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No. 03-13-00494-CR

In the

COURT OF APPEALS

For the

THIRD SUPREME JUDICIAL DISTRICT

at Austin

______________________________________

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). 

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 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).

ACCEPTED

03-13-00494-CR

7674999

THIRD COURT OF APPEALS

AUSTIN, TEXAS

11/4/2015 10:23:49 AM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 11/4/2015 10:23:49 AM JEFFREY D. KYLE Clerk
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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.
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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).
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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 
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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 impliedconsent statues on the warrant requirement,” and “the import of McNeely on 

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