rio Grande City, Texas 78582. On 

appeal, Appellee is represented by John A. Olson. His contact information 

is as follows: 20634 Creek River, San Antonio, TX 78259; 210-307-0336 

(phone). 

5. This case was heard by the Trial Court, Judge Ana Lisa Garza, and by a 

panel of three judges on the Thirteenth Court of Appeals who affirmed the 

judgment of the Trial Court. 

 

 /s/ Victoria Guerra 

 Victoria Guerra 
iii

TABLE OF CONTENTS 

TABLE OF CONTENTS.................................................................iii 

LIST OF AUTHORITIES................................................................iv

STATEMENT REGARDING ORAL ARGUMENT...............................1 

STATEMENT OF THE CASE..........................................................2 

STATEMENT OF PROCEDURAL HISTORY.....................................2

GROUNDS FOR REVIEW..............................................................3

ARGUMENT AND AUTHORITIES..................................................4

CONCLUSION AND PRAYER.........................................................7

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

APPENDIX.................................................................................. 
iv

INDEX OF AUTHORITIES 

Cases 

Abel v. United States, 362 U.S. 217 (U.S. 1960) ......................................... 5 

McDuff v. State, 939 S.W.2d 607 (Tex. Crim. App. 1997) ........................... 4 

Miller v. State, 335 S.W.3d 847 (Tex. App.—Austin 2011, no pet.) ............. 5 

Smith v. State, 286, S.W.3d 333 (Tex. Crim. App. 2009) ............................ 4 

Texas Rules of Appellate Procedure 

9.4(i) (l) ....................................................................................................... 9 

9.4(i)(3) ....................................................................................................... 9 
1

NO. PD-______ AND PD-________

IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF TEXAS 

ELIAS ESEQUIEL VASQUEZ, Appellant 

vs. 

THE STATE OF TEXAS, Appellee 

_______________________________________________________

APPELLANT VASQUEZ’S PETITION FOR DISCRETIONARY REVIEW 

TO THE HONORABLE COURT OF CRIMINAL APPEALS: 

 COMES NOW ELIAS, Appellant in the above styled cause, and 

respectfully urges this Court to grant discretionary review of the above 

cause. 

STATEMENT REGARDING ORAL ARGUMENT

Appellant waives oral argument, unless this Court deems that oral 

argument is necessary. 
2

STATEMENT OF THE CASE 

Appellant was indicted on or about June 23, 2011 in a single count 

indictment, alleging that Defendant, on or about the 27th day of March, 

2011, and before the presentment of this indictment, in Starr County, 

Texas, did then and there operate a motor vehicle in a public place while 

intoxicated by reason of the introduction of a combination of alcohol and 

marijuana into the body, and did by reason of such intoxication cause the 

death of another, namely, Guillermo Olivares, III, by accident or mistake, 

to-wit: by driving his motor vehicle into the motor vehicle of the said injured 

party. C14.1

STATEMENT OF PROCEDURAL HISTORY 

 On August 27, 2012, Mr. Vasquez plead guilty to the indictment. 

5R20. On November 27, 2012, Mr. Vasquez sought to have his plea of 

guilty set aside. 6R4; C91, 104, 112. The Trial Court granted Mr. Vasquez’s 

motion to set aside his plea. 8R5, C186. Jury selection for Mr. Vasquez’s 

trial began on April 29, 2013. 12R41. Mr. Vasquez plead guilty before the 

jury on April 30, 2013. The sentencing trial before the jury began on May 3, 

 

1

 The companion case, appellate cause number 04-13-00339-CR arising from 

cause number 11-CRS-272 pertains to the charge of intoxication assault. The Trial 

Court consolidated these two cases. C449. Both cases arose out of the same incident 

and occurrence. The records are identical for all intents and purposes. However, the 

documents are in different order. Mr. Vasquez sees no reason why the two cases 

cannot be handled together. 
3

2013. 14R18. The jury assessed a sentence of thirteen years confinement 

in the Texas Department of Criminal Justice and a fine of $ 10,000. 

14R394, 399; C595. Mr. Vasquez filed a motion for new trial on May 29, 

2013. C598. It appears that no hearing on this motion for new trial 

occurred. C10. Mr. Vasquez timely perfected his appeal. (Supplemental 

Clerk’s Record).

GROUNDS FOR REVIEW

ISSUE NO. 1: WHETHER THE FOURTH COURT OF 

APPEALS ERRED IN HOLDING THAT MR. VASQUEZ HAD 

ABANDONED THE VEHICLE HE WAS DRIVING, THEREBY 

DIVESTING HIM OF FOURTH AMENDMENT PROTECTION
4

ARGUMENT

ISSUE NO. 1: WHETHER THE FOURTH COURT OF 

APPEALS ERRED IN HOLDING THAT MR. VASQUEZ HAD 

ABANDONED THE VEHICLE HE WAS DRIVING, THEREBY 

DIVESTING HIM OF FOURTH AMENDMENT PROTECTION 

Appellant seeks review of the Court of Appeals’ reliance and 

interpretation of McDuff v. State, 939 S.W.2d 607, 616 (Tex. Crim. App. 

1997), which is misplaced. 

 There exists a fundamental error in this Court’s opinion that skews 

this Court’s analysis and result. Specifically, this Court’s opinion was based 

not on the purported lack of standing of Mr. Vasquez to complain of a 

violation of his expectation of privacy when the police stole, in violation of 

the Fourth Amendment to the United States Constitution, the EDR from the 

GMC Canyon which Mr. Vasquez was driving. 

 Utilizing McDuff v. State, 939 S.W.2d 607, 616 (Tex. Crim. App. 

1997), this Court held that Mr. Vasquez voluntarily discarded, left behind, or 

otherwise relinquished his interest in property so that he could no longer 

retain a reasonable expectation of privacy with regard to it at the time of the 

search. No evidence exists to support this theory that appeared for the first 

time in the State’s brief and was not raised at the trial court by the State. 
5

Abandonment of property occurs only “if the defendant intended to 

abandon the property and his decision to abandon it was not due to police 

misconduct.” McDuff, 939 S.W.2d at 616. 

 In Miller v. State, 335 S.W.3d 847 (Tex. App.—Austin 2011, no pet.) 

the court drew a distinction between voluntary and involuntary 

abandonment. In that case, the defendant, a police officer accidentally left 

a personal thumb drive which contained child pornography and police 

activity reports in a patrol-room computer. The court noted in footnote 4 

that abandonment of property occurs only if the defendant intended to 

abandon the property and his decision to abandon it was not due to police 

misconduct (citing McDuff, 939 S.W.2d at 616) and it was undisputed that 

the defendant’s abandonment of his thumb drive was unintentional. See 

Miller, 335 S.W.3d at 858. 

 In Matthews v. State, 431 S.W.3d 596 (Tex. Crim. App. 2014), the 

Court of Criminal Appeals held that the defendant had abandoned the 

borrowed vehicle when he took off running after the police conducted a 

stop. 

 Even the United States Supreme Court has addressed the 

abandonment issue. In Abel v. United States, 362 U.S. 217 (U.S. 1960), 

the defendant who was illegally present in the United States, and who was 
6

under suspicion of espionage by the FBI, was arrested in a hotel room. 

During the search of the hotel room, a forged birth certificate was found in 

the trash can of the hotel room. The Court held that it was lawful to seize 

items thrown away in the wastepaper basket where the defendant had 

abandoned the articles contained in the basket by throwing them away. 

 None of those situations exist here which establish intentional 

abandonment of the vehicle. Mr. Vasquez was lying on the ground at the 

time of the collision. 14R31, 78. Mr. Vasquez was nonresponsive at the 

collision scene. 14R32, 78. District Attorney investigator Trinidad Lopez 

called for medical assistance. 14R31. 

 Meanwhile, the State maintained control over the vehicle. On or 

about January 3, 2012, a subpoena was issued to obtain the EDR from 

Rey’s Auto Parts. CR291; 10R13–14. Although investigator Homer Flores 

initially obtained the EDR from the wrong vehcile pursuant to a grand jury 

subpoena, he later obtained the correct EDR without a warrant. 10R14. No 

evidence exists that Mr. Vasquez intentionally abandoned said vehicle. 

Even if he wanted to obtain return of the vehicle, he could not have 

because it was still in the State’s custody, as the State needed it to obtain 

evidence as on January 3, 2012 and thereafter. Id. 
7

 It should also be strongly noted that the abandonment issue was not 

raised in the trial court and Mr. Vasquez nor the trial court had no 

opportunity to address said abandonment issue at said time. 

 As such, no evidence exists that Mr. Vasquez intentionally 

abandoned the vehicle at issue. The judgment of the trial court and opinion 

of the appellate court should be vacated, reversed, and this case should be 

remanded to the trial court for a new trial. 

CONCLUSION AND PRAYER 

 WHEREFORE, Mr. Vasquez prays that this Court vacate and reverse 

the appellate court’s and trial court’s decisions and remand this case to the 

trial court for a new trial. Mr. Vasquez also prays that this Court grant such 

other relief to which he is justly entitled. 

 Respectfully submitted, 

 Law Office of Victoria Guerra 

 3219 N. McColl Rd. 

 McAllen, Texas 78501 

 (956) 618-2609 

 (956) 618-2553 (facsimile) 

 

 By: /s/ Victoria Guerra 

 Victoria Guerra 

 State Bar Number: 0857900 

 Appellate Attorney for Appellant 
8

CERTIFICATE OF SERVICE

 On this 27th day February, 2015, the undersigned delivered a copy of 

the foregoing Appellant’s brief to Appellee’s Counsel 

jaolson_ccda@yahoo.com or his facsimile: 210-858-6780 and to the State 

Prosecuting Attorney at its fax: (512) 463-5724. 

 /s/ Victoria Guerra 

 Victoria Guerra 

 Attorney for Appellant 

CERTIFICATION OF COMPLIANCE

 In compliance with TRAP 9.4(i)(3), the undersigned certifies that the 

number of words in this brief, excluding those matters listed in Rule 9.4(i) 

(l), is 1092. 

 /s/ Victoria Guerra 

 Victoria Guerra
Fourth Court of Appeals

San Antonio, Texas

MEMORANDUM OPINION

No. 04-13-00338-CR

No. 04-13-00339-CR

Elias Esequiel VASQUEZ, 

Appellant 

v. 

The 

The STATE of Texas,

Appellee

From the 229th Judicial District Court, Starr County, Texas 

Trial Court Nos. 11-CRS-270 & 11-CRS-272 

Honorable Ana Lisa Garza, Judge Presiding 

Opinion by: Sandee Bryan Marion, Justice 

Sitting: Karen Angelini, Justice

 Sandee Bryan Marion, Justice 

 Marialyn Barnard, Justice 

Delivered and Filed: December 10, 2014 

AFFIRMED

At around 11:00 p.m., on February 27, 2011, appellant was involved in an automobile 

accident that resulted in the death of Guillermo Olivares III and bodily injury to Yadira Pena. 

Appellant pled guilty to intoxication manslaughter in the death of Olivares and guilty to 

intoxication assault for the injuries sustained by Pena. A jury assessed punishment. In both 

appeals, appellant asserts the trial court erred by denying his motion to suppress. We affirm the 

trial court’s judgment in both cases. 
04-13-00338-CR & 04-13-00339-CR

BACKGROUND

At the time of the accident, appellant was driving a maroon 2005 GMC Canyon owned by 

his mother, who had consented to his using the vehicle. After the accident, the vehicle was towed 

to a salvage yard. The complainants’ vehicle, a 2008 Silverado, also was towed to the same salvage 

yard. Approximately eleven months after the accident, an investigator with the Starr County 

District Attorney’s Office went to the salvage yard to obtain the electronic data recorder (“the 

EDR”) from one of the vehicles. Joel Diaz, who managed the salvage yard, testified he was 

approached by the investigator who gave him a grand jury subpoena duces tecum for the Silverado. 

Diaz gave the investigator the EDR from the Silverado. About one week later, an investigator 

from the District Attorney’s Office returned to the salvage yard, and told Diaz he had taken the 

EDR from the wrong vehicle, and he needed the EDR from the GMC Canyon. Diaz said the 

investigator had no paperwork with him; nevertheless, Diaz gave the investigator the EDR from 

the GMC Canyon. Appellant later filed a motion to suppress the EDR on the grounds it was 

illegally obtained. The trial court denied his motion, and these appeals ensued. 

STANDING

In these appeals, we must decide whether appellant had standing to challenge the State’s 

obtaining the EDR from the GMC Canyon. “The rights protected by the Fourth Amendment to 

the U.S. Constitution and Article I, Section 9, of the Texas Constitution are personal.” Matthews 

v. State, 431 S.W.3d 596, 606 (Tex. Crim. App. 2014). “As such, [a defendant] must show that 

the search violated his, rather than a third party’s, legitimate expectation of privacy.” Id. (emphasis 

in original). A defendant seeking to suppress evidence obtained in violation of the Fourth 

Amendment must, therefore, show (1) that he exhibited an actual “subjective expectation of 

privacy in the place invaded,” and (2) that “society is prepared to recognize that expectation of 

privacy as objectively reasonable.” State v. Betts, 397 S.W.3d 198, 203 (Tex. Crim. App. 2013). 

- 2 - 
04-13-00338-CR & 04-13-00339-CR

Only after a defendant has established his standing to complain may a court consider whether he 

has suffered a substantive Fourth Amendment violation. Kothe v. State, 152 S.W.3d 54, 59 (Tex. 

Crim. App. 2004). Standing is reviewed de novo because it is a question of law. Id. In a motion 

to suppress, the movant has the burden to establish standing. State v. Klima, 934 S.W.2d 109, 110 

(Tex. Crim. App. 1996). 

A person has an expectation of privacy in a vehicle that he does not own if he has gained 

possession of the car from the owner with the owner’s consent or from someone authorized to give 

permission to drive it. See Matthews, 431 S.W.3d at 607-08. In this case, appellant’s mother 

testified she gave appellant permission to drive her GMC Canyon. Therefore, at the time of the 

accident, appellant had both a subjective and reasonable expectation of privacy in his mother’s 

GMC Canyon. See id. at 610. 

However, a party lacks standing to object to the reasonableness of a search of abandoned 

property. McDuff v. State, 939 S.W.2d 607, 616 (Tex. Crim. App. 1997). Abandonment of 

property occurs when the defendant intends to abandon the property and his decision to abandon 

it is not due to police misconduct. Id. “When police take possession of abandoned property 

independent of police misconduct[,] there is no seizure under the Fourth Amendment.” Id. 

Abandonment is primarily a question of intent that can be inferred from the words and actions of 

the parties and other circumstances surrounding the alleged abandonment. Id. The dispositive 

issue is whether the defendant voluntarily discarded, left behind, or otherwise relinquished his 

interest in property so that he could no longer retain a reasonable expectation of privacy with 

regard to it at the time of the search. Id.

Shortly after the accident, the GMC Canyon was towed to the salvage yard. Nothing in the 

record indicates either appellant or his mother attempted to regain possession of the vehicle in the 

almost eleven months following the February 27, 2011, accident. The investigator obtained the 

- 3 - 
04-13-00338-CR & 04-13-00339-CR

GMC Canyon’s EDR from Diaz on January 3, 2012. Diaz testified he has a Texas Nonrepairable 

Vehicle title to the GMC Canyon, and the State introduced a document showing the current owner 

of the vehicle to be State Farm County Mutual. This document also stated: “Registration invalid. 

. . . Nonrepairable Vehicle Title Issued. Tx Title Surrendered on 2011/05/13. . . . Salvaged on 

2012/07/18. Evidence Surrendered: Tx Nonrepair Cert of Title . . . .” On this record, we conclude 

appellant abandoned any reasonable expectation of privacy in his mother’s vehicle. Therefore, he 

lost standing to challenge the State’s obtaining the EDR from the vehicle.

CONCLUSION

We conclude the trial court did not err in denying appellant’s motion to suppress. 

Therefore, we overrule appellant’s issue in both appeals, and affirm the trial court’s judgments. 

Sandee Bryan Marion, Justice 

Do not publish 

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